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greement, it will be allocated to studies, research or tests agreed by the JSC, and such Alliance Funding will be payable in accordance with agreed milestones relevant to such agreed studies, research or tests. The Parties understand that the compensation being paid to MD Anderson under this Ag<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>y companies involved in the field of research, development and marketing of pharmaceutical products and therapies, including the sponsorship of clinical trials. Whereas MD Anderson is a comprehensive cancer research, treatment, and prevention center, with scientists and technicians in substantive fields relating to cancer research. Whereas the Parties hereby wish to establish a strategic alliance, as further described herein, ("Alliance") whereby Adaptimmune will provide funding and in-kind support for: (a) one or more preclinical studies ("Pre-clinical Studies"); and (b) one or more clinical and related correlative studies ("Clinical Studies") to be conducted by MD Anderson pursuant to this Agreement (each such Clinical Study or Pre-clinical Study, a "Study," and all such Clinical Studies and Pre-clinical Studies, the "Studies."). Now therefore, in consideration of the premises and the mutual covenants and conditions hereinafter recited, the Parties do hereby agree as follows: 1. Subject and Scope of Agreement 1.1 The initial scope of the Alliance will consist of the Studies described in Exhibit I, the details of which are to be mutually agreed upon by the JSC from time to time in accordance with Sections 1.5 - 1.8 below). The Studies and/or the scope of the Alliance may be replaced and/or changed as agreed upon by the JSC. Adaptimmune shall have responsibility for IND filing and monitoring unless otherwise agreed by JSC. The Alliance Funding (defined in Section 1.3 below) will cover enrollment of a minimum of *** Clinical Study subjects into Clinical Studies (with Clinical Studies in this context excluding any screening Study or long term follow-up Study) ("Minimum Patient Numbers"). MD Anderson represents and undertakes that (a) *** and (b) that the *** (together (a) and (b) being the ***): 1.2 Adaptimmune shall be the sponsor of any Clinical Study. MDACC shall be responsible for the conduct of each Study in accordance with the relevant protocol and/or workscope. The Agreement shall govern the performance of Studies by MD Anderson and one or more Principal Investigator(s) on basis of *** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. 1 Study specific documents ("Study Orders") as agreed upon by the Parties. This Agreement shall apply to all Studies set out in the Study Orders performed by MD Anderson and the MD Anderson principal investigator(s) responsible for the performance of such Studies ("Principal Investigator(s)") upon execution of Study Orders during the term of this Agreement. Each Study Order shall be substantially in the form attached as Exhibit III to this Agreement and shall detail the specifics of the Study to be performed under such Study Order including, without limitation, (i) the detailed Protocol or workscope, (ii) the Principal Investigator and (iii) identify any project-specific resources or support provided by Adaptimmune. In the event of any conflict of terms of this Agreement and the terms of a Study Order, the terms of this Agreement shall govern, unless the Study Order specifically and expressly supersedes this Agreement with respect to a specific term, and then only with respect to the particular Study Order and specific term. If there is any discrepancy or conflict between the terms contained in a Protocol or workscope and this Agreement and/or the relevant Study Order, the terms of the Protocol or workscope shall govern and control with respect to clinical/scientific matters and the terms of the Agreement and/or the relevant Study Order in that order shall govern and control with respect to all other matters, e.g., legal and financial matters. 1.3 Adaptimmune agrees to commit funding in an amount of at least nineteen million six hundred and forty four thousand Dollars US ($19,644,000) for the performance of the Studies as set out in Exhibit I during the term ("Alliance Funding"). The JSC may allocate and/or re-allocate funds to Studies as necessary and agreed by JSC. The basic per patient estimate for Clinical Studies is as follows: for screening Clinical Studies: $***, for long term follow-up Clinical Studies: $*** and for other Clinical Studies: $***. If the Parties extend the term by mutual agreement as set forth herein, the Parties shall negotiate in good faith the amount of future Study funding commitments by Adaptimmune applicable to such extended term. In the event a Study is terminated early, then in relation to any funds allocated to such Study, the Parties shall promptly discuss and agree upon a replacement of that Study with a new study of similar scope that is of mutual scientific interest to the Parties and that is approved by the JSC, and that will be funded by the Alliance Funding. If there is any Alliance Funding at the expiration or termination of this A<|eot_id|>
5.635512
5.635512
otts Miracle-Gro Sale or enters into an agreement relating to the provision of information with respect to a potential Scotts Miracle-Gro Sale with any Ag Competitor, Scotts Miracle-Gro agrees to provide Monsanto with timely notice of such proposal and to provide Monsanto with, in the case of (A) above, at least five (5) Business Days after the date of receipt of such notice to respond to such proposal or, in the case of (B) above, at least ten (10) Business Days after the date of receipt of such notice to respond to such proposal, prior to entering into a definitive agreement, letter of intent, memorandum of understanding or similar document with any such entity; and provided further, that during such five (5) or ten (10) Business Day period<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>he income targets for the Roundup L&G Business in each given Program Year. The Annual Business Plan shall also specify the impact which the failure to meet such performance standards may have on the incentive schemes and bonus plans of the individual members of the Global Support Team and those employees who are part of the Business Units in charge of the Roundup L&G Business. Section 2.3 Appointment of Sub-Agents and Sub-Distributors. The Agent shall have the right to delegate part of its obligations under this Article 2 to sub-agents and sub-distributors; provided, however, the Agent shall remain primarily liable for all of its obligations hereunder and shall be primarily liable for any act or omission of any such sub-agent or sub-distributor. To the extent this Agreement creates any obligations on the Agent, such obligations shall apply with respect to any sub-agents or sub- distributors, as the case may be. In connection with the foregoing, any reports or other information to be given to Monsanto shall be given by the Agent and shall include any information applicable to sub-agents or sub-distributors, as the case may be. Section 2.4 Limitations on Agent. Notwithstanding anything in this Agreement to the contrary, the Agent shall not, without the written consent of the Steering Committee, take (or initiate) any of the following actions: (a) Sell Roundup Products at a price or under terms not permitted under the Annual Business Plan; (b) Possess or use any property of Monsanto, except to the extent necessary for Agent to perform its duties and obligations hereunder (e.g., in-store displays); (c) Hold itself out as authorized to make on behalf of Monsanto any oral or written warranty or representation regarding Roundup Products other than what is stated on the applicable Roundup Products label or in other written material furnished to the Agent by Monsanto; or 14 (d) Intentionally dilute, contaminate, adulterate, or substitute any Roundup Products. Section 2.5 Changes to Markets. (a) Subject to the terms of this Section 2.5, the Included Markets, the Activated Included Markets or the Excluded Markets may be amended from time to time as more particularly set forth below. (b) Monsanto agrees that it will not promote, distribute or sell Roundup Products in any Excluded Market (other than the Excluded Specified Markets) without first complying with the provisions of this Section 2.5(b) and Section 2.5(c). Either Monsanto or the Agent may propose to the Steering Committee moving an Excluded Market (other than the Excluded Specified Markets) to the list of Included Markets or commencing distribution of Roundup Products in an Included Market that is not currently being serviced by the Agent and adding such Included Market to Schedule 1.1(a) as an Activated Included Market (any Included Market that is not being serviced by the Agent are "Unactivated Included Markets") by providing a proposal (the "Included Markets Proposal") to the Steering Committee including the proposed (i) term (i.e., duration of amendment or transition period), (ii) adjustment to the calculation for the Commission, and (iii) adjustment to the Commission Thresholds. The parties agree to negotiate in good faith with respect to the terms of any such Included Markets Proposal with the goal of benefitting the Roundup P&L. (c) If the Agent affirmatively rejects an Included Markets Proposal made by Monsanto by delivering a written notice to Monsanto within sixty (60) days after the delivery of the Included Markets Proposal, then such proposed Included Market shall be considered an Excluded Market; and in all Excluded Markets Monsanto shall have the exclusive right to promote, distribute and sell Roundup Products in any such country or countries and otherwise expand Monsanto's Roundup L&G Business; provided, that if, after the Agent rejects an Included Markets Proposal, Monsanto materially changes the economic terms of such Included Markets Proposal in a manner that would have made the Included Markets Proposal more attractive to the Roundup P&L to offer it to another agent or distributor, such revised proposal shall be treated as a new Included Markets Proposal for purposes of this Section 2.5 except that the Agent shall have a thirty (30) day period in lieu of the sixty (60) day period set forth above. (d) The Steering Committee may either accept or reject any Included Markets Proposal made to the Steering Committee pursuant to Section 2.5(b) in its sole and reasonable discretion; provided, that the Steering Committee shall not reject any Included Markets Proposal unless it is reasonably demonstrable that the acceptance of such Included Markets Proposal would have an adverse effect on Monsanto balanced against the potential benefit to the Roundup P&L; provided, further, that, without the prior written consent of the Agent, the Steering Committee may not accept any proposal to remove an Included Market, unless Monsanto can reasonably demonstrate that the continued inclusion of such Included Market would have a significant adverse effect on Monsanto balanced against the benefits to the Roundup P&L. The parties agree that any disputes arising under this Section 2.5(d) will be resolved in the manner set forth in Section 10.4(g). 15 (e) Subject to Section 2.5(d), if the Steering Committee accepts the proposal for modification, then the modifications to the Included Markets or Excluded Markets shall, without further action or amendment, be included within the definition of Included Markets or Excluded Markets, as the case may be, and subject to the terms and conditions of this Agreement unless the parties otherwise expressly agree in writing, and if such accepted proposal is to activate an Included Market, then such Included Market shall be added to Schedule 1.1(a). (f) Notwithstanding the foregoing, neither party shall have any obligation with respect to any Unactivated Included Market unless and until the Steering Committee approves commencement of distribution of Roundup Products in such market for purposes of this Agreement. Section 2.6 Scotts Miracle-Gro Sale Procedures. (a) Private or Public Sale Process. If, at any time or from time to time, Scotts Miracle-Gro initiates a public or private sale process involving the solicitation of two or more indications of interest in connection with a contemplated Scotts Miracle-Gro Sale, Scotts Miracle-Gro agrees to provide Monsanto timely notice of such process and to offer to include Monsanto in such process on the same basis as other participants therein. (b) Potential Sale to Ag Competitors. If Scotts Miracle-Gro (A) receives an unsolicited proposal with respect to a potential Scotts Miracle-Gro Sale with any Ag Competitor or (B) solicits or makes a formal determination to solicit or make any proposal with respect to a potential Sc<|eot_id|>
5.565669
5.565669
7. Communications To assure proper communication, notification and follow-up in a timely manner by both parties, "Key" contacts are listed in Attachment 1 of this Agreement. Key contacts shall have access to project managers and technical staff and, upon reasonable notice and as required, facilitate resolution of any issues. Every effort will be made by SCIEN to accommodate timely communications, including face-to-face meetings, with HEMISPHERX. 8. Change of Control SCIEN will maintain and follow change control SOP(s) to ensure that changes to equipment, procedures, processes, etc. occur in a controlled manner and in compliance with requirements e defined by the U.S. FDA's regulations (see Section 2). The implementation of any change that may directly impact the integrity of the activities conducted or data being supplied for HEMISPHERX will require prior written approval of HEMISPHERX. SCIEN and HEMISPHERX will advise the appropriate organization's staff member (See Attachment 1) before implementation of a change, by either party, to equipment, procedures, specifications, processes, clinical protocols, product claims or facilities directly related to HEMISPHERX's specific products and processes. Each party agrees to review the proposed change in a timely manner and, at its discretion, may audit and/or request an alternative or additional change prior to the implementation of the proposed change. The respective party will review the proposed change, determine if it is reasonably practicable to implement the change and can suggest alternative or additional changes prior to the implementation of the proposed change. Change control requirements should be articulated within the specific operation's documentation practices. HEMISPHERX is responsible for assuring changes are in accordance with and/or reported to the investigational, marketing and/or any other filing with regulatory agencies (IND, IMPD, CTA, NDA, MA, etc.) and for informing SCIEN of any changes requested by regulatory agencies. SCIEN agrees to keep HEMISPHERX fully informed of any and all communications with regulatory agencies that may affect the services being provided to HEMISPHERX by SCIEN. This Agreement is not meant to supersede or replace controlled documents typically used to define and record the work to be conducted by SCIEN for HEMISPHERX. Specific requirements of this Agreement and/or any service contracts shall be articulated within SCIEN's current operating procedures and documentation systems. 9. Responsibilities SCIEN is responsible for: 1) case management support services to patients and maintain a 24-hour/365-day a year telephone service for assistance of prescription drug-related medical emergencies to patients 2) the distribution of product, including the shipping, handling and storage and all rules and regulations of every governmental authority having jurisdiction over the shipping, handling, storage, distribution, and dispensing of Product {***} Confidential portions of this exhibit have been redacted and filed separately with the Commission pursuant to a confidential treatment request in accordance with Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Page 20 of 28 3) confirming the product labelling requirements in the territory 4) conforming to all labeled specifications concerning the shipping, handling and storage of Product 5) notifying HEMISPHERX of any unacceptable storage or handling deviation within one (1) business day 6) inspecting all product shipments received by SCIEN from HEMISPHERX and reporting any damage, defect, loss in transit, or other shipping errors to HEMISPHERX within one (1) business days of receipt by SCIEN 7) administering recalls, field alerts, warning letters, quarantines or withdrawals in accordance with HEMISPHERX instructions (See Attachment 2) 8) administering HEMISPHERX's Returned Goods Policy (See Attachment 3) 9) immediately (within 24 hours of becoming aware of event) notifying HEMISPHERX of any serious and unexpected side effects (Adverse Experiences reported to SCIEN, as defined by 21CFR 314.80 and 21CFR 312.32)) 10) providing HEMISPHERX with written Adverse Experience Reports (at the latest day 4 after becoming aware of event) 11) notifying the Regulatory Authorities within the Territory of any reportable adverse experiences 12) notifying the Regulatory Authorities within the Territory of any suspected counterfeiting or tampering except as required different by law 13) obtaining program approval from appropriate regulatory agencies in the Territory 14) keeping HEMISPHERX fully informed of any and all communications with regulatory agencies that<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>actice; an adverse event occurring from overdose of the product whether accidental or intentional; an adverse event occurring from abuse of the product; an adverse event occurring from withdrawal of the product; and any failure of expected pharmacological action. Disability: A substantial disruption of a person's ability to conduct normal life functions. Life-threatening adverse experience: Any adverse experience that places the patient, in the view of the initial reporter, at immediate risk of death from the adverse experience as it occurred, i.e., it does not include an adverse experience that, had it occurred in a more severe form, might have caused death. Labeled event: An adverse experience that is listed on the product insert as having been observed in patients who are receiving the drug product. {***} Confidential portions of this exhibit have been redacted and filed separately with the Commission pursuant to a confidential treatment request in accordance with Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Page 18 of 28 Drug Product: A finished dosage form, for example, tablet, capsule, or solution that contains an active ingredient generally, but not necessarily, in association with inactive ingredients Serious adverse experience: Any adverse experience occurring at any dose that results in any of the following outcomes: Death, a life-threatening adverse experience, inpatient hospitalization or prolongation of existing hospitalization, a persistent or significant disability/incapacity, or a congenital anomaly/birth defect. Important medical events that may not result in death, be life-threatening, or require hospitalization may be considered a serious adverse experience when, based upon appropriate medical judgment, they may jeopardize the patient or subject and may require medical or surgical intervention to prevent one of the outcomes listed in this definition. Unexpected adverse experience: Any adverse experience that is not listed in the current labelling for the biological or drug product. This includes events that may be symptomatically and pathophysiologically related to an event listed in the labelling, but differ from the event because of greater severity or specificity. For example, under this definition, hepatic necrosis would be unexpected (by virtue of greater severity) if the labeling only referred to elevated hepatic enzymes or hepatitis. Similarly, cerebral thromboembolism and cerebral vasculitis would be unexpected (by virtue of greater specificity) if the labeling only listed cerebral vascular accidents. "Unexpected," as used in this definition, refers to an adverse experience that has not been previously observed (i.e., included in the labeling) rather than from the perspective of such experience not being anticipated from the pharmacological properties of the pharmaceutical product. Call report: A list of all questions, requests for circulars, and physician/patient complaints received by SCIEN's Clinical Support Department is prepared monthly by SCIEN staff and is forwarded to HEMISPHERX RA/QA Department. Audit: A systematic examination of processes, controls and systems, operating procedures, reports, records and/or data to assess SCIEN's compliance with standards, regulatory submissions, SOPs; applicable laws, regulations, directives, standards and guidelines; the terms of this Agreement and other contracts in place defining the services being provided and to verify data integrity. Good Clinical Practices ("GCPs"): Good clinical practice (GCP) is an international ethical and scientific quality standard for designing, conducting, recording, and reporting trials that involve the participation of human subjects. Compliance with this standard provides public assurance that the rights, safety, and wellbeing of trial subjects are protected, consistent with the principles that have their origin in the Declaration of Helsinki, and that the clinical trial data are credible. ICH Guidance for Industry: E6 Good Clinical Practice Consolidated Guidance. Good Manufacturing Practices ("GMPs"): The recognized pharmaceutical regulations and requirements of regulatory authorities such as those defined by the U.S. FDA's regulations at 21CFR Parts 210 and 211. Key Contacts: Persons at SCIEN and HEMISPHERX assigned to assure proper communication and follow-up in a timely manner within both parties' organizations. Names, titles and full contact information for Key Contacts shall be appended to this Agreement as Attachment 1 and should be maintained up-to-date during the course of the project. Observation: A statement of fact made during an audit that is substantiated by objective evidence. HEMISPHERX categorizes observations as follows: o Critical: May pose risk to patient or consumer or otherwise compromise the integrity or quality of the material, product, process, or service being provided. Other instances that could be defined as a critical observation include: A practice that poses an immediate safety risk to personnel; Quality System(s) missing or not in compliance with regulations, guidelines, or corporate policies. {***} Confidential portions of this exhibit have been redacted and filed separately with the Commission pursuant to a confidential treatment request in accordance with Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Page 19 of 28 o Major: Does not fully comply with regulations, guidelines or corporate policies and may pose unnecessary risks to the integrity or quality of material, product, process or service being provided. Other instances that could be defined as a major observation include: Likely or probable safety risk to personnel; Quality System(s) weak or needing improvement; repeated Minor deficiencies of a similar nature that indicate a systemic problem and therefore may be classified as Major. o Minor: Does not comply with regulations, guidelines, or corporate policies but does not directly impact the integrity or quality of the material, product, process, or service being provided. o Comment: Compliant with regulations, guidelines and/or corporate policies; however, the auditor comment serves as a recommendation relative to maintaining or improving a specific condition noted. Out-of-Specification / Out-of-Trend ("OOS / "OOT"): A result that is not within the established specifications or trend, whether these are qualitative or quantitative. Standard Operating Procedures ("SOPs"): Procedures in effect at SCIEN that define the processes and controls by and under which activities are to be conducted to assure compliance with the appropriate Code of Federal Regulations.<|eot_id|>
8.990266
8.990266
ites to AT&T Proprietary and Confidential This Agreement and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Vendor except under written agreement by the contracting parties. 41 Source: ATN INTERNATIONAL, INC., 10-Q, 11/8/2019 as contemplated in the Build Addendum and (iv) reimburse AT&T for any AT&T Provided Equipment or other assets that are not installed at a Cell Site and cannot be returned in good working order (based on the acquisition costs plus taxes and shipping costs). Vendor also agrees to assist AT&T in coordinating the transfer of the provision of the Services to a successor contractor, which shall include continuing to provide the required level of Services until the date of expiration or termination and providing the successor contractor with all pertinent information about the Services. For the purposes of clarity and notwithstanding any other provisions herein, no termination under this Agreement shall relieve AT&T's obligation to make Structured Payments with respect to any Cell Sites that have reached Location Acceptance prior to the effective date of such termination and pay any Maintenance Fees for Services performed under the Maintenance Addendum prior to the effective date of such termination. 3.38 Third Party Administrative Services (a) Vendor acknowledges that a third party administrator will perform certain administrative functions for AT&T in relation to this Agreement. Such administrative functions may include: (i) Collecting and verifyin<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>tible of cure, then, in addition to all other rights and remedies at law or Proprietary and Confidential This Agreement and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Vendor except under written agreement by the contracting parties. 39 Source: ATN INTERNATIONAL, INC., 10-Q, 11/8/2019 in equity or otherwise, the non-breaching Party shall have the right upon written notice to immediately terminate this Agreement (which termination shall include the Build Addendum and Maintenance Addendum), and exercise all Termination Remedies set forth in the Build Addendum, except AT&T cannot terminate its obligation to pay Vendor all Structured Payments for Cell Sites that have achieved Location Acceptance prior to the effective date of termination or any Maintenance Fees for Services performed under the Maintenance Addendum prior to the effective date of such termination. Failure of the non- breaching Party to immediately terminate this Agreement (x) following a breach which continues longer than such cure period, provided such breach has not been cured prior to the non-breaching Party's providing notice of termination, or (y) following a breach that cannot be cured or that constitutes a material violation of Laws that is not reasonably susceptible to cure shall not constitute a waiver of the non- breaching Party's rights to terminate. (ii) If Vendor becomes insolvent or generally fails to pay, or admits in writing its inability or refusal to pay, debts as they become due, then AT&T shall have the right upon written notice to immediately terminate AT&T's obligations under this Agreement or the Build Addendum or Maintenance Addendum, as applicable, and exercise all Termination Remedies set forth in the Build Addendum. (iii) If (1) Vendor (A) receives a notice of default (or similar breach or violation) and has not cured such default (or similar breach or violation) within thirty (30) days from the receipt of such notice or (B) is in default under any credit facility or other financing arrangement, (2) any Vendor credit facility or other financing arrangement has been terminated or suspended (other than by Vendor or as a result of an expiration in accordance with its terms) or (3) Vendor no longer has access to funding under any credit facility or other financing arrangement required by Vendor to fulfill its obligations to AT&T under this Agreement, the Master License Agreement, the Transport Agreement and the Roaming Agreement (as such term is defined in the Build Addendum), then Vendor shall promptly, but no later than one (1) business day following Vendor's receipt of notice of any such event, notify AT&T of such event and in addition to all other rights and remedies at law or in equity or otherwise, AT&T shall have the right upon written notice to immediately terminate AT&T's obligations under this Agreement or the Build Addendum or Maintenance Addendum, as applicable, and exercise all Termination Remedies set forth in the Build Addendum; provided, that prior to exercising such termination right, AT&T shall enter into good faith discussions with Vendor to determine if Vendor can obtain alternative financing. (d) Bankruptcy. In addition to all other termination rights set forth herein, this Agreement may be terminated by either Party or either Party may terminate its obligations hereunder, in each case in whole or in part (including terminating only specific addendums or specific Cell Sites), if the other Party files, or has filed against it, any voluntary petition seeking liquidation, reorganization, arrangement or readjustment of its debts or for any other relief under the United States Bankruptcy Code or under any other act or Law pertaining to insolvency or debtor relief, whether state, federal or foreign, now or hereafter existing; or such other Party has filed against Proprietary and Confidential This Agreement and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Vendor except under written agreement by the contracting parties. 40 Source: ATN INTERNATIONAL, INC., 10-Q, 11/8/2019 it any petition which petition seeks any of the foregoing relief or substantive consolidation of the assets of such other Party with a debtor in bankruptcy or liquidation and which is not dismissed within forty-five (45) days after the effective service of same; or the appointment is made of a receiver, custodian or trustee of such other Party or for all or a substantial part of the assets of such other Party. (e) Termination Events. In addition to all other termination rights set forth herein, this Agreement may be terminated by AT&T or AT&T may terminate its obligations hereunder (including terminating only specific addendums or specific Cell Sites), upon the occurrence of (i) any Termination Event (as defined in the Build Addendum) applicable to one or more Cell Sites and upon such termination AT&T may exercise any or all of the Termination Remedies (as defined in the Build Addendum) available to it pursuant to the Build Addendum with respect to such impacted Cell Sites; or (ii) any termination (regardless of the reason therefor) of the Master License Agreement resulting in AT&T's inability to use the impacted Cell Site. (f) Partial Termination - Whenever Law or a provision of this Agreement permits AT&T to terminate this Agreement with respect to a single Cell Site or group of Cell Sites or with respect to either the Build Addendum or Maintenance Addendum, AT&T may, at its option, terminate this Agreement in part with respect to such Addendum or on a Cell Site basis without further liability or obligation; provided that no such termination shall relieve AT&T's obligation to make Structured Payments with respect to any Cell Sites that have reached Location Acceptance prior to the effective date of such termination and pay any Maintenance Fees for Services performed under the Maintenance Addendum prior to the effective date of such termination. The Parties acknowledge that the Build Addendum and Maintenance Addendum include specific partial termination rights on a Cell Site by Cell Site basis, including the Termination Remedies that allow for termination of AT&T's obligations with respect to an individual Cell Site hereunder and special remedies to AT&T in connection with such termination. (g) Termination Charges - AT&T shall not be liable for any termination charges (or any charges for any Material or Services already ordered or performed at the time of termination) in any case when any termination results from a termination right granted to AT&T in this Agreement; provided that AT&T shall remain obligated to make Structured Payments with respect to any Cell Sites that have reached Location Acceptance prior to the effective date of such termination and pay any Maintenance Fees for Services performed under the Maintenance Addendum prior to the effective date of such termination. (h) Obligations upon Expiration or Termination - Upon expiration or termination of this Agreement, but prior to the effectiveness of full termination of the Agreement, AT&T may exercise any rights and remedies available to AT&T under this Agreement, at law or in equity, including AT&T's right to exercise any one or more of the Termination Remedies set forth in the Build Addendum, and Vendor shall, upon the request and at the expense (other than termination in accordance with Subsection (c) hereof) of AT&T: (i) return all papers, materials, equipment, assets and property of AT&T held by Vendor, including title and ownership to all Material, (ii) provide reasonable assistance as may be necessary for the orderly, non-disrupted continuation of the Services, (iii) transfer all of the contracts related to the Cell S<|eot_id|>
3.216606
3.216606
ority is required in connection with the execution and delivery of this Agreement or the issuance of the Shares, except for the approval of the Commission, the OTS and any necessary qualification, notification, registration or exemption under the securities or blue sky laws of the various states in which the Shares are to be offered, and except as may be required under the rules and regulations of the NASD. (v) The Accounting & Consulting Group L.L.P. which has certified the consolidated audited financial statements and schedules of the Bank included in the Prospectus, has advised the Company, the MHC and the Bank in writing that they are, with respect to the Company, the MHC and the Bank, independent public accountants within the meaning of the Code of Professional Ethics of the American Institute of Certified Public Accountants and Title 12 of the Code of Federal Regulations and Section 571.2(c)(3). (w) RP Financial LC, which has prepared the Valuation Appraisal Report as of December ___, 1999 (as amended or supplemented, if so amended or supplemented) (the "Appraisal"), has advised the Company in writing that it is independent of the Company, the MHC and the Bank within the meaning of the MHC Regulations. (x) The Company, the MHC and the Bank have timely filed all required federal, state and local tax returns; the Company, the MHC and the Bank have paid all taxes that have become due and payable in respect of such returns, except where permitted to be extended, have made adequate reserves for similar future tax liabilities and no deficiency has been asserted with respect thereto by<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|> nor the Bank has any material contingent liabilities, except as set forth in the Prospectus. All documents made available to or delivered or to be made available to or delivered by the Bank, the MHC or the Company or their representatives in connection with the issuance and sale of the Shares, including records of account holders, depositors and other members of the Bank, or in connection with the Agent's exercise of due diligence, except for those documents which were prepared by parties other than the Bank, the MHC, the Company or their representatives, to the best knowledge of the Bank, the MHC and the Company, were on the dates on which they were delivered, or will be on the dates on which they are to be delivered, true, complete and correct in all material respects. (r) As of the date hereof and as of the Closing Date, neither the Company, the MHC nor the Bank is (i) in violation of its articles of incorporation or charter or bylaws, respectively, or (ii) in default in the performance or observance of any material obligation, agreement, covenant, or condition contained in any material contract, lease, loan agreement, indenture or other instrument to which it is a party or by which it or any of its property may be bound; the consummation of the Offering, the execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated have been duly and validly authorized by all necessary corporate action on the part of the Company, the MHC and the Bank and this Agreement has been validly executed and delivered by the Company, the MHC and the Bank and is a valid, legal and binding Agreement of the Company, the MHC and the Bank enforceable in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of federal savings institutions, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable 11 law or public policy with respect to the indemnification and/or contribution provisions contained herein, and except that no representation or warranty need be made as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law). The consummation of the transactions herein contemplated will not: (i) conflict with or constitute a breach of, or default under, or result in the creation of any material lien, charge or encumbrance upon any of the assets of the Company, the MHC or the Bank pursuant to the articles of incorporation of the Company or the charter and bylaws of the Bank and the MHC, or any material contract, lease or other instrument to which the Company, the MHC or the Bank has a beneficial interest, or any applicable law, rule, regulation or order; (ii) violate any authorization, approval, judgement, decree, order, statute, rule or regulation applicable to the Company, the MHC or the Bank, except for such violations which would not have a material adverse effect on the financial condition and results of operations of the Company, the MHC and the Bank on a consolidated basis; or (iii) result in the creation of any material lien, charge or encumbrance upon any property of the Company, the MHC or the Bank. (s) No default exists, and no event has occurred which with notice or lapse of time, or both, would constitute a default, on the part of the Company, the MHC or the Bank in the due performance and observance of any term, covenant or condition of any indenture, mortgage, deed of trust, note, bank loan or credit agreement or any other instrument or agreement to which the Company, the MHC or the Bank is a party or by which any of them or any of their property is bound or affected, except such defaults which would not have a material adverse affect on the financial condition or results of operations of the Company, the MHC and the Bank on a consolidated basis; such agreements are in full force and effect; and no other party to any such agreements has instituted or, to the best knowledge of the Company, the MHC and the Bank, threatened any action or proceeding wherein the Company, the MHC or the Bank would or might be alleged to be in default thereunder. (t) Upon consummation of the Offering, the authorized, issued and outstanding equity capital of the Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no Shares have been or will be issued and outstanding prior to the Closing Date (other than Shares held by the MHC); the Shares will have been duly and validly authorized for issuance and, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and in the Prospectus, will be duly and validly issued, fully paid and non-assessable, except for shares purchased by the ESOP with funds 12 borrowed from the Company to the extent payment therefor in cash has not been received by the Company; except to the extent that subscription rights and priorities pursuant thereto exist pursuant to the Plan, no preemptive rights exist with respect to the Shares; and the terms and provisions of the Shares will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus. To the best knowledge of the Company, the MHC and the Bank, upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants. (u) No approval of any regulatory or supervisory or other public auth<|eot_id|>
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6.965419
Products shall be reshipped by Distributor exactly as delivered by Company, and may not be modified in any manner by Distributor. EXCLUSIVE DISTRIBUTOR AGREEMENT Page 6 of 18 Source: SMART RX SYSTEMS INC, 1-A, 9/14/2018 5.2 Ownership of Technology. Except for the limited license granted in subsection 5.1 above, Distributor acknowledges and agrees that Company or its licensors own and will continue to own all right, title, and interest in and to the Products, including all copyright rights (including rights in audiovisual works), moral rights, patent rights (including patent applications and disclosures), rights of priority and trade secret rights recognized in any country or jurisdiction of the world, regardless of whether the Products are separate or combined with any other products, programs, or data. Company may, at its option, provide Distributor with copies of the Products for demonstration purposes, ill such cases, the demonstration products shall remain the property of Company and may not be duplicated, resold, lent, leased, given away or otherwise distributed. Distributor agrees to return aforesaid software at its expense upon written request from Company or at the termination of this agreement. 5.3 Notices. Distributor agrees not to alter, erase, deface or overprint any trademark, copyright and other notices of proprietary rights included by Company on or in Products. 5.4 Ownership of Marks. The Company Marks are the exclusive property of Company. Distributor has paid no consideration for the use of Company's trademarks, logos, copyrights, trade names or designations, and nothing contained in this Agreement shall give Distributor any interest in any of them. Distributor may use the Company Marks in marketing the Products but such use does not confer any right, title or interest in the Company Marks or in any of the Products. Distributor acknowledges that Company owns and retains all copyrights and other proprietary rights in all the Products, and agrees that it will not at any time during or after the term of this Agreement assert or claim any interest in or do anything that may adversely affect the validity or enforceability of any trademark, trade name, copyright or logo belonging to or licensed to Company (including without limitation any act, or assistance to any act, which may infringe or lead to the infringement of any copyright in the Products). Distributor agrees not to attach any additional trademarks, logos or trade designations to any Product. Distributor further agrees not to affix any Company trademark, logo, or trade name to any non-Company product. Distributor shall not register any Company Marks with any government authority or agency. All rights to use such Company Marks shall cease upon expiration or termination of this Agreement. 5.5 Infringement Enforcement. Distributor agrees to use its best efforts to cooperate in Company's efforts to protect its proprietary rights. Distributor agrees to immediately notify Company of any known or suspected breach of Company's proprietary rights that comes to Distributor's attention. 5.6 Ownership of Intellectual Property, Company shall retain ownership of its respective Background IP that each owned prior to this partnership and nay other IP developed during this marketing relationship. 6. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION: 6.1 Generally. It may be necessary during the performance of this Agreement for Company to disclose to Distributor Confidential Information. Distributor agrees to use the same degree of care to protect the confidentiality of the Confidential Information and to prevent its unauthorized use or dissemination as it uses to protect its own confidential information of a similar nature. Distributor agrees to use the Confidential Information only for purposes directly related to the performance of this Agreement. All Confidential Information remains the property of Company or the relevant third party, and no license or other rights to Confidential Information is granted or implied hereby. Company acknowledges Distributors value for identifying and contracting Customers and will not circumvent Distributor in any manner relative to its relationships with existing customers or leads. EXCLUSIVE DISTRIBUTOR AGREEMENT Page 7 of 18 Source: SMART RX SYSTEMS INC, 1-A, 9/14/2018 6.2 Internal Procedures. Distributor shall secure and protect and shall make and keep only the minimum number of copies of any Confidential Information provided hereunder as may be required for technical or archival reasons, and will ensure that each copy is marked with a clearly legible confidentiality notice. Distributor shall restrict access to the Confidential Information to its bona-fide full-time employees, or consultants who have signed a non-disclosure agreement no less restrictive than terms of this Section, and who have a bona-fide need for such access. 6.3 No Derivative Developments. Distributor may not develop, market, license, sell or otherwise distribute any products derived in part or whole from the Confidential Information or Products or based on techniques revealed by Distributor's inspection of the Confidential Information or Products, except as expressly authorized by this Agreement. 6.4 Equitable Relief. Distributor consents to an injunction without bond or other equitable relief if sought by Company from a court of competent jurisdiction against the breach of the terms of this Section, in addition to any other legal or equitable remedies which may be available to Company. 6.5 Survival. Distributor's obligations under this Section shall survive any termination or expiration of this Agreement. 7. CONDUCT OF BUSINESS: 7.1 Reputational. Distributor will conduct all its business in its own name and in such manner as it may see fit. However, conduct which Company, in its discretion, deems detrimental to Company's image or reputation, shall be grounds for termination of this Agreement, upon reasonable notice and the failure to cure such behavior by Distributor. 7.2 Public Access. Distributor shall maintain publicly accessible facilities, including offices, a Website and toll-free telephone number within the Territory, and shall use its best efforts and devote such time as may be reasonably necessary to promote the sale of the Products within the Territory. 7.3 No Partnership or Agency. Nothing in this Agreement shall be construed to constitute the Distributor as the partner, employee or agent of Company, nor shall either party have any authority to bind the other in any respect, it being intended that each shall remain an independent <|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>bject to the Stark Law (or similar State Stark Law), that such medical facility may not be able to fulfill any Federal Healthcare Program ("FHP") (Medicare, Medicaid, Tricare) prescription, but rather the Pharmacy Kiosk will bill such FHP prescriptions through a separate billing system. The Parties cannot share such FHP revenues with the Healthcare Facility Investors who are subject to the applicable Stark Laws, but Company and A3 Development Group, LLC shall share in the EBITDA on a 60/40 basis respectfully. 4.2 Method of Payment. Payments shall be made according to such methods as may be designated or agreed to by the Parties from time to time. 4.3 Expenses. Each party shall be responsible for their respective expenses incurred under this Agreement and shall be responsible for all taxes based on its own net income. 4.4 U.S. Currency. All payments under this Agreement shall be made in lawful United States currency. Due to the fact that no retail model has been developed to date, the retail agreement will be a separate agreement. 4.5 Auditable Records. Each Party shall keep true, accurate and consistent records containing regular entries relating to the disposition of the Products, distributed reproduced or maintained in inventory by each respective Party. These records shall be available for examination during normal business hours by accountants representing the other Party, who shall be entitled to perform an audit and to make copies and extracts, and receive any explanations that may reasonably be requested. Each Party is responsible for payment of the accountant's fee, except that the other Party shall be responsible for such fees in the event the examination disclose a discrepancy in a Party's favor of more than five percent (5%) of the payments due under this Agreement. 4.6 Quarterly Reports, Distributor agrees to provide Company, within thirty (30) days after the end of each calendar quarter, with a report depicting sales and sales leads, including volume projections. Distributor shall commence providing Company such reports within thirty (30) days following the end of the calendar quarter in which this Agreement is executed. 5. INTELLECTUAL PROPERTY RIGHTS: 5.1 License. For the term of this Agreement, Company grants Distributor a limited, revocable, non-transferable, non-exclusive license under Company's copyrights to use the Company Products at Distributor's facilities in the Territory solely for marketing and support purposes directly related to the performance of its duties under this Agreement. Except as may be reasonably necessary for marketing and technical support purposes, Distributor shall not duplicate or otherwise copy any Products without express written permission from Company. All<|eot_id|>
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4.857191
e default (with any termination as a result of Licensee's failure to pay amounts due under this Agreement resulting in acceleration of Licensee's obligation to pay all sums accrued and payable to Licensor under this Agreement as of the date of such termination). 5. AMENDMENT OF NATURE OF DISTRIBUTORSHIP. Licensor and Licensee do hereby agree that this Amendment shall effect a change in the nature of the distributorship granted to Licensee pursuant to the Distributor Agreement from a non-exclusive to an exclusive distributorship (provided, however, that with respect to Licensor's Partitioned Database Facility product, Licensor also may license such product to International Business Machines Corporation for sublicensing and distribution). Any and all references in the Distributor Agreement to the rights granted to Licensee as non-exclusive rights are hereby amended to provide that such rights are 3 exclusive rights (including without limitation such references in Sections 2.1 (Use of Master Copy), 2.2 (Sublicensing) and 2.8 (Trademarks and Copyright).). 6. AMENDMENT OF SECTION 13.1. The Distributor Agreement is hereby amended by adding the following sentence to the end of Section 13.1: Notwithstanding the foregoing, the foregoing limitation on liability shall not be applicable in respect of any liability of Licensor to Licensee resulting from any misrepresentation in, or breach of, the terms of Section 6.2 hereof or in respect of Licensor's obligation to repay Royalty Advances pursuant to Section 3.2 hereof. 7. CHANGE OF ADDRESSES FOR NOTICE. Section 15.2 of the Distributor Agreement is hereby amended by changing the address for notice to each of Licensor and Licensee to the following: 14100 Southwest Freeway, Suite 500 Sugar Land, Texas 77478 Attn: President 8. ADDITION OF RIGHT OF FIRST REFUSAL. The Distributor Agreement is hereby amended by adding thereto a new Section 15.11 and a new Section 15.12, which shall read in their entirety as follows: Section 15.11 Right of First Refusal. If, at any time or from time to time during the term hereof, Licensor or any stockholder in Licensor shall have received a bona fide offer from any person or entity to sell, transfer or otherwise convey all or any stock in, or assets of, Licensor which Licensor or such stockholder, as the case may be (the "Offeree"), desires to accept, the Offeree shall first give written notice (the "Offering Notice") to Licensee of the financial and other terms and conditions (the "Terms and Conditions") of such offer. Licensee shall have the right and a first opportunity to purchase, lease or otherwise acquire, as the case may be, all or the applicable portion of such stock or assets (as specified in the applicable Offering Notice) on the Terms and Conditions set forth in the Offering Notice, such right to be exercised by notice in writing to the Offeree within ninety (90) days after the giving of the Offering Notice. If Licensee shall have exercised such right, the closing shall be held at the corporate offices of Licensee on the closing date specified in the Offering Notice or the date that is ninety (90) days after the date of Licensee's notice of its exercise of such right, whichever is later. If either party shall default under this Section, the other party shall be entitled to specific performance. If Licensee shall fail to give notice of the exercise of its right of first 4 refusal under this Section within such ninety (90) day period, or if Licensee shall notify the Offeree within such ninety (90) day period that Licensee has waived such right, then the Offeree shall have the right to sell, transfer or convey all or the applicable portion of the stock in, or assets of, Licensor (as specified in the Offering Notice) pursuant to the terms of the specific offer described in the applicable Offering Notice, but not otherwise. If such sale, transfer or conveyance is not consummated in accordance with the offer and the Terms and Conditions specified in the applicable Offering Notice, the rights of Licensee to an Offering Notice shall be reinstated. No exercise or waiver by Licensee of any of its rights hereunder shall modify, abridge, impair or affect any of Licensee's rights under any of the other terms or provisions of this Agreement. Any sale, transfer or other conveyance of all or any part of the stock in, or assets of, Licensor in violation of this Section shall be null and void. Skunkware, Inc., a Delaware corporation and the sole stockholder of Licensor ("Skunkware"), is joining in this Agreement for the purpose of agreeing to the terms of this Section and Section 15.12. Section 15.12 OPTION TO PURCHASE. Skunkware and Licensor hereby grant to Licensee the exclusive and irrevocable right and option to purchase (the "Option"), at Licensee's election, either (i) all of the assets of Licensor or (ii) all of the issued and outstanding stock of Licensor. Such option shall be exercisable during a period (the "Option Period") commencing on and including the earlier of (i) the date upon which Licensee shall have paid to Licensor, in any single fiscal year of Licensee, royalty payments hereunder in the aggregate amount of $10,000,000 or (ii) January 1, 2002, and ending upon the expiration or sooner termination of this Agreement. Licensee's exercise of the Option is at its sole discretion. Licensee may exercise the Option by written notice to Licensor and Skunkware at any time during the Option Period. Upon any such exercise of the Option, Licensee and Licensor or Skunkware (as the case may be) shall proceed to diligently and in good faith negotiate and execute a definitive purchase and sale agreement for Licensor's acquisition of all of the assets of, or outstanding capital stock in, Licensor, as the case may be. In the event that Licensee and Licensor or Skunkware, as the case may be, are unable to agree on any terms or conditions for such acquisition, the same shall be submitted to arbitration in accordance with the rules and procedures of the American Arbitration Association, with the arbitrator(s) to be experienced in the mainframe software industry. Notwithstanding the foregoing provision for arbitration concerning the terms of any purchase and sale agreement, and without limiting any other 5 conditions that may be included in any such purcha<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>ii) $3,000,000 in respect of Licensee's fiscal year beginning April 1, 2001, (iv) $4,000,000 in respect of Licensee's fiscal year beginning April 1, 2002 and (v) $5,000,000 in respect of Licensee's fiscal year beginning April 1, 2003. In the event that the term hereof extends beyond Licensee's fiscal year beginning April 1, 2003, the amount of the Annual Royalty Advance shall increase by $1,000,000 for each such fiscal year thereafter. 1.12 "Royalty Advance" shall have the meaning provided therefor in Section 3.2 hereof. 1.13 "Specified Royalty Percentage" shall mean fifty percent (50%) for the period from and including January 1, 1999 through and including March 31, 1994. Thereafter, the term "Specified Royalty Percentage" shall mean (i) fifty percent (50%) from and after the first day of each quarter of each fiscal year of Licensee commencing with Licensee's fiscal year beginning April 1, 1999) until such time, if any, during such quarter that the aggregate amount of all Royalty Advances outstanding as of the first day of such quarter (including the Royalty Advance payable on such first day) has been credited against royalties earned hereunder (a "Satisfaction Date"), and (ii) forty percent (40%) from and after a Satisfaction Date through and including the last day of the fiscal quarter in which such Satisfaction Date occurs. 2. AMENDMENT OF SECTIONS 3.1 AND 3.2. Sections 3.1 and 3.2 of the Distributor Agreement are hereby amended to read in their entirety as follows: Section 3.1 ROYALTIES TO LICENSOR. (a) Licensee shall pay to Licensor for each Licensed Product licensed to a Redistributor or a Customer a royalty equal to the Specified Royalty Percentage of all revenues received (without deduction for value added tax, if any, but excluding any revenues for maintenance and support or upgrade services, which revenues are covered in paragraph (b) below) by Licensee under the Redistributor Agreement or Sublicense applicable to such Licensed Product. (b) Licensee shall pay to Licensor for maintenance and support and upgrade services provided under the applicable Sublicense or other written maintenance and support agreement with or approved by Licensee for each of the Licensed Products a royalty equal to the Specified Royalty Percentage of all revenues received (without deduction for value added tax, if any) by Licensee from a Redistributor or Customer relating to maintenance and support services or services for Upgrades or upgrades of systems for such Licensed Products. Section 3.2 TERMS OF PAYMENT. The royalties payable to Licensor pursuant to Section 3.1 shall be payable in accordance with the provisions of this Section 3.2. On or before the first day of each fiscal quarter of each fiscal year during the term hereof, commencing with the Licensee's fiscal year which begins on April 1, 1999, Licensee shall pay to Licensor, as an advance (a "Royalty Advance") of royalties anticipated to be paid hereunder during such fiscal year, an amount equal to twenty-five percent (25%) of the Annual Royalty Advance Requirement for such fiscal year. The aggregate amount of Royalty Advances outstanding from time to time shall be credited against royalties payable hereunder pursuant to Section 3.1 as and when such royalties are recognized as earned in accordance with generally accepted accounting principles. Royalty Advances made hereunder shall be made in respect of royalties that may become payable in respect of any and all Licensed Products and shall not be deemed made in respect 2 of any particular Licensed Product. With respect to any royalty payments due hereunder from Licensee to Licensor in excess of the amount of Royalty Advances made by Licensee from time to time hereunder, such payments shall be payable on the later of (i) sixty (60) days after the date of the applicable invoice to a Redistributor or Customer, as the case may be, or (ii) five (5) business days following Licensee's receipt of payment from a Redistributor or Customer, as the case may be. Any royalty payment that is not paid when due will bear interest from the date such amount is due until the date payment is made at a rate equal to ten percent (10%) per annum. All royalty payments due to Licensor under this Agreement shall be paid in U.S. Dollars. Upon the expiration or any termination of this Agreement, Licensor shall repay to Licensee the aggregate amount of all Royalty Advances then outstanding. 3. AMENDMENT OF TERM. Section 14.1 of the Distributor Agreement is hereby amended to read in its entirety as follows: Section 14.1 TERM. This Agreement shall be effective through and including March 31, 2004. Upon the expiration of such term, this Agreement will renew automatically for successive terms of one (1) year each unless either party to this Agreement delivers written notice of termination to the other party to this Agreement at least sixty (60) days prior to the end of the original or any renewal term. 4. AMENDMENT OF TERMINATION PROVISIONS. The provisions of Section 14.2 are amended by deleting in its entirety subsection (b) thereof and by amending Section 14.2(a)(2) to read in its entirety as follows: (2) Immediately upon written notice if the other party defaults in the performance of any obligation under this Agreement, including failure to promptly pay any amount due hereunder, and fails to cure such default within thirty (30) days after delivery of written notice specifying th<|eot_id|>
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5.46149
rwise be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code, licenses of rights to "intellectual property" as defined under Article 101 (52) of the U.S. Bankruptcy Code. The Parties agree that each Party will retain and may fully exercise all of its rights and elections under the U.S. Bankruptcy Code or such similar laws in a jurisdiction outside the United States. Page 57 of 85 13.3 Effects Termination. 13.3.1 General. As of the effective date of any early termination of this Agreement, (a) neither Party shall be relieved of any obligation that accrued<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|> this Agreement, (c) [***], and (d) any Claims by BLI's employees, Permitted Subcontractors or agents for worker's compensation or other liability coverage, insurance, benefits, and other employee-related claims, in each case of clauses (a)-(d) of this Section 12.1 (Indemnification by BLI), except to the extent Ginkgo has an obligation to indemnify an BLI Indemnitee in connection with such Claims and Losses pursuant to Section 12.2 (Indemnification by Ginkgo). 12.2 Indemnification by Ginkgo. Ginkgo will indemnify, defend and hold BLI and its Affiliates, and its and their officers, directors, employees, Permitted Subcontractors and agents (each, an "BLI Indemnitee") harmless from and against any and all Claims and Losses, to the extent caused by or arising as a result of (a) the breach by Ginkgo of this Agreement or material inaccuracy in any representation or warranty made by Ginkgo under this Agreement, (b) the negligence, gross negligence, fraud or willful misconduct by a Ginkgo Indemnitee in connection with this Agreement, (c) [***] and (d) any Claims by Ginkgo's employees, Permitted Subcontractors or agents for worker's compensation or other liability coverage, insurance, benefits, and other employee-related claims, and (e) the development, manufacture, use, handling, storage, importation, distribution, sale or other commercialization of Ginkgo Inventions by Ginkgo Page 55 of 85 or its Affiliates, agents, licensees, sublicensees or customers, in each case of clauses (a)-(e) of this Section 12.2 (Indemnification by Ginkgo) except to the extent BLI has an obligation to indemnify a Ginkgo Indemnitee in connection with such Claims and Losses pursuant to Section 12.1 (Indemnification by BLI). 12.3 Procedure. Any Party seeking indemnification under this Article 12 (Indemnification; Insurance) will promptly notify the indemnifying Party in writing after the Party seeking indemnification has received notice of any Claim. The Party seeking indemnification will reasonably cooperate with the indemnifying Party in the defense of any such Claim at the cost of the indemnifying Party. An indemnifying Party will not be obligated to defend, indemnify and hold harmless the Party seeking indemnification if, and only to the extent, the Party seeking indemnification delays providing notice of a Claim to the indemnifying Party and the delay in notice substantively prejudices the ability of the indemnifying Party to successfully defend the Claim. The indemnifying Party may not make any admission on behalf of the Party seeking indemnification [***]. Notwithstanding the foregoing, the Party seeking indemnification may at any time choose to be represented by its own counsel at its expense (or at the indemnifying Party's expense if the indemnifying Party's defense is inadequate as determined by a reasonableness standard). 12.4 Insurance. Each Party will obtain and carry in full force and effect the minimum insurance requirements set forth below. Such insurance (i) will be primary insurance with respect to each Party's own participation under this Agreement and (ii) will be issued by a recognized insurer rated by A.M. Best "A-VII" (or its equivalent) or better, or an insurer pre-approved in writing by the other Party. 12.4.1 Types and Minimum Limits. The types of insurance, and minimum limits will be: (i) any insurance policy that is required by any Applicable Law, including [***] and [***] policies where applicable; and (ii) [***] insurance with a minimum limit of [***] Dollars ($[***]) per occurrence and [***] Dollars ($[***]) in the aggregate. For clarity, [***]. 12.4.2 Certificates of Insurance. Upon request by a Party, the other Party will provide Certificates of Insurance evidencing compliance with this Section 12.4 (Insurance). The insurance policies will be under an occurrence form, but if only a claims-made form is available to a Party, then such Party will continue to maintain such insurance after Expiration or the termination of this Agreement for a period of [***] ([***]) years following the end of the Term. 13. TERM AND TERMINATION 13.1 Term. 13.1.1 General. This Agreement shall commence on the Effective Date and, unless sooner terminated in accordance with its terms, including by Ginkgo pursuant to Section 7.3 (Buy-Down Election) or extended by the mutual written agreement of the Parties, shall continue until the Intended End of Term (such time period, as may be extended pursuant to this Section 13.3.1 (Term - General), the "Term"); provided that, if, Page 56 of 85 at the expiration of the Intended End of Term, Ginkgo has paid the Minimum Cumulative Purchase Commitment, but will not have paid to BLI the Full Purchase Target, then the Term of this Agreement shall automatically extend for an additional [***] ([***]) year period from the date of the expiration of the then-Intended End of Term so that, among other things, BLI may potentially receive the benefit of the Full Purchase Target and Ginkgo may receive the continuing benefit of royalty-free licenses. 13.1.2 Effects of Expiration. Upon Expiration of this Agreement: (i) the licenses granted to BLI from Ginkgo pursuant to Section 9.2 (Grants to BLI) and the licenses granted to Ginkgo from BLI in Section 9.1.1 (Scope of Grants) and 9.1.2 (License Grant to Exploit [***]) shall survive and become perpetual, irrevocable, and royalty-free, (ii) no royalties shall be payable by Ginkgo on the sale or transfer of a Licensed Product, (iii) the pricing terms for Beacon Optofluidic Machines, Consumables, and services (including Services) set forth in Section 5.2.2 (Pricing - Adjustments) shall [***], (iv) the restrictions on BLI set forth in Section 6.2.1 (Restrictions on BLI) shall survive to the extent set forth therein and (v) [***]. 13.2 Termination With Cause. 13.2.1 Material Breach. If either Party commits a material breach of any of its obligations under this Agreement, then the other Party may give the breaching Party written notice of such material breach. If the breaching Party fails to cure such breach within sixty (60) days after such notice, then the non-breaching Party may terminate this Agreement upon written notice to the breaching Party in its entirety. Notwithstanding the foregoing, if the breaching Party has a bona fide dispute as to whether such breach has occurred or has been cured, it will so notify the non- breaching Party in writing and the cure period will be tolled until such dispute is resolved pursuant to Section 14.5.2 (Dispute Resolution). Upon a final determination of breach or failure to cure, the breaching Party will have the remainder of the cure period to cure such breach. [***]. 13.2.2 Bankruptcy. Each Party will have the right to terminate this Agreement immediately in its entirety by giving written notice of termination to the other Party, if the other Party files a voluntary petition, or if an involuntary petition is granted in respect of the other Party and appeal proceedings are not commenced within [***] ([***]) Business Days from the date of such petition under the bankruptcy provisions of Applicable Law, or the other Party is declared insolvent, undergoes voluntary or involuntary dissolution, or makes an assignment for the benefit of its creditors, or suffers the appointment of a receiver or trustee over all, or substantially all, of its assets or properties. All rights and licenses under or to Intellectual Property granted under or pursuant to this Agreement by one Party to the other are, and will othe<|eot_id|>
8.19332
8.19332
ibutable to you). For the purpose of this Section 14.4, the term "losses and expenses" shall be deemed to include compensatory, exemplary, or punitive damages; fines and penalties; attorneys' fees; experts' fees; court costs; costs associated with investigating and defending against claims; settlement amounts; judgments; compensation for damages to our reputation and goodwill; and all other costs associated with any of the foregoing losses and expenses. You shall give us prompt notice of any event of which you are aware for which indemnification is required and, at your expense and risk, we may elect to assume (but under no circumstance are obligated to undertake) the defense and/or settlement thereof, provided that we will seek your advice and counsel. Any assumption of ours shall not modify your indemnification obligation. We may, in our sole judgment, take such actions as we deem necessary and appropriate to investigate, defend, or settle any event or take other remedial or corrective actions with respect thereto as may be, in our sole judgment, necessary for the protection of the Indemnitees or the System. You shall defend us and each of our affiliates, officers, directors, shareholders, agents, and employees named in any lawsuit based on such loss or expenses and shall pay all costs and reasonable attorneys' fees associated with such defense. If we wish to retain our own counsel to defend any such action, you shall reimburse us for all reasonable costs and legal fees incurred by us for such defense. Said reimbursement shall be made to us in a timely manner upon demand as such fees are incurred by us and billed to you. 31 Source: SOUPMAN, INC., 8-K, 8/14/2015 15. APPROVALS, WAIVERS AND NOTICES 15.1 Obtaining Approvals Whenever this Agreement requires our prior approval or consent, you shall make a timely written request to us therefor, and such approval or consent must be obtained in writing. We make no warranties or guarantees upon which you may rely, and assume no liability or obligation to you by providing any waiver, approval, consent, or suggestion to you in connection with this Agreement, or by reason of any neglect, delay, or denial of any request therefor. 15.2 No Waiver No delay, waiver, omission, or forbearance on our part to exercise any right, option, duty, or power arising out of any breach or default by you, or by any other franchisee, of any of the terms, provisions, or covenants thereof, and no custom or practice by the parties at variance with the terms of this Agreement, shall constitute our waiver to enforce any such right, option, or power as against you, or as to a subsequent breach or default by you. Subsequent acceptance by us of any payments due to us under this Agreement shall not be deemed to be our waiver of any preceding or succeeding breach by you of any terms, covenants, or conditions of this Agreement. 15.3 Notices All notices or demands shall be in writing and shall be served in person, by Express Mail, by certified mail; by private overnight delivery; or by facsimile. Service shall be deemed conclusively made (a) at the time of service, if personally served; (b) twenty-four (24) hours (exclusive of weekends and national holidays) after deposit in the United States mail, properly addressed and postage prepaid, if served by Express Mail; (c) upon the earlier of actual receipt or three (3) calendar days after deposit in the United States mail, properly addressed and postage prepaid, return receipt requested, if served by certified mail; (d) twenty-four (24) hours after delivery by the party giving the notice, statement or demand if by private overnight delivery; and (e) at the time of transmission by facsimile, if such transmission occurs prior to 5:00 p.m. on a business day and a copy of such notice is mailed within twenty-four (24) hours after the transmission. Notices and demands shall be given to the respective parties at the following addresses, unless and until a different address has been designated by written notice to the other party: To Franchisor: Kiosk Concepts, Inc. 1110 South Avenue Staten Island, New York 10314 Attention: President Fax: With a copy to: Haro<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>rtain to and apply to any Unit Franchise Agreement will continue in full force and effect, but only with regard to those Unit Franchise Agreements which have been entered into and were in effect prior to the date of termination or expiration of this Agreement. 13.5 Unit Franchise Refund Policy You shall comply with our requirements related to a Unit Franchisee's right to terminate its Unit Franchise Agreement according to the terms of such Unit Franchise Agreement, if any, as well as our policy regarding refunds of initial franchise fees to Unit Franchisees, if any. 14. INDEPENDENT CONTRACTOR AND INDEMNIFICATION 14.1 No Fiduciary Relationship This Agreement does not create a fiduciary relationship between the parties hereto. You shall be an independent contractor; and nothing in this Agreement is intended to constitute or appoint either party an agent, legal representative, subsidiary, joint venturer, partner, employee, or servant of the other for any purpose whatsoever. 30 Source: SOUPMAN, INC., 8-K, 8/14/2015 14.2 Public Notice of Independent Status You shall conspicuously identify yourself and the Franchised Business in all dealings with your customers, contractors, suppliers, public officials, and others, as an independent master franchisee of ours, and shall place such notice of independent ownership in your Franchised Business and on all forms. We shall have the right to specify the language of any such notice. 14.3 Independent Contractor You acknowledge and agree that you are not authorized to make any contract, agreement, warranty, or representation on our behalf, or to incur any debt or other obligations in our name; and that we shall in no event assume liability for, or be deemed liable under this Agreement as a result of, any such action; nor shall we be liable by reason of any act or omission of yours in your conduct of the Franchised Business or for any claim or judgment arising therefrom against you or us. 14.4 Indemnification You shall indemnify and hold harmless to the fullest extent by law us, our affiliates and our respective directors, officers, employees, shareholders, and agents, (collectively the "Indemnitees") from any and all losses and expenses (as hereinafter defined) incurred in connection with any litigation or other form of adjudicatory procedure, claim, demand, investigation, or formal or informal inquiry (regardless of whether same is reduced to judgment) or any settlement thereof which arises directly or indirectly from, as a result of, or in connection with your operation of the Franchised Business including, but not limited to, claims arising as a result of the maintenance and operation of vehicles (collectively an "event"), and regardless of whether same resulted from any strict or vicarious liability imposed by law on the Indemnitees; provided, however, that this indemnity shall not apply to any liability arising from the gross negligence of the Indemnitees (except to the extent that joint liability is involved, in which event the indemnification provided herein shall extend to any finding of comparative negligence or contributory negligence attr<|eot_id|>
8.161864
8.161864
company in good standing under the laws of the State of Delaware and is duly authorized to transact business in the State of California, with full power and authority to e<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>rks. Nothing herein contained shall be construed as an assignment or grant to Sponsor of any right, title or interest in or to the Team Marks, or in or to any copyright, design patent or trademark thereto, beyond the grant of the licensing rights on the terms herein specified. Sponsor hereby agrees that its every use of Team Marks shall inure to the benefit of Team Companies and that Sponsor shall not at any time acquire any rights in Team Marks by virtue of any use it may make of such marks. Likewise, nothing herein shall be construed as an assignment or grant to Forty Niners SC of any right, title or interest in or to the Sponsor Marks, or in or to any copyright, design patent or trademark thereto, beyond the grant of the licensing rights on the terms herein specified. Forty Niners SC hereby agrees that its every use of the Sponsor Marks shall inure to the benefit of Sponsor, and Forty Niners SC shall not at any time acquire any rights in Sponsor Marks by virtue of any use Team Companies may make of such marks. Sponsor shall have no sub-license or pass-through rights. Sponsor agrees that it will not create any trademark, logo or other intellectual property that is derived from or confusingly similar with the Team Marks or that in any way indicates or implies a connection, affiliation, endorsement, sponsorship or other relationship between Sponsor, or any product or service of Sponsor, and the Team Companies, without the prior written approval of Forty Niners SC. (b) Notification of Infringement. Sponsor shall notify Forty Niners SC of any infringement of the trademark rights or copyright in the Team Marks, and to assist in any action, legal or otherwise, necessary to protect such trademark rights or copyright, provided that all costs and expenses related to such an action shall be the sole responsibility of Forty Niners SC. (c) Use According to Specifications. Sponsor agrees to use the Team Marks only in accordance with the Team Companies' specifications and guidelines as may be provided from time to time. Sponsor's materials shall be of high standard and superior quality and shall in no manner reflect adversely on Team Companies or the Stadium. The Team Companies agree to use the Sponsor Marks only in accordance with Sponsor's specifications and guidelines as may be provided from time to time. (d) Approval of Use of Marks. Sponsor shall submit to the Team Companies all advertising or promotional materials related to this Agreement and involving Team Marks a minimum of ten (10) days prior to the production of such materials. Sponsor need not receive specific approval to release such advertising or promotional materials to the public. However, the Team Companies shall have the right, at any time during the ten (10) day period, to object to any advertising or promotional materials. Sponsor will not use the advertising or promotional material if the Team Companies objects to advertising or promotional materials. The Team Companies shall submit to Sponsor all materials related to this Agreement and involving Sponsor Marks a minimum of ten (10) days prior to the production of such materials. The Team Companies need not receive specific approval to release such advertising or promotional materials to the public. However, Sponsor shall have the right, at any time during the ten (10) 7 Confidential Treatment Requested. Confidential portions of this document have been redacted and have been separately filed with the Commission. day period, to object to any advertising or promotional materials. The Team Companies will not use the advertising or promotional material if Sponsor objects to advertising or promotional materials. (e) Players and Coaches. With the exception of certain group player licensing rights made available to the Sponsor by the Team Companies pursuant to the Team's rights under the NFL Collective Bargaining Agreement, Sponsor acknowledges that this Agreement does not grant it any rights with respect to the name, likeness, signature or other attributes of any player, coach, or other employee of the Team. Sponsor shall be responsible for securing whatever rights may be required for the use of such names, likenesses, signatures or other attributes and may only do so with the prior written consent of the Team Companies. Sponsor represents that it will not exercise the rights granted in this Agreement in any manner that will imply Sponsor has obtained any such rights without separate written authorization from the, appropriate player, coach or employee. (f) No Contests Without Approval. Unless otherwise indicated in this Agreement, Sponsor has no right to run contests, sweepstakes, or promotions in connection with Team Marks or the Agreement or for the award of invitations, tickets or other benefits acquired by Sponsor under the Agreement. In the event the Team Companies grant Sponsor the right to run a contest, sweepstakes or promotion, then Sponsor shall comply with all applicable federal, state and local laws, rules, regulations or orders applicable to any such activities and hereby indemnifies the Team Companies and SCSA from any failure to so comply. 9. Confidentiality. The Parties shall each keep confidential all provisions of this Agreement and (unless required by law or judicial process after making reasonable efforts to resist disclosure, including without limitation he requirements of any securities exchange), shall not disclose any of same to any third party (other than the NFL, the Parties' respective lenders or potential lenders, and the agents, counsel,­ and other representatives of NFL, the Parties, and such lenders) without first obtaining the prior written consent of the other Party. The provisions of this Section 9 shall survive the termination or expiration of this Agreement for any reason Warranties and Representations. (a) By Forty Niners SC. Forty Niners SC represents and warrants to Sponsor the following: (i) Forty Niners SC is a limited liability <|eot_id|>
5.38234
5.38234
funding via wire transfer for Orders placed through the end of Period One. AEIS shall fulfill such Orders upon receipt and clearance of funds. b. Effective Period Two, Schoolpop shall provide the full payment of Card funding via ACH Debit at the time Schoolpop requests activation of Cards. AEIS shall activate the Cards by loading the appropriate number of Points onto the Cards as determined by the denomination, and at which time the Cards shall be ready for use by Cardholders within two (2) business days. 5 c. Schoolpop shall pay AEIS $25.00 each time a wire transfer is used for amounts under $5,000. d. The Schoolpop account number as detailed on Exhibit 3, attached hereto, must be on each form of payment along with the amount of funding to be applied to each account number. Failure to provide AEIS with this account number and funding detail may result in a delay in Funding. e. Schoolpop shall pay AEIS $15.00 for each returned ACH Debit payment. f. All instruments bearing funds for Cards should be made payable to American Express Incentive Services, L.L.C. AEIS' required payment method is in U.S. currency. AEIS reserves the right to decline payment made in any other currency. g. The following instructions should be used for Electronic Settlements to AEIS: American Express Incentive Services c/o Bank of America Dallas, TX Routing/ABA #111000012 Account #375-100-6936 Reference: XXXX (Client Name and Account #) All invoices for Schoolpop should be sent to the following address: Schoolpop, Inc. Attn: Paul Robinson Address: 3885 Crestwood Parkway, Suite 550 City, State, Zip: Duluth, GA 30096 Phone #: 770-638-5101 Fax #: 770-678-3334 Email address: probinson@Schoolpop.com Schoolpop agrees to notify AEIS promptly in the event the address or contact for invoice submission changes. 6. ORDERING INSTRUCTIONS a. Effective Period One, Schoolpop's designated contact shall place Orders by submitting data in an electronic document via email to AEIS. b. Schoolpop will be assigned a user name and password that will be used for identification when placing Orders using easyorder(TM). Schoolpop authorizes AEIS to accept and process Orders from anyone using Schoolpop's password. AEIS will have no obligation or responsibility for verifying the identity of anyone using Schoolpop's password. Schoolpop shall have the responsibility of safeguarding Schoolpop's password and should not reveal its password to anyone. AEIS will not ask Schoolpop in an unsolicited telephone call or email for its password. In addition, Schoolpop should take precautions when using a computer that is not its own or in a public setting. If Schoolpop suspects that someone else may have had access to its password, Schoolpop shall notify AEIS immediately. c. Effective with Period Two, the following ordering terms and conditions apply: i. Schoolpop shall order Cards in increments of 100 per box and shall not place Orders for any partial box (es) of 100, nor request any partial activation of any box (es). ii. Cards within each box shall be of the same product and Point value. AEIS shall not mix products and/or Point values within any single box. iii. Upon receipt of Cards, Schoolpop shall confirm receipt of such Cards as detailed in the Trust Agreement. iv. AEIS shall use commercially reasonable efforts to activate each full box of Cards within two (2) &sbsp; business days upon receipt of the UPS(TM) Tracking number (used by AEIS's designated shipping vendor) for the box of Cards from Schoolpop along with the receipt and clearance of Card funding for the box of Cards. v. Once activated, all Cards become the property of Schoolpop, excluding all Marks as detailed in Section 8, and further defined within the Trust Agreement. vi. Activation terms for New Cards shall follow the process established for existing Cards. 6 7. PROGRAM COMMUNICATIONS a. All rights to the name, logo, service marks and/or trademarks (the "Marks"), trade names, tag lines, or any other proprietary designation ("Proprietary Designation") of AEIS remains the sole property of AEIS. Certain use of the Marks and Proprietary Designation of American Express Travel Related Services Company and Maritz Inc. has been granted to AEIS under license agreements. It is understood that the Marks may be necessary to enhance the impact and clarity of Program communications. All use of Marks and Proprietary Designations of AEIS, American Express and Maritz Inc. requires prior written approval from AEIS and use of the Marks shall follow and be subject to requirements issued by AEIS and attached hereto as Exhibit 4 and 4.A and 4.B, including any such Marks used by Schoolpop's Clients. b. Camera-ready artwork is available from AEIS for inclusion of the AEIS logo or to display a picture of a Card in Program communications. Requests for camera-ready artwork should be directed to the address below. c. Schoolpop shall inform AEIS in writing, and obtain prior written consent (which consent shall not be unreasonably withheld), for any and all television, radio, newspaper, magazine, Internet, Intranet, or other advertising, promotional or marketing campaign or strategy using the Marks or when referring directly to American Express Travel Related Services Company, Maritz Inc. or AEIS or any American Express merchant. d. Schoolpop is solely responsible for ensuring that any names and/or logos, designs, pictures or other intellectual property, which are provided by Schoolpop to be used in the Program (including collateral material), does not infringe or violate the intellectual property rights of any other party and shall indemnify AEIS from any and all claims made by any third party respecting such infringement. e. Schoolpop shall discontinue its use and shall notify its Clients to discontinue use of the Marks, including all American Express merchant marks, and all associated promotions, including but not limited to Client promotions, upon termination of this Agreement. f. Schoolpop, at its option, may request that AEIS include in the shipment of Cards, Program specific collateral materials. Program specific collateral materials are subject to review and approval by AEIS and additional char<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>RESPONSIBILITY OF AEIS. The full risk of loss for ordered Cards shall pass to Schoolpop immediately upon their delivery to Schoolpop by AEIS and AEIS shall not reimburse Schoolpop or Client for any delivered Card that is lost, stolen, misappropriated, or that otherwise disappears or is fraudulently or inappropriately used (together referred to as "Loss"). Schoolpop shall remain solely liable for any Loss caused by the negligence or willful misconduct of its employees, agents or representatives after the shipment has been received by Schoolpop. AEIS will not reimburse Schoolpop or its Client or be responsible for any Loss in connection with or after delivery of Cards to Schoolpop, its Clients or the Cardholder whether they are shipped to Schoolpop, its Client, or to either of their pre-designated delivery agents. Only Cardholders are eligible to receive replacements from AEIS and replacements are given only in accordance with the agreement between the Cardholder and AEIS. Cards are usually shipped in packaging with AEIS' designated vendor as the return address. Notwithstanding the foregoing, AEIS shall bear no risk of Loss and of non-receipt of Cards by the intended Cardholder in the event that AEIS is instructed to use another address as the return address, the address provided to AEIS for Schoolpop or the Client was incorrect, the request for the Card was unauthorized, and/or any information received by AEIS with regard to the processing of the Order was fraudulent or incorrect. l. All agreements entered into between Schoolpop and its Clients, shall contain a provision substantially similar to the preceding Section 3 (k). 4 m. During the term hereof, Schoolpop shall maintain at all times the following information with respect to Card resale and distribution to Client: i. For each box of Cards, or partial thereof, sent from AEIS's designated vendor to Schoolpop, the UPS(TM) Tracking number appearing on the shipping label of the box and the respective Card numbers for the Cards contained in the box (AEIS's shipping vendor shall include a list of Card numbers within each box.), and ii. The Client name and delivery date of each box of Cards or partial thereof, sent from Schoolpop via their designated shipping vendor, to the Client, including proof of signature and tracking number for the box, specific to Schoolpop's shipping vendor. n. Schoolpop shall comply with all applicable Federal, State and local laws concerning the use of Cards, including anti-money laundering and anti-terrorism laws, and currency control regulations. Schoolpop warrants it shall take measures to track information about its Clients which shall meet compliance requirements related to the above stated laws, track all Card shipment(s) to each such Client, and maintain appropriate records for its Clients for a period of seven (7) years after termination of the Agreement and to provide such records and other information to AEIS upon reasonable request and subject to applicable law. Schoolpop shall further inform in writing all of its Clients of their requirement to comply with all applicable laws concerning the use of Cards, including those laws stated in the previous sentence. School shall inform its Clients of the requirement to maintain records with respect to the Cards and Cardholders, and to verify the identity of Cardholders as required by law, to maintain records of the information used to verify each Cardholder's identity, to retain such records for at least seven (7) years following the date of distribution, including &sbsp; name, home address, Card number, and other identifying information, and the name, title and phone number of the individual responsible for maintaining such records, and to provide such records and other information to AEIS upon reasonable request and subject to applicable law. Schoolpop and Schoolpop's Clients shall establish and maintain an anti-money laundering program with an assigned compliance officer and compliance program. Details of such shall be provided to AEIS upon request. Schoolpop and Schoolpop's Clients shall not accept cash, coin or currency in exchange for Cards. Schoolpop shall indemnify and hold harmless AEIS its parents, subsidiaries and their respective affiliates, officers, directors, employees and agents, against any and all Loss that AEIS may incur or be subjected to as a result of or arising out of Schoolpop's failure to comply with such laws and regulations, including, without limitation, any Loss resulting from any claims brought by any entity including but not limited to governmental entities, unless due to the acts or omissions of AEIS. AEIS reserves the right, at its sole discretion, to monitor and enforce Schoolpop's compliance with all applicable laws and regulations, including but not limited to those contained in this Section 3 (n). Schoolpop shall monitor and use reasonable commercial efforts to enforce its Clients' compliance with all applicable laws and regulations including, but not limited to those contained in this Section 3 (n). All agreements entered into between Schoolpop and its Clients shall contain a provision substantially similar to this Section 3 (n). o. Schoolpop agrees that it will indemnify and hold AEIS harmless for any claims or losses resulting from its failure to comply with the requirements of Sections 4 (k), (m-n), unless due to the acts or omissions of AEIS. p. AEIS will not hold Schoolpop responsible for or seek to collect from Schoolpop any Loss caused by or resulting from any Cardholder's fraud, misuse, or negative balance transactions involving the Cards except to the extent such Loss was caused by Schoolpop's breach of a representation, warranty, or covenant of this Agreement or if Schoolpop (or Schoolpop's employees, agents or representatives) participated in or had knowledge of any deceptive, fraudulent or other illegal activity. q. Schoolpop acknowledges that Points must be used prior to the expiration date of the Cards. No refund will be made with respect to Points remaining on Cards at the time of expiration to Schoolpop, its Clients or the Cardholders, subject to applicable law. Schoolpop further acknowledges the Cardholder Agreement contains such notice to Cardholders. 5. PAYMENT INSTRUCTIONS a. Effective Period One, Schoolpop shall provide full payment of Card<|eot_id|>
6.791732
6.791732
ny meetings under this Article 3 shall be borne solely by such Party. ARTICLE IV DEVELOPMENT AND REGULATORY ACTIVITIES 4.1 Overview. (a) General. Except as otherwise expressly provided in a Joint Development Plan, Ono (itself or through its Affiliates or respective licensees or sublicensees) shall be responsible for the Development of the Products for the Ono Territory. All Development activities conducted by or on behalf of Ono hereunder shall be conducted in accordance with the Development Plan or Joint Development Plan(s), as applicable, and in compliance with applicable Law, including laws regarding environmental, safety and industrial hygiene, Good Laboratory Practice and Good Clinical Practice, current standards for pharmacovigilance practice, and all applicable requirements relating to the protection of human subjects. Except as otherwise set forth in a Joint Development Plan, Ono shall bear all of the costs and expenses which it incurs in connection with any of the activities it performs in the course of the Development of the Products for the Ono Territory. (b) Collaborative Development. The Parties recognize that since the Products will be developed both in the Ono Territory and the Array Territory, regulatory and budget efficiencies can be achieved through the Parties' coordination and worldwide use of preclinical and clinical data and in cooperatively conducting certain joint Clinical Studies. Accordingly, the Parties agree that it is their mutual interest to cooperatively conduct the Approved Clinical Studies to be agreed upon and set forth in Joint Development Plans as described in Section 4.4 below. (c) Current Development Status. Prior to the Effective Date, Novartis AG ("Novartis") and/or Array have independently initiated the following Clinical Studies of the Products: (i) a Phase III clinical trial in NRAS Melanoma ("NEMO Clinical Study"), (ii) a Phase III clinical trial in BRAF Melanoma ("COLUMBUS Clinical Study"), (iii) a Phase III clinical trial in BRAF Colorectal Cancer ("BEACON Clinical Study"), and (iv) those additional Phase 1 and Phase 2 Clinical Studies and Investigator Sponsored Clinical Studies set forth in Exhibit 4.1 (collectively, the "Existing Clini<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>ll have any authority to take any decision over activities related to the registration and/or commercialization of the Product for use in the Array Territory. 3.9 Cost of Governance. The Parties agree that the costs incurred by each Party in connection with its participation at a<|eot_id|>
9.052229
9.052229
excess of [***] and up to and equal [***] in a Calendar Year, an amount equal to [***] of such portion of Net Sales; and (c) For any portion of Net Sales in excess of [***] in a Calendar Year, [***] of such portion of Net Sales. Source: DOVA PHARMACEUTICALS INC., 10-Q, 11/8/2018 6.1.2 Adjustment of Promotion Fee. The percentages set forth in Section 6.1.1 [***] shall each be referred to as an "Applicable Percentage". (a) If the aggregate actual number of Details for the Product made by the Sales Representatives for a Calendar Quarter is less than the Quarterly Minimum Details for such Calendar Quarter, then in calculating the promotion fee due under Section 6.1.1, the Applicable Percentage for such Calendar Quarter shall be reduced to a new percentage equal to [***]. (b) If the Quarterly Average Sales Force Size is less than [***] Sales Representatives for an applicable Calendar Quarter, then in calculating the promotion fee due under Section 6.1.1, the Applicable Percentage for such Calendar Quarter shall be reduced to a new percentage equal to [***]. (c) In the event that subsections (a) above and (b) above are both applicable in an applicable Calendar Quarter, then the Applicable Percentage shall be reduced to a new percentage equal to the lower of the percentages calculated under subsections (a) and (b). 6.2 Milestone Payment. In addition to the promotion fee above and as additional consideration for the performance of such Valeant Activities, Dova shall pay to Valeant a milestone payment in the amount of Two Million Five Hundred Thousand Dollars ($2,500,000) when aggregate Net Sales in a Calendar Year first reach [***], payable within [***] after the end of the Calendar Quarter in which such Net Sales are reached. For clarity, such payment shall be made only once during the Term. 6.3 Reports; Payments. 6.3.1 Quarterly Reports and Payments. Within [***] after the end of each Calendar Quarter during the Term, Dova shall provide to Valeant a written report setting forth in reasonable detail the calculation of the Net Sales for such Calendar Quarter and the promotion fee payable in respect of such Net Sales in accordance with Section 6.1, including (i) the number of units of the Product shipped from Specialty Pharmacies to patients in the Territory during such Calendar Quarter, together with an itemized list of such units by Target Professional writing the applicable prescription, (ii) the number of units of the Product shipped from Specialty Pharmacies to patients in the Territory based on prescriptions written by the Specialty only during such Calendar Quarter, together with an itemized list of such units by Target Professional in the Specialty writing the applicable prescription (iii) the number of units per shipment of Products (and the number of such shipments) sold by Dova (or its Affiliates or Intermediaries) to the Non-Retail Institutions during such Calendar Quarter, including details respecting which shipments are based on initial orders from such Non-Retail Institutions and which Non-Retail Institutions ordered the Product, (iv) the number of units of the Product shipped from Retail Pharmacies to patients in the Territory during such Calendar Quarter, together with an itemized list of such units by Target Professional writing the applicable prescription, (v) the number of units shipped from Retail Pharmacies to patients based on prescriptions written by the Specialty in the Territory during such Calendar Quarter, together with an itemized list of such units by Target Professional in the Specialty writing the applicable prescription, (vi) the applicable Specialty Fraction for such Calendar Quarter, (vii) the WAC applicable to each dispensable unit, (ix) the Gross to Net Fraction for the applicable period, together with the details respecting the calculation thereof (including details regarding each of the categories of the deductions to gross sales for such Calendar Quarter). Within sixty (60) days after the end of each Calendar Quarter during the Term, Dova shall pay to Valeant the undisputed portion of the promotion fee payable in respect of such Net Sales in accordance with Section 6.1. If this Agreement terminates or expires during a Calendar Quarter, the promotion fee payable to Valeant under Section 6.1 will be calculated only on the Net Sales that occurred during such Calendar Quarter prior to the effective date of such termination or expiration. 6.3.2 Monthly Reports. Within fifteen (15) days of the end of each month within each Calendar Quarter, Dova shall provide to Valeant a written report setting forth Dova's good faith estimate of the Net Sales and the estimated promotion fee payable in respect of such Net Sales for each of such calendar month and the Calendar Quarter-to-date period, together with its good faith estimates of each of the items described in Section 6.3.1 above (assuming there will be no adjustments made to the promotion fee pursuant to Section 6.1.2). The Parties acknowledge and agree that the monthly reports will only set forth Dova's good faith estimates of the items contained <|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>available in inventory to promptly fill orders throughout the Territory and otherwise meet the forecasted demand for the Product in the Territory. If, despite such efforts, there is insufficient supply of Product to meet demand, then Dova shall use commercially reasonable efforts to promptly address such insufficiency. Dova shall contractually require (and shall use commercially reasonable efforts to enforce such contractual provisions) that all Product is manufactured, shipped, sold and distributed in accordance with all Product specifications and all Applicable Law and that its contract manufacturers and/or suppliers of Product operate their facilities in accordance with Applicable Law. Dova shall ensure that all Product Labeling complies with the applicable Regulatory Approval for the Product and Applicable Law. Other than as set forth in this Agreement, Dova shall be responsible for all marketing of the Product in the Territory, provided that Dova shall continue to invest in marketing that is targeted towards the Specialty. ARTICLE 6 FINANCIAL PROVISIONS 6.1 Promotion Fee. 6.1.1 Calculation of Promotion Fee. Commencing with the Calendar Quarter commencing on October 1, 2018, as consideration for the Valeant Activities performed by Valeant, Dova shall pay Valeant a promotion fee based on annual Net Sales during the Term, calculated as follows: (a) For any portion of Net Sales up to and equal [***] in a Calendar Year, an amount equal to [***] of such portion of Net Sales; (b) For any portion of Net Sales in <|eot_id|>
7.72611
7.72611
hereby assigns exclusively to TouchStar all rights of Reseller in and to such Software and any improvements and intellectual property rights related thereto royalty-free and exclusively and (ii) shall include in any Other Reseller Agreement provision by which any Other Reseller grants to TouchStar an exclusive, perpetual, irrevocable, royalty-free assignment of all deemed rights of such Other Reseller in and to such TouchStar Software, Ancillary Software and Intellectual Property Rights. Reseller shall execute, and shall cause any Other Reseller to execute, any such documents and instruments necessary to vest in TouchStar the deemed ownership rights of Reseller or Other Reseller in and to any TouchStar Software, Ancillary Software or Intellectual Property Rights, and any improvements or intellectual property rights related thereto. 7.2 PRIVATE LABELING. At the request of Reseller, TouchStar shall use reasonable commercial efforts to provide a private label version of the TouchStar Software (the "Private Label Software") using logos, trademarks, trade names or service marks owned by Reseller or to which Reseller has exclusive rights (the "Reseller Marks"). Reseller represents and warrants that Reseller has valid legal ownership and other exclusive rights to the Reseller Marks. Reseller grants to TouchStar a right and license to use the Reseller Marks in the preparation of the Private Label Software. Reseller shall have the right to promote, market, distribute and resell the Private Label Software pursuant to the terms and conditions of this Agreement. Reseller shall reimburse TouchStar for all costs and expenses incurred by TouchStar in making the Private Label Software available to Reseller. Except for the Reseller Marks, TouchStar shall retain all right, title and interest in and to the Private Label Software. Reseller shall indemnify, defend and hold harmless TouchStar, its Affiliates, and its and their respective directors, officers, employees, agents and representatives from and against any and all claims, suits, proceedings, costs and expenses arising out of or relating to the use by TouchStar of the Reseller Marks. TouchStar may include in the Private Label Software a legend to the effect that TouchStar owns the Private Label Software. 15 7.3 USE OF TOUCHSTAR INTELLECTUAL PROPERTY RIGHTS. Reseller shall use the Intellectual Property Rights only to refer to the TouchStar Software in accordance with TouchStar's policies as announced from time to time. In particular, and without limitation, Reseller shall not (a) remove Trademarks from any Marketing Materials, (b) include any Trademarks or other Intellectual Property Rights in any promotional literature prepared by Reseller without the express written consent of TouchStar; (c) dispute or deny the validity of any of the Intellectual Property Rights (including any attempt to register or record the same in any jurisdiction), (d) do any act or omit to do any act whereby TouchStar's right, title, and interest in the Intellectual Property Rights may become invalidated or otherwise adversely affected, (e) alter, remove, destroy, conceal, or tamper with any Trademarks, (f) use any Intellectual Property Rights in any way which might prejudice their distinctiveness or validity or goodwill of TouchStar therein, (g) use in relation to Support Services any patents, copyrights, trademarks, or trade names other than the Intellectual Property Rights without TouchStar's prior written consent, or (h) use in the Territory any trademarks or trade names so resembling any Trademark of TouchStar as to be likely to cause confusion or deception. Upon expiration or termination of this Agreement, Reseller shall immediately cease all use of the Intellectual Property Rights and shall not thereafter use any of them or any intellectual property rights confusingly similar to the Intellectual Property Rights. 7.4 USE OF CONFIDENTIAL INFORMATION. Reseller acknowledges that it may receive, during the term of this Agreement, certain Confidential Information belonging to TouchStar. Reseller recognizes that such Confidential Information is proprietary to TouchStar and very valuable, having involved the expenditure of substantial amounts of money and the use of skilled experts over a long period of time. Reseller shall hold TouchStar's Confidential Information in strict confidence and shall not use or disclose any Confidential Information, or permit any person to examine or copy any Confidential Information, regardless of the manner in which Reseller gained access to it, except as necessary for the performance of Reseller's obligations under this Agreement. 7.5 PROTECTION OF CONFIDENTIAL INFORMATION. Reseller shall protect TouchStar's Confidential Information with the utmost care and shall cause its employees, agents, and independent contractors having access to such Confidential Information to sign confidentiality agreements requiring them to comply with all the terms of this Article 7. 7.6 INFRINGEMENT CLAIMS. Reseller shall promptly notify TouchStar of any known or suspected breach of the Intellectual Property Rights and shall cooperate (without charge for personal time incurred) in TouchStar's efforts to protect such TouchStar Intellectual Property Rights. TouchStar shall defend any action brought against Reseller based on an allegation that any TouchStar Software infringes a United States or foreign Patent, Copyright, or Trademark, and TouchStar shall pay all costs and damages made in settlement or awarded as a result of any such action. If a final injunction shall be obtained in any such action restraining use of the TouchStar Software by any Customer, or if TouchStar believes that any TouchStar Software is 16 likely to become the subject of a claim of infringement, TouchStar shall, at its option and at its expense, (a) procure for Reseller's Customer the right to continue using the TouchStar Software, (b) replace or modify the TouchStar Software so that it becomes non-infringing, or (c) repurchase the TouchStar Software on a depreciated (five-year straight line) basis. Notwithstanding the foregoing, TouchStar shall have no obligation with respect to any action brought against Reseller based on an allegation of Patent, Copyright, or Trademark infringement unless TouchStar is promptly notified by Reseller in writing of such action and is allowed complete control of the defense of such action and all negotiations for its settlement or compromise. This Section 7.6 states TouchStar's entire liability with respect to infringement of Patents, Copyrights, or Trademarks. 7.7 EQUITABLE REMEDIES. Reseller acknowledges that TouchStar will be irreparably harmed by any breach of the provisions of this Section 7. Therefore, in addition to any other remedies that TouchStar may have, TouchStar shall be entitled to an injunction, issued by any court of competent jurisdiction, wherever located, restraining any violation of this Section 7 or specified performance if applicable. Reseller hereby waives, with respect to any future dispute related to this Section 7, any defense based on the argument that TouchStar will not be irreparably harmed by a breach or that TouchStar has available<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>stomers in the Territory pursuant to this Agreement ("Assessments"). If Reseller fails to pay any Assessments when due, and TouchStar receives any Assessment from any Governmental Body, then TouchStar shall give written notice of the Assessment to Reseller. Failure by Reseller immediately to pay such Assessment may, in TouchStar's sole discretion, result in the immediate termination of this Agreement. 6.3 OTHER TERMS AND CONDITIONS. The terms and conditions of this Agreement and of the applicable TouchStar invoice or confirmation shall apply to all TouchStar Software and Support Services, and the installation of call center systems, provided by TouchStar under this Agreement. Terms in Reseller's purchase orders and other printed forms shall not apply to any order, notwithstanding TouchStar's acknowledgment or acceptance of the order. In the event of any conflict between the terms of this Agreement and any standard forms of either TouchStar or Reseller, the terms of this Agreement shall govern. Reseller shall not, and is not authorized to, make any warranties as to the TouchStar Software and Support Services, or with regard to the installation of call center systems by TouchStar, and any warranties exceeding the scope of TouchStar warranties shall be null and void, subject only to contrary legal requirements applicable to the Territory. 6.4 LIMITED WARRANTY. TouchStar warrants that (a) with regard to the TouchStar Software, (i) TouchStar will convey good title to the TouchStar Software free and clear of any claims, liens, security agreements or other encumbrances and (ii) for a period of ninety (90) days after delivery, the TouchStar Software will perform in all 13 material respects with the specifications contained in TouchStar's technical literature with regard to the TouchStar Software, (b) the Support Services will be provided in a good and workmanlike manner consistent with industry practices, and (c) with regard to call center systems installed by TouchStar, (i) TouchStar will convey good title to the call center system free and clear of any claims, liens, security agreements or other encumbrances and (ii) the call center system will be installed in a good and workmanlike manner substantially in conformance with the Specifications. EXCEPT AS PROVIDED IN THIS SECTION 6.4, TOUCHSTAR DOES NOT WARRANT THE TOUCHSTAR SOFTWARE OR SUPPORT SERVICES, OR THE INSTALLATION OF ANY CALL CENTER SYSTEM, TO RESELLER, ANY OTHER RESELLER OR ANY CUSTOMER. TOUCHSTAR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, RELATING THERETO. TOUCHSTAR IS UNAWARE OF THE USE OF ANY CALL CENTER SYSTEM INSTALLED&bbsp;BY TOUCHSTAR. TOUCHSTAR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER WITH REGARD TO THE USE OF ANY CALL CENTER SYSTEM, INCLUIDNG WHETHER THE USE OF THE CALL CENTER SYSTEM CONFORMS TO APPLICABLE FEDERAL, STATE AND LOCAL LAWS. RESELLER BEARS SOLE RESPONSIBILITY TO DETERMINE WHETHER THE USE OF A CALL CENTER SYSTEM BY A CUSTOMER COMPLIES WITH APPLICABLE FEDERAL STATE AND LOCAL LAWS. SHOULD APPLICABLE LAW NOT PERMIT THE FOREGOING EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, THEN TOUCHSTAR HEREBY GRANTS THE MINIMUM EXPRESS AND IMPLIED WARRANTIES REQUIRED BY SUCH APPLICABLE LAW. 6.5 LIMITATION OF LIABILITY. IN NO EVENT SHALL TOUCHSTAR BE LIABLE TO RESELLER, ANY OTHER RESELLER OR ANY CUSTOMER BY REASON OF ANY REPRESENTATION OR IMPLIED WARRANTY, CONDITION, OTHER TERM, OR ANY DUTY AT COMMON LAW, OR UNDER THE TERMS OF THIS AGREEMENT, FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE (WHETHER FOR LOSS OF PROFIT OR OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH ANY ACT OR OMISSION OF TOUCHSTAR RELATING TO THE DEVELOPMENT, MANUFACTURE, OR SUPPLY OF THE TOUCHSTAR SOFTWARE, THE SERVICES, OR THE INSTALLATION OF ANY CALL CENTER SYSTEM, THEIR RESALE BY RESELLER, OR THEIR USE BY ANY CUSTOMER OR OTHER END USER. TOUCHSTAR SHALL NOT BE LIABLE FOR THE PROVISION OF SERVICES BY RESELLER OR ANY OTHER RESELLER, OR ANY ALTERATIONS OR MODIFICATIONS BY RESELLER TO THE TOUCHSTAR SOFTWARE OR ANY CALL CENTER SYSTEM. THE SOLE OBLIGATION OF TOUCHSTAR, AND THE SOLE REMEDY OF RESELLER OR ANY OTHER RESELLER, UNDER THIS AGREEMENT SHALL BE (A) WITH REGARD TO THE TOUCHSTAR SOFTWARE OR ANY CALL CENTER SYSTEM, THE REPLACEMENT OR REPAIR OF THE TOUCHSTAR SOFTWARE OR THE CALL CENTER SYSTEM OR, AT THE OPTION OF TOUCHSTAR, THE RETURN OF THE PURCHASE PRICE PAID BY RESELLER 14 FOR SUCH TOUCHSTAR SOFTWARE OR CALL CENTER SYSTEM AND (B) WITH REGARD TO SERVICES, THE REPERFORMANCE OF THE SERVICES. 7. INTELLECTUAL PROPERTY RIGHTS. 7.1 OWNERSHIP OF INTELLECTUAL PROPERTY. (a) Reseller acknowledges that TouchStar owns or has rights to license the intellectual property and proprietary rights in, to, and relating to the TouchStar Software and Support Services, including, but not limited to, the Intellectual Property Rights. (b) To the extent that Reseller or any Other Reseller is deemed to be the owner of all or any portion of the TouchStar Software, any Intellectual Property Rights of TouchStar or any Ancillary Software, or any improvements or intellectual property rights related thereto pursuant to applicable law, Reseller (i) <|eot_id|>
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entitled to place signage, up to 6 feet × 10 feet at each public appearance made by Honey Hole, including four (4) "Kids Corner" children's benefits during the term of this Agreement. 4. Use of Logo. The Company agrees that the Cano logo and slogan shall appear on the primary boat and vehicle used in each episode. Cano recognizes and agrees that it does not and will not have exclusive rights and that other sponsor's logos may appear on the primary boat and vehicle. The Company agrees that Cano's logo shall be substantially the same size as other such sponsors; 5. Featured Guests. The Company agrees to feature not less than two (2) persons designated by Cano as guests on not less than six (6) separate episodes per year. 6. Provision of Lead in Trailer and Commercials. Cano has already provided the Company with voice over lead-in(s), 30 second commercials and trailers of a quality satisfactory to the Company and content that meets the Company's minimum standards. The Company shall utilize the already produced lead-in, commercials and trailers. 7. Sales and Other Taxes. The Company will add sales, excise and any other tax or surcharge to its invoices which it is obligated to collect and remit under the laws of the State of Texas, the United States or any other jurisdiction. 8. Notice. Any notice provided for under the terms of this Agreement by either party to the other shall be in writing and may be effected by personal delivery in writing or registered or certified mail, return receipt requested. Notice to Boyd shall be sufficient if made or addressed to 2003 Navasota Cove, Westlake, Texas 76092. Notice to Cano shall be sufficient if made or addressed to Cano Petroleum, Inc., 801 Cherry Street, Suite 3200, Fort Worth, Texas 76102. Each party may change the address at which notice may be sent to that party by giving notice of such change to the other party in accordance with the provisions of this Paragraph. 9. Term and Renewal. The term of this Agreement shall be one (1) year, commencing January 1, 2008 and ending on December 31, 2008. 10. Force Majeure. In the event that either party shall be prevented from performing any of its obligations due under the terms of this Agreement by an act of God, by acts of war, riot, or civil commotion, by an act of State, by strikes, fire, flood, or by the occurrence of any other event beyond the control of the parties hereto, that party shall be excused from any further performance of the obligations and undertakings set forth under the terms of this Agreement. 11. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas and venue for any legal action brought in State Court shall lie exclusively in Tarrant County, Texas and venue for any action brought in federal court shall lie exclusively in the Northern District of Texas, Fort Worth Division. 12. Rights Cumulative. The rights and remedies granted in this agreement to Cano in the event of default are cumulative, and the exercise of such rights shall be without prejudice to the enforcement of any other right or remedy authorized by law or this agreement. 13. Attorneys' Fees. If any legal action is brought by either of the parties hereto, it is expressly agreed that the prevailing party in such legal action shall be entitled to recover from the other party reasonable attorney's fees in addition to any other relief that may be awarded. For the purposes of this clause, the prevailing party is the party in whose favor final judgment is entered. In the event that declaratory or injunctive relief alone is granted, the court may determine which, if either, of the parties shall be considered to be the prevailing party. The amount of reasonable attorney's fees shall be determined by the court, in the trial of such action or in a separate <|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>QuickLinks -- Click here to rapidly navigate through this document EXHIBIT 10.1 Sponsorship Agreement THIS AGREEMENT made this 5th day of December, 2007, between R. C. Boyd Enterprises, LLC, a Texas limited liability company, whose principal place of business is located at 2003 Navasota Cove, Westlake, Texas, referred to in this Agreement as "Company" or "Boyd", and Cano Petroleum, Inc., a Delaware corporation qualified to transact business in Texas, whose principal place of business is located at 801 Cherry Street, Suite 3200, Fort Worth, Texas 76102, referred to in this agreement as "Sponsor" or "Cano". WHEREAS, the Company is the owner of the rights to the television production known as Honey Hole (hereinafter "Honey Hole" or "Show"); WHEREAS, Sponsor desires to acquire the exclusive right to be the lead sponsor of the Show at an agreed price and under specified terms and conditions; NOW, THEREFORE, for and in consideration of the premises and the mutual promises, covenants, and agreements set forth in this Agreement, the Company and Cano agree as follows: 1. Required Production. The Company shall produce no less than forty (40) original episodes of the Show per year; 2. Lead Sponsorship. The Company agrees that Cano shall be identified as the lead sponsor, by having a thirty second lead-in promotion at the beginning of each episode; a thirty second trailer promotion at the end of each episode; and two thirty second commercials during each episode. 3. Signage at Public Appearances. The Company agrees that Cano shall be<|eot_id|>
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y the Company, under or in association with any of the Seller Licensed Trademarks, shall (i) be substantially the same as or greater than the quality of goods and services provided under such Seller Licensed Trademarks immediately prior to the Effective Date and (ii) not be associated with any goods or services, including any activities, that are reasonably likely to have an adverse effect on (A) the image or reputation of any of the Seller Licensed T<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>e, royalty-free license in, to and under the Arizona Licensed Copyrights for use in the Company Field throughout the world. 3.2 Company Copyright Grant. Subject to the terms and conditions of this Agreement, the Company hereby grants to Seller a perpetual, non- exclusive, royalty-free license in, to and under the Company Licensed Copyrights for use in the Arizona Field throughout the world. 4. GRANT OF KNOW-HOW LICENSE 4.1 Arizona Know-How Grant. Subject to the terms and conditions of this Agreement, Arizona hereby grants to the Company a perpetual, non- exclusive, royalty-free license in, to and under the Arizona Licensed Know-How for use in the Company Field throughout the world. 4.2 Company Know-How Grant. Subject to the terms and conditions of this Agreement, the Company hereby grants to Seller a perpetual, non- exclusive, royalty-free license in, to and under the Company Licensed Know-How for use in the Arizona Field throughout the world. 5. GRANT OF PATENT LICENSE 5.1 Arizona Patent Grant. Subject to the terms and conditions of this Agreement, Arizona hereby grants to the Company a perpetual, non-exclusive, royalty-free license in, to and under the Arizona Licensed Patents for use in the Company Field throughout the world. 5 5.2 Company Patent Grant. Subject to the terms and conditions of this Agreement, the Company hereby grants to Seller a perpetual, non-exclusive, royalty-free license in, to and under the Company Licensed Patents for use in the Arizona Field throughout the world. 6. GRANT OF TRADEMARK LICENSE 6.1 Arizona Licensed Trademark Grant. Subject to the terms and conditions of this Agreement, Arizona hereby grants to the Company a limited, non- exclusive, royalty-free, non-sublicensable (except as set forth in Section 7.1), non-assignable license in, to and under the Arizona Licensed Trademarks for the Arizona Trademark License Term for use in the Company Field throughout the world only in the form and manner that such Arizona Licensed Trademarks are used in the Business as of the Closing, provided that the Company shall use commercially reasonable efforts to present the Arizona Licensed Trademarks in the form set forth on Schedule 6.1. 6.2 Diamond Licensed Trademark Grant. Subject to the terms and conditions of this Agreement, Arizona hereby grants to the Company a limited, non- exclusive, royalty-free, non-sublicensable (except as set forth in Section 7.1), non-assignable (except as set forth in Section 13.2) license in, to and under the Diamond Licensed Trademarks for the Diamond Trademark License Term for use with respect to the Diamond Product throughout the world only in the form and manner set forth on Schedule 6.2. 6.3 Quality Control. The Buyer Entities acknowledge the importance of Arizona's exercise of quality control over the use of the Seller Licensed Trademarks to preserve the continued integrity and validity of the Seller Licensed Trademarks and to protect the value and goodwill associated with the Seller Licensed Trademarks, and accordingly: (a) The Company shall ensure that all goods and services provided b<|eot_id|>
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its reasonable endeavours to replace the invalid provision in that respect with a valid and enforceable substitute provision the effect of which is as close (commercially and legally) to its intended effect as possible. 7.3 No variation of this Agreement (or any of the documents referred to in it) shall be valid unless it is in writing (which, for this purpose, does not include email) and signed by or on behalf of each of the parties. The expression "variation" includes any variation, supplement, deletion or replacement however effected. 7.4 This Agreement may be executed in any number of counterparts and by the parties to it on separate co<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>bility under this Agreement; provided, however, that the disclosing party shall give the other party written notice of the Confidential Information to be disclosed as far in advance of its disclosure as is practicable (if permitted by Applicable Law) and shall use reasonable efforts to obtain assurances that confidential treatment will be accorded to such Confidential Information. In this Clause 5.4, "Litigation" means any action, cause of action, claim, demand, suit, proceeding, citation, summons, subpoena, inquiry or investigation of any nature, civil, criminal, regulatory or otherwise, in law or in equity, pending or threatened, by or before any court, tribunal, arbitrator, expert or other governmental authority. 6. Effectiveness and Termination. 6.1 This Clause 6 and Clauses 1, 5, 7 through 9 (inclusive) come into force and effect upon the execution of this Agreement by the Parties. The remaining provisions of this Agreement shall be effective only upon Completion 1 (the "Effective Time"). 7 6.2 Unless otherwise mutual agreed between the Parties, this Agreement shall remain in effect until the earlier of the below events occur: (a) The fifth (5t h) anniversary of this Agreement; and (b) Otkritie ceasing to own more than 2,237,216 class B shares or American depositary shares of QIWI. 6.3 Notwithstanding Clause 6.2, this Clause 6 and Clauses 1, 5, 7 through 9 (inclusive) shall survive any termination of this Agreement. 7. Miscellaneous. 7.1 Nothing in this Agreement or in any document referred to in it shall constitute any of the Parties a partner of any other, nor shall the execution, completion and implementation of this Agreement confer on any Party any power to bind or impose any obligations to any third parties on any other Party or to pledge the credit of any other Party. 7.2 If any provision or part of this Agreement is void or unenforceable due to any Applicable Law, it shall be deemed to be deleted and the remaining provisions of this Agreement shall continue in full force and effect. Each party shall use<|eot_id|>
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ection 9.1 (Grants to Ginkgo), any BLI Confidential Information or any Beacon Platforms that may be transferred to Ginkgo by BLI under this Agreement, in each case for a purpose other than as expressly permitted under this Agreement. 9.1.6 Use in Excluded Fields. In the event BLI [***] that Ginkgo is using [***] in the Excluded Fields ("Ginkgo Excluded Use"), BLI shall send Ginkgo a written notice indicating that it believes Ginkgo is using [***] in an Excluded Field and, within [***] ([***]) Business Days after Ginkgo's receipt of BLI's written notice, Ginkgo shall investigate such claim internally and shall either (a) [***], or (b) [***], and the Parties will resolve such dispute pursuant to Section 14.5.2 (Dispute Resolution). If, following the dispute resolution process set forth in Section 14.5.2 (Dispute Resolution), it is determined that Ginkgo is using [***] in an Excluded Field, then BLI may either (i) [***], (ii) [***] or (iii) [***]; provided that, following determination that Ginkgo is using [***] in an Excluded Field pursuant to Section 14.5.2 (Dispute Resolution), if BLI wishes to make any election under clause (i), (ii) or (iii), it must notify Ginkgo within [***] ([***]) Business Days of such determination. [***]. 9.2 Grants to BLI. Subject to the terms and conditions of this Agreement, during the Term, Ginkgo hereby grants and shall grant to BLI: 9.2.1 a [***] and this Section 9.2 (Grants to BLI)), [***] license in, to and under any Intellectual Property (a) Controlled by Ginkgo, (b) used by Ginkgo in the conduct of a Workflow Development Plan and (c) necessary for BLI to perform its ob<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>t or Ginkgo's rights or remedies under this Agreement or Applicable Law, any use of [***] by BLI or its Affiliates, alone or in combination with a Third Party to develop a Workflow or a part or component thereof; or a derivative, modification, replication or progeny of a biological entity that is [***] a Specific Implementation shall be deemed a material breach of this Agreement by BLI and shall give rise to Ginkgo's right to terminate this Agreement pursuant to Section 13.2.1 (Material Breach). 9. LICENSE GRANTS 9.1 Grants to Ginkgo. 9.1.1 Scope of Grants. Subject to the terms and conditions of this Agreement, and in consideration for the payments to BLI under this Agreement, during the Term, BLI, on behalf of itself and its Affiliates, hereby grants and shall grant to Ginkgo a non-exclusive, sublicensable (solely in accordance with Section 9.1.4 (Consent to Sublicense)), non-transferable, non-royalty-bearing (subject to Section 13.3.2 (Effects of Termination Based Upon Ginkgo Buy-Down Election)) worldwide license in, to and under (i) BLI Background IP, and (ii) other Intellectual Property that is Controlled by BLI and that is [***] BLI Inventions, with both of (i) and (ii) being limited to what is necessary for Ginkgo to [***] and (iii) the Collaboration Intellectual Property solely to: (a) perform research [***] on biological entities, including organisms, cells and strains (and sub-components thereof); (b) (i) design and develop (A) Collaboration Workflows as generally contemplated under a Workflow Development Plan and (B) Ginkgo Workflows as permitted under this Agreement and (ii) use [***] Workflows to conduct the activities set forth in clause (a) and clause (c) of this Section 9.1.1 (Scope of Grants); (c) perform commercial research [***] and other Commercial Services for Third Parties; and (d) in each case of clauses (a) through (c) of this Section 9.1.1 (Scope of Grants), the license granted is for activities solely within the Licensed Field. 9.1.2 License Grant to Exploit [***]. Subject to the terms and conditions of this Agreement, during the Term BLI, on behalf of itself and its Affiliates, hereby grants and shall grant to Ginkgo a [***] license within the Licensed Field in, to and under any Intellectual Property Controlled by BLI that is necessary to make, have made, sell, have sold, import or use any [***] to make, have made, sell, have sold, import or use such [***]. Page 46 of 85 9.1.3 No Consumable License. For clarity and without limiting Section 8.8.1 (Non-Exclusive Manufacturing License; Covenant), the licenses granted to Ginkgo in Section 9.1.1 (Scope of Grants) and Section 9.1.2 (License Grant to Exploit [***]) do not include the right to make, have made, offer to sell or sell Consumables, [***], to or for Third Parties or any Ginkgo Affiliate or Ginkgo Subcontractor that are [***] on the Beacon Platform [***]. 9.1.4 Consent to Sublicense. Ginkgo may grant sublicenses of the license granted to Ginkgo under Section 9.1.1 (Scope of Grants) and Section 9.1.2 (License Grant to Exploit [***]) with the prior written consent of BLI[***]; provided that such prior written consent of BLI shall not be needed for any sublicense granted by Ginkgo to (a) a Permitted Subcontractor of Ginkgo under Section 2.7 (Subcontracting) to the extent such sublicense relates to the subcontracted activities, (b) any wholly-owned subsidiary of Ginkgo existing as of the Effective Date or (c) any other Person, including other Affiliates and any Third Party, under Section 9.1.2 (License Grant to Exploit [***]) so long as, in the case of this clause (c), the sublicense [***]. Each sublicense of the license granted to Ginkgo under Section 9.1.1 will (i) be in writing, (ii) be consistent with the terms and conditions of this Agreement and (iii) require each sublicensee thereunder to comply with all terms of this Agreement applicable to a sublicensee. Notwithstanding the grant of any sublicense, Ginkgo shall remain [***] liable to BLI for the performance of all of Ginkgo's obligations under, and Ginkgo's compliance with all provisions of, this Agreement. 9.1.5 Responsibility. Ginkgo shall not (and Ginkgo shall ensure that its Affiliates and [***] sublicensees do not) use any Intellectual Property of BLI's that is licensed under S<|eot_id|>
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means the interest rate cap agreement relating to the Class A-1b Notes consisting of the 2002 ISDA Master Agreement (Multicurrency Cross-Border), schedule and credit support annex, each dated as of January 24, 2020, and the confirmation, dated on or about January 23, 2020, in each case, between the Issuer and the Cap Counterparty, as such agreement may be amended and supplemented from time to time in accordance with its terms. "Cap Collateral Account" means the account or accounts, if any, established under Section 9.10 of the Transfer and Servicing Agreement as required by the terms of the Cap Agreement. "Cap Counterparty" means Bank of America, N.A., or any Eligible Replacement Cap Counterparty, to the extent such Eligible Replacement Cap Counterparty replaces the existing Cap Counterparty under the Cap Agreement or any replacement interest rate cap agreement. "Cap Custodian" has the meaning stated in Section 9.10 of the Transfer and Servicing Agreement. "Cap Payment" means, for any Interest Period in which One-Month LIBOR (calculated in accordance with the Cap Agreement) exceeds 3.00%, an amount equal to the product of (x) the excess, if any, of One-Month LIBOR (calculated in accordance with the Cap Agreement) for the related Payment Date over 3.00%, (y) the notional amount of the cap for such Payment Date, as set forth in the Cap Agreement, and (z) a fraction, the numerator of which is the actual number of days elapsed in such Interest Period and the denominator of which is 360, which payment shall be deposited into the Collection Account by the Cap Counterparty on or before the second Business Day preceding the related Payment Date. "Cellco" means Cellco Partnership d/b/a Verizon Wireless, a Delaware general partnership, doing business as Verizon Wireless. "Certificate" means either the Class A Certificate or the Class B Certificate, as the context requires. "Certificate Distribution Account" means the account established and maintained as such pursuant to Section 4.1 of the Trust Agreement. A-11 Source: VERIZON ABS LLC, 8-K, 1/23/2020 "Certificate of Trust" means the Certificate of Trust of Verizon Owner Trust 2020-A. "Certificate Paying Agent" means initially the Owner Trustee and any other Person appointed as Certificate Paying Agent under Section 3.11 of the Trust Agreement. "Certificateholder" means the registered holder of a Certificate. "Class" means the Class A-1a Notes, the Class A-1b Notes, the Class B Notes and the Class C Notes, as applicable. "Class A Certificate" means the Class A Certificate executed by the Issuer and authenticated by the Owner Trustee, evidencing a portion of the Equity Interest in the Issuer, substantially in the form attached as Exhibit B-1 to the Trust Agreement. "Class A Certificateholder" means collectively, the Originators or their designee. "Class A Notes" means, collectively, the Class A-1a Notes and the Class A-1b Notes. "Class A-1a Notes" means the $1,325,700,000 Class A-1a 1.85% Asset Backed Notes issued by the Issuer, substantially in the form of Exhibit A to the Indenture. "Class A-1b Notes" means the $100,000,000 Class A-1b One-Month LIBOR (or, upon the occurrence of a Benchmark Transition Event, the appropriate Benchmark Replacement) + 0.27% Asset Backed Notes issued by the Issuer, substantially in the form of Exhibit A to the Indenture. "Class B Certificate" means the variable funding certificate executed by the Issuer and authenticated by the Owner Trustee, substantially in the form attached as Exhibit B-2 to the Trust Agreement. "Class B Certificate Principal Balance" means (i) on the Closing Date, $0, (ii) on any Acquisition Date, an amount equal to the excess, if any, of the Additional Receivables Transfer Amount for the Additional Receivables to be acquired by the Issuer o<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>eivable. "Benchmark" means, initially, One-Month LIBOR; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to One-Month LIBOR or the then-current Benchmark, then "Benchmark" means the applicable Benchmark Replacement. "Benchmark Administrator" means, (1) with respect to One-Month LIBOR, the ICE Benchmark Administration Limited, (2) with respect to SOFR, the Federal Reserve Bank of New York and (3) with respect to any other Benchmark, the entity responsible for administration of such Benchmark (or in each case, any successor administrator). A-8 Source: VERIZON ABS LLC, 8-K, 1/23/2020 "Benchmark Replacement" means the first alternative set forth in the order below that can be determined by the Administrator as of the Benchmark Replacement Date: (1) the sum of (a) Term SOFR and (b) the Benchmark Replacement Adjustment, provided that there has been no official public statement or publication of information by the Benchmark Administrator or the regulatory supervisor for the Benchmark Administrator announcing that Term SOFR is not yet representative that has not been either withdrawn or superseded by a similar official public statement or publication that Term SOFR has become representative, (2) the sum of (a) Compounded SOFR and (b) the Benchmark Replacement Adjustment, (3) the sum of (a) the ISDA Fallback Rate and (b) the Benchmark Replacement Adjustment, (4) the sum of (a) the alternate rate of interest that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current Benchmark for the applicable Corresponding Tenor and (b) the Benchmark Replacement Adjustment, and (5) the sum of (a) the alternate rate of interest that has been selected by the Administrator in its reasonable discretion as the replacement for the then-current Benchmark for the applicable Corresponding Tenor and (b) the Benchmark Replacement Adjustment. "Benchmark Replacement Adjustment" means the first alternative set forth in the order below that can be determined by the Administrator as of the Benchmark Replacement Date: (1) the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement, (2) if the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, then the ISDA Fallback Adjustment, and (3) the spread adjustment (which may be a positive or negative value or zero) that has been selected by the Administrator in its reasonable discretion for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement. "Benchmark Replacement Conforming Changes" means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the timing and frequency of determining rates and making payments of interest, and other administrative matters) that the Administrator decides in its reasonable discretion may be appropriate to reflect the adoption of such Benchmark Replacement in a manner substantially consistent with market practice (or, if the Administrator decides that adoption of any portion of such market practice is not administratively feasible or if the Administrator determines that no A-9 Source: VERIZON ABS LLC, 8-K, 1/23/2020 market practice for use of the Benchmark Replacement exists, in such other manner as the Administrator determines in its reasonable discretion is reasonably necessary). "Benchmark Replacement Date" means: (1) in the case of clause (1) or (2) of the definition of "Benchmark Transition Event", the later of (a) the date of the related official public statement or publication of information referenced therein and (b) the date on which the applicable Benchmark Administrator permanently or indefinitely ceases to provide the Benchmark, or (2) in the case of clause (3) of the definition of "Benchmark Transition Event", the date of the official public statement or publication of information. For the avoidance of doubt, if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date shall be deemed to have occurred prior to the Reference Time for such determination. "Benchmark Transition Event" means the occurrence of one or more of the following events with respect to the then-current Benchmark: (1) an official public statement or publication of information by or on behalf of the Benchmark Administrator announcing that such Benchmark Administrator has ceased or will cease to provide the Benchmark, permanently or indefinitely; provided, that, at the time of such statement or publication, there is no successor Benchmark Administrator that will continue to provide the Benchmark, (2) an official public statement or publication of information by the regulatory supervisor for the Benchmark Administrator, the central bank for the currency of the Benchmark, an insolvency official with jurisdiction over the Benchmark Administrator, a resolution authority with jurisdiction over the Benchmark Administrator or a court or an entity with similar insolvency or resolution authority over the Benchmark Administrator, which states that the Benchmark Administrator has ceased or will cease to provide the Benchmark permanently or indefinitely; provided, that, at the time of such statement or publication, there is no successor Benchmark Administrator that will continue to provide the Benchmark, or (3) an official public statement or publication of information by the regulatory supervisor for the Benchmark Administrator announcing that the Benchmark is no longer representative. "Beneficiary" has the meaning stated in the Parent Support Agreement. "Benefit Plan" means an "employee benefit plan" as defined in Section 3(3) of ERISA, which is subject to the provisions of Title I of ERISA, a "plan" described in and subject to A-10 Source: VERIZON ABS LLC, 8-K, 1/23/2020 Section 4975 of the Code, an entity whose underlying assets include "plan assets" by reason of an employee benefit plan's or plan's investment in the entity or any other employee benefit plan that is subject to any Similar Law. "Book-Entry Note" means any of the Notes issued in book-entry form under Section 2.12 of the Indenture. "Business Day" means any day other than (a) a Saturday, Sunday or other day on which banks in New York, New York or any jurisdiction in which the Corporate Trust Office of the Indenture Trustee or the Owner Trustee is located are authorized or required to close or (b) a holiday on the Federal Reserve calendar. "Cap Agreement"<|eot_id|>
5.150083
5.150083
oundup Products are under the custody of the Agent and, upon request, shall furnish Monsanto with satisfactory evidence of the maintenance of said insurance. Further, each party shall make all contributions and pay all payroll taxes required under federal social security laws and state unemployment compensation laws or other payments under any laws of a similar character as to its own personnel involved in the Roundup L&G Business (including any purported "independent 29 contractors" subsequently classified by any authority under any Law, as an employee) in connection with the performance of this Agreement. Section 6.6 Liens. Subject to the provisions of any existing intercreditor agreement to which Monsanto is currently a party (as the same may be amended, modified or terminated) and except as may otherwise be agreed to by Monsanto, which agreement shall not be unreasonably withheld in the case of similar arrangements with existing or future institutional lenders, the Agent agrees not to allow any liens or encumbrances of any nature to attach to Roundup Products. At Monsanto's request, the Agent, sub-agent, or sub-distributor shall execute such financing statements, security agreements and other documents as Monsanto may reasonably request to create, perfect, and continue in effect its security interests hereunder. Section 6.7 Promoting Safe Use-Practices. Roundup Products may be or become hazardous unless used in strict accordance with Monsanto's product labels. The Agent shall use commercially reasonable methods to inform and familiarize its employees, agents, Customers, contractors (including warehousemen and transporters) and others who may handle or use Roundup Products of the potential hazards pertaining thereto (including accidental breakage or fire), and shall stress the safe use and application of Roundup Products in strict accordance with Monsanto's product labels. In addition, the Agent shall provide HM126F training to its personnel as required by the United States Department of Transportation (and such other training as may be required by other countries within the Included Markets). The Agent shall have the responsibility to dispose of waste materials in accordance with all applicable Laws. Section 6.8 Monsanto Inspection Rights. From time to time, as Monsanto or the Steering Committee may request, the Agent shall permit, upon reasonable request and during normal business hours, representatives of Monsanto or the Steering Committee to inspect, with regard to Roundup Products, the Agent's inventories, warehousing, and shipping procedures. Section 6.9 Recalls. The Agent shall cooperate with Monsanto, and promptly take such actions as requested by Monsanto, with respect to any defective product including any "stop-sales" or recalls for Roundup Products. Section 6.10 New Roundup Products. (a) During the term of this Agreement, Monsanto covenants and agrees to first offer (the "Product Offer") to the Agent, with respect to the Included Markets, the exclusive agency and distribution rights to any newly created non-selective herbicide product, which is not marketed for Lawn and Garden Use as of the date of this Agreement, and which Monsanto, in its exclusive, reasonable discretion, determines to be suitable for sale as a new product for Lawn and Garden Use (the "New Product"); provided, however, that for the Lawn and Garden Market, that any new product containing Glyphosate or another non- selective herbicide shall be considered to be a New Product. The Product Offer shall be in writing, shall be in sufficient detail describing such New Product, and shall be made within sixty (60) days of the date of commercialization of such New Product for uses other than Lawn and Garden Use. In no event shall Monsanto, directly or indirectly, commercialize any New Product for Lawn and Garden Use in the Included Markets without first offering such New Product to the Agent pursuant to the terms of this Section 6.10. If the Agent agrees in writing 30 within ninety (90) days of receipt of the Product Offer to accept the New Product, then such New Product shall be, without further action or amendment, included within the definition of Roundup Products and be subject to the terms and conditions of this Agreement. In such event, the parties shall adjust the Commission Thresholds to reflect this additional source of revenue unless the New Product is a Glyphosate-based product or an improvement of any existing Roundup Products in which case the Commission Thresholds shall remain the same. If the Agent fails to agree in writing to accept the Product Offer within such ninety (90) days of receipt, then Monsanto shall have the exclusive right to manufacture, package, promote, distribute, and sell such New Product in the Included Markets, regardless of any actual or potential conflict with the terms of Agreement. (b) During the term of this Agreement, the Agent may, from time to time, propose that Monsanto utilize a different formulation of non-selective herbicide product for Lawn and Garden Use in the Included Markets that may or may not contain Glyphosate (an "Agent Proposed Product") and offer the Agent the exclusive agency and distribution rights to such Agent Proposed Product under this Agreement. Any Agent Proposed Product proposal shall contain supporting detail describing the Agent Proposed Product. The Agent shall supply Monsanto with any information Monsanto reasonably requests as part of its evaluation. Monsanto shall not unreasonably delay its evaluation of an Agent Proposed Product following receipt of any such information. Monsanto shall give good faith consideration to all Agent Proposed Products, and provided that Monsanto shall have the sole discretion in branding any Agent Proposed Product, Monsanto shall not unreasonably refuse to submit to the Agent a Product Offer for an Agent Proposed Prod<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>s Systems and Reporting Obligation. The Agent shall establish and maintain all such systems and procedures (financial, logistical, or otherwise) as reasonably requested by Monsanto or the Steering Committee in connection with the Agent's performance under this Agreement. For all reports, the data will include current period and current YTD, forecasts and budgets; and comparisons with same period and YTD and forecasts and budgets for the year previous. Specifically, the Agent shall provide the following reports: 28 (a) Weekly Reports. On the second business day of each week, the Agent shall provide to the Global Support Team update reports for the prior week, showing: (i) dollar and case shipments by the top 25 Customers and by SKU (stock keeping unit), (ii) inventory levels by SKU for North America, (iii) collection activities by the top 25 Customers, (iv) agency fill rate for the top 10 Customers (Roundup Products ordered by Customers and shipped by the Agent by line item, unit and dollar amount), and (v) POS sell-through by SKU by the top 7 Customers that provide such information. (b) Monthly Reports. On the sixth business day of each Month, the Agent shall provide to the Steering Committee and Monsanto (i) the type of data contained in the weekly reports (as set forth in Section 6.3(a)) for the prior calendar month and the current year-to-date, (ii) full P&L, balance sheets and cash flow statements, (iii) Netback expense detail (accruals and actuals), (iv) Expense detail (accruals and actuals), (v) Cost of Goods Sold detail, in each case comparing such information against budget, and against the previous year. (c) Quarterly Reports. The Agent shall provide to the Steering Committee and Monsanto, on a Quarterly basis and on a form provided by the Steering Committee (i) a summary of purchases of Roundup Products, in total cases or units, made by each Customer which is designated by the Steering Committee, (ii) inventory level by SKU by Customer and (iii) updated full year forecast. (d) Annual Reports. The Agent shall provide to the Steering Committee and Monsanto, on an Annual basis and on a form provided by the Steering Committee (i) bridge and tracking capability from Program Year to calendar year, (ii) a budget and (iii) a long range plan. (e) Other Reports. In addition, the Agent shall provide Monsanto or the Steering Committee with such other reports as may be reasonably requested within a period not to exceed thirty (30) days from such request. Section 6.4 Employee Incentives. Recognizing that, as Monsanto's exclusive agent for sale and distribution of Roundup Products, the Agent is to promote the sale of Roundup Products in the manner described in Section 2.2(a)(7), the Agent shall cause its appropriate officers and other management to devote an appropriate portion of their personal efforts to the sale and distribution of Roundup Products covered by this Agreement. Further, the Agent shall ensure that the appropriate personnel are compensated in a manner reasonably intended to encourage them to promote the sale of Roundup Products in a commercially reasonable manner generally consistent with other products or product lines, of similar volume or having similar margins (as compared to the overall Roundup P&L margins), of the Agent. Section 6.5 Insurance. The Agent, shall, during the term of this Agreement, maintain full insurance against the risk of loss or damages to the Roundup Products for any Agents' warehouse where R<|eot_id|>
2.591207
2.591207
roval Regulatory Activities. Following the filing of the MAA for the Product in the Territory, Zogenix and Distributor shall collaborate in good faith concerning a pricing negotiation strategy for the Product. Following Regulatory Approval of the Product in the Field in the Territory, Zogenix will be responsible for negotiating and obtaining initial pricing approval for the Product with the applicable Regulatory Authority in accordance with such strategy. The MAH Party shall use Commercially Reasonable Efforts to maintain Regulatory Approval for the Product in the Field in the Territory. The MAH Party shall be responsible for all interactions with Regulatory Authorities with respect to the Product in the Field in the Territory during the Term and maintaining Regulatory Approval of the Product in the Field in the Territory. In connection with such activities, the MAH Party shall: (i) timely inform the Non-MAH Party of any scheduled meetings with Regulatory Authorities in the Territory with respect to the Product in the Field as soon as practicable in order to allow the Non-MAH Party time to convey its opinion on the matter and (ii) use all reasonable efforts to ensure that the Non-MAH Party is afforded the opportunity to participate in such meetings. The MAH Party shall keep the Non-MAH Party regularly and fully informed of the preparation of submissions and communications with Regulatory Authorities with respect to the Product in the Field in the Territory. In particular, the MAH Party shall promptly provide the Non-MAH Party with copies of all material documents, information and correspondence received from or provided to a Regulatory Authority with respect to the Product in the Field in the Territory and, upon reasonable request, with copies of any other documents, reports and communications from or to any Regulatory Authority relating to the Product in the Field in the Territory, as well as written 15 US-DOCS\105216871.19 Source: ZOGENIX, INC., 10-Q, 5/9/2019 summaries of all material oral communications with a Regulatory Authority with respect to the Product in the Field in the Territory. (A) Post-Marketing Surveillance Studies. The MAH Party shall be responsible for conducting any post-marketing surveillance studies, including those required by the MHLW or Applicable Law, that are required to maintain the MAA. The MAH Party shall ensure that Non-MAH Party is involved in the planning and conduct of all such post-approval activities and the decisions with respect thereto, including discussions with any Regulatory Authority and any decisions regarding any post-marketing surveillance studies with respect to, the Product in Field in the Territory. The MAH Party shall consider in good faith all input provided by Zogenix with respect to such regulatory activities. The MAH Party shall be responsible for filing any post-marketing surveillance studies with the MHLW. (B) Post-Approval Clinical Studies. Zogenix shall be responsible for conducting any post- approval clinical study that is requested upon or after approval or otherwise required by the MHLW as a condition of or to maintain the MAA approval. [***] shall bear [***] the total Out-of-Pocket Costs and Expenses incurred by the Parties while conducting any such post-approval clinical study that is for the Territory. Zogenix shall ensure that Distributor is involved in the planning and conduct of all such post-approval clinical studies and the decisions with respect thereto, including discussions with any Regulatory Authority and any decisions regarding any post-approval clinical study with respect to, the Product in Field in the Territory. Zogenix shall consider in good faith all input provided by the Distributor with respect to such post-approval clinical study. The MAH Party shall be responsible for filing any post-approval clinical studies with the MHLW. (C) Risk Management Plan. Zogenix shall be responsible for filing the initial risk management plan, if any, and approving any subsequent changes thereto. The MAH Party shall be responsible for conducting or having conducted any risk management plan requested or required by the MHLW. The Distributor shall support and implement the risk management plan and cooperate with Zogenix, and the Parties shall share and discuss the results and data generated from any risk management plan required by MHLW. The Distributor shall collaborate with Zogenix to ensure global alignment and consistency with the safety specifications, pharmacovigilance planning and risk management commitments and activities. (d) Transfer of Marketing Authorization. Zogenix shall be the marketing authorization holder of the Product in the Territory for the [***] following Regulatory Approval of the Product in the Territory. Thereafter, Zogenix shall transfer the marketing authorization for the Product in the Territory to Distributor within [***] following [***], unless delayed or prohibited by a Regulatory Authority or Applicable Law or otherwise agreed by the Parties. Upon the transfer of the marketing authorization of the Product in the Territory to Distributor, then Distributor shall be deemed the MAH Party for purposes of this Agreement and Zogenix shall be deemed the Non-MAH Party. (e) Ownership of Regulatory Information. The Parties acknowledge and agree that Zogenix shall retain the full unfettered ownership of the Data and drug dossier 16 US-DOCS\105216871.19 Source: ZOGENIX, INC., 10-Q, 5/9/2019 submitted to the PMDA for the Regulatory Approval (including but not limited to safety & efficacy data, clinical data package, drug formulation and method of administration). Notwithstanding the foregoing, if Zogen<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>he Field in the Territory and, upon reasonable request, with copies of any other documents, reports and communications from or to any Regulatory Authority relating to the Product in the Field in the Territory, as well as written summaries of all material oral communications with a Regulatory Authority with respect to the Product in the Field in the Territory. (ii) Post-App<|eot_id|>
9.501373
9.501373
0) business days after receipt of the notice of offer and the furnishing of all reasonably requested information within which to notify Franchisee or the owners, as applicable, of BKC's intent to exercise its right hereunder. Silence on the part of BKC shall constitute rejection. If BKC rejects the offer, Franchisee shall have 90 days to sell the Franchised Restaurant upon the terms offered to BKC, subject to the approval of BKC a s required below. If the proposed sale includes assets of Franchisee not related to the operation of franchised Burger King Restaurants, BKC may, at its option, elect to purchase only the assets related to the operation of franchised Burger King Restaurants and an equitable purchase price shall be allocated to each asset included in the proposed sale. A bona fide offer from a third party includes any transfer, conveyance, assignment, consolidation, merger or any other transaction in which legal or beneficial ownership of the franchise granted by this Agreement is vested in other than the Franchisee. 21 15.4.2 NO WAIVER. The election by BKC not to exercise its right of first refusal as to any offer shall not affect its right of first refusal as to any subsequent offer. 15.4.3 UNAUTHORIZED TRANSFER VOID. Any sale, attempted sale, assignment, or other transfer of the interests described in Subparagraph 15.4.1 without first giving BKC the right of first refusal described above shall be void and of no force and effect, and shall constitute an Event of Default under Paragraph 17.1(k). 15.4.4 SALE; BKC CONSENT. If BKC does not exercise its option under Subparagraph 15.4.1, Franchisee may conclude the sale to the purchaser who made the offer provided BKC's consent to the assignment or sale be first obtained as provided below. 15.5 BKC CONSENT TO TRANSACTION. BKC may impose reasonable conditions on its consent to the transfers contemplated in Subparagraphs 15.1 and 15.2 above. BKC is under no obligation to consent to the encumbrances contemplated in Subparagraphs 15.1 and 15.2 above, and may deny its consent to such encumbrances in its sole discretion. 15.5.1 TRANSFER OF SUBSTANTIALLY ALL ASSETS OR TRANSFER OF STOCK BY PRINCIPAL. Reasonable conditions in connection with (i) a transfer of the Franchisee's rights under this Agreement, the transfer of substantially all of the Franchisee's assets, or the delivery or grant of any additional equity securities, all pursuant to Subparagraph 15.1 above, or (ii) the transfer of the shares of the Franchisee pursuant to Subparagraph 15.2 above, shall include, without limitation, each of the following: (a) All of the Franchisee's accrued monetary obligations to BKC and its Affiliates must be paid at the time of the transfer; (b) The Franchisee must not be in default under this Agreement or any other agreement with BKC or its Affiliates at the time of transfer; (c) The transferee (and, if applicable, all owners of the transferee), must complete BKC's then current franchisee application procedures and meet all of BKC's then current criteria for approval as a BKC franchisee, including financial, character, managerial, credit, operational, and legal standards; (d) The transferee (and, if applicable, all owners of the transferee) must at BKC's option enter into (i) a written agreement, in a form acceptable to BKC, assuming (or guaranteeing) full performance of all obligations of the Franchisee under this Agreement, (ii) a substitute Franchise Agreement, for a term ending on the expiration date of this Agreement, in BKC's 22 then current form, except that royalty and advertising contribution or expenditure rates shall be the same as are provided for in this Agreement, and (iii) such ancillary agreements a<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|> obligation of Franchisee to maintain insurance is separate and distinct from its obligation to indemnify BKC under the provisions of Paragraph 13.3 and shall not be affected by reason of the negligence of or a claim of negligence against BKC. 13.2 WORKERS COMPENSATION, ETC. Franchisee agrees to participate in any governmental Worker's Compensation Program, unemployment insurance program, hospitalization program and any other similar program which may be required by the laws of the country where the Franchised Restaurant is located. 13.3 INDEMNITY. Franchisee is responsible for all losses or damages and contractual liabilities to third persons arising out of or in connection with possession, ownership or operation of the Franchised Restaurant, and for all claims or demands for damages to property or for injury, illness or death of persons directly or indirectly resulting therefrom. Franchisee agrees to defend, indemnify and save BKC, and its subsidiaries, affiliated and parent companies harmless of, from and with respect to any such claims, demands, losses, obligations, costs, expenses, liabilities, debts or damages, unless they are caused by the gross negligence of BKC itself BKC's right to indemnity under this Agreement shall arise and be valid notwithstanding that joint or concurrent liability may be imposed on BKC by statute, ordinance, regulation or other law. The indemnification of BKC by Franchisee for Franchisee's own negligence, acts or omissions, shall not be limited by the amount of insurance required under Paragraph 13.1, nor upon a claim that BKC is responsible for Franchisee's act or omissions or that Franchisee was acting in the capacity of an agent of BKC. This indemnity obligation shall include, but not be limited to, claims related to the employment of Franchisee's employees. This obligation of Franchisee to indemnify and defend BKC is separate and distinct from its obligation to maintain insurance under the provisions of Paragraph 13.1. BKC shall notify Franchisee of any claims, and Franchisee shall be given the opportunity to assume the defense of the matter, however, BKC shall have the right to participate in the defense of any claim or action against it which is assumed by Franchisee, at BKC's own cost and expense. If Franchisee fails to assume the defense, BKC may defend the action in the manner it deems 19 appropriate, and Franchisee shall pay to BKC all costs, including attorney's fees, incurred by BKC in effecting such defense, in addition to any sum which BKC may pay by reason of any settlement or judgment against BKC. No settlement of any claim against BKC shall be made by Franchisee which is in excess of the amount of insurance referred to in Paragraph 13.1 or which would subject BKC to liability in any amount not covered by such insurance without the prior written consent of BKC. Any final judicial determination of the negligence of BKC in an amount in excess of the policy limits of insurance required under Paragraph 13.1 shall be the responsibility of BKC. 14. TAXES. 14.1 PAYMENT WHEN DUE. The Franchisee shall pay when due all taxes levied or assessed by reason of the Franchisee's possession, ownership or operation of the Franchised Restaurant or items loaned to the Franchisee by BKC including any value added tax. In the event of any bona fide dispute as to the liability for a tax assessed against it, the Franchisee may contest the validity or the amount of the tax in accordance with the procedures of the taxing authority, however, the Franchisee shall not permit a tax sale or seizure against the premises or equipment. 14.2 WITHHOLDING TAXES. lt is understood and agreed by the parties that any and all tax liabilities arising out of this Agreement will be paid by the party owing such taxes. ln the event that BKC incurs withholding tax liability in the country in which the Franchised Restaurant is located as a result of the franchise fee or the royalty payments set forth above, it shall be the responsibility and obligation of the Franchisee to withhold from such franchise fee or royalty payments such withholding taxes as are required by law. The Franchisee shall provide BKC with corresponding receipts from the relevant taxing authorities to evidence such payments or amounts withheld. Taxes, such as income taxes of the Franchisee, which are based on profits from operation of the Franchised Restaurant are the sole responsibility of the Franchisee. 14.3 ELECTION. Where the law permits an election regarding the treatment of any supply or deemed supply under this Agreement for the purposes of any value added or other tax chargeable thereon, the Franchisee shall make or join in any such election as BKC may from time to time require. 15. DISPOSAL. 15.1 TRANSFER OF LNTEREST BY FRANCHISEE. Except with the prior written consent of an authorized officer of BKC, Franchisee shall not (a) directly or indirectly sell, assign, convey, give away, mortgage, pledge, hypothecate, charge, or otherwise transfer or encumber its rights or obligations under this Agreement, or assign any of Franchisee's rights or delegate any of its duties hereunder; (b) sell, issue, offer, transfer, convey, give away, or otherwise 20 grant or deliver any additional equity interests in the Franchisee, or (c) sell, assign, transfer, convey, or give away substantially all of the assets of the Franchised Restaurant. 15.2 TRANSFER OF INTEREST BY PRINCIPALS. Except with the prior written consent of an authorized officer of BKC, no Principal shall directly or indirectly sell, assign, convey, give away, mortgage, pledge, hypothecate, charge, or otherwise transfer or encumber any legal or beneficial equity interest in Franchisee. 15.3 NOTICE OF PROPOSED TRANSFER. Any proposed transferor shall notify BKC in writing of any proposed transfer of an interest referred to in Paragraph 15.1 or 15.2, as applicable, before the proposed transfer is to take place, and shall provide such information and documentation relating to the proposed transfer as BKC may reasonably require. 15.4 RIGHT OF FIRST REFUSAL. 15.4.1 NOTICE; EXERCISE OF OPTION. In the event Franchisee or the Principals wish to accept a bona fide offer from a third party to purchase all or substantially all of the assets constituting the Franchised Restaurant or of the majority of the voting stock of the Franchisee, the proposed transferor(s) shall give BKC written notice setting forth the name and address of the prospective purchaser, the price and terms of the offer together with a franchisee application completed by the prospective purchaser, a copy of the Purchase and Sale Agreement, executed by both the seller and purchaser, and all exhibits, copies of any real estate purchase agreement or agreements, proposed security agreements and related promissory notes, assignment documents, and any other information that BKC may request in order to evaluate the offer. BKC or its designee shall then have the prior option to purchase the interests covered by the offer at the price and upon the same terms of the offer. If the consideration is not money, the purchase price shall be the cash equivalent of the fair market value of the consideration. BKC shall have twenty (2<|eot_id|>
6.190204
6.190204
renewal date Application number Application date Registration date Class FINTEPLA Japan Registered 6105099 12/7/2028 2018028557 3/9/2018 12/7/2018 5 (Fintepla Logo) Japan Registered 6093116 10/26/2028 2018028558 3/9/2018 10/26/2018 5 US-DOCS\105216871.19 Source: ZOGENIX, INC., 10-Q, 5/9/2019 Exhibit 10.2(b) FORM OF COMPLIANCE CERTIFICATION Date: __________ To: Zogenix, Inc. and its Affiliates ("Zogenix") Re: Distributorship Agreement dated [ ] ("the Agreement") For and on behalf of [__________________] and our Affiliates (as defined in the Agreement) and employees, we confirm that in respect of our distribution of Zogenix Product within the Territory during the period [insert date] to [insert date]:- there was no offer, or promise to make, authorize or provide (directly or indirectly) a gift, payment or anything of value to a government official, political parties or candidates or private sector employee, in order to influence or reward any action or decision by such person in his or her official or professional capacity, for the purpose of corruptly obtaining or retaining business or securing any improper advantage; all payments, expenses or credits properly paid to or incurred on behalf of Zogenix, were accurately and appropriately recorded and described in accordance with acceptable accounting and recordkeeping procedures, and substantiated by supporting documents and evidence; there were no unauthorized and/or excessive payments of any kind to health care institutions, hospitals, hospital services or departments; and has performed the necessary due diligence to ensure compliance with Applicable Laws (including anti-bribery laws and the U.S. FCPA) and the terms of the Agreement. Please be advised accordingly. Yours faithfully, [____________________] Authorized Representative Name: Title: Signature: Date: US-DOCS\105216871.19 Source: ZOGENIX, INC., 10-Q, 5/9/2019<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>be manufactured and tested in accordance with all Applicable Laws, including GMP applicable to the manufacturing, storage, and shipment of the Product, shall not be adulterated or misbranded within the meaning of the United States Food, Drug and Cosmetic Act, 21 U.S.C. Section 301c et. seq., or other Applicable Laws, and the time of delivery to Distributor will meet the Product specifications. Quality Agreement. The Parties shall work together in good faith to enter into a mutually acceptable quality agreement with respect to the manufacture of the Product prior to shipment of any Product to Distributor. US-DOCS\105216871.19 Source: ZOGENIX, INC., 10-Q, 5/9/2019 Exhibit 4.2(a) THE INITIAL VERSION OF THE REGULATORY PLAN US-DOCS\105216871.19 Source: ZOGENIX, INC., 10-Q, 5/9/2019 Exhibit 8.5(a) PRESS RELEASE US-DOCS\105216871.19 Source: ZOGENIX, INC., 10-Q, 5/9/2019 Exhibit 9.7 ZOGENIX TRADEMARKS Trademark Country Status Registration number Next renewal date Application number Application date Registration date Class (Zogenix Logo) Japan Pending N/A N/A 2019031449 2/28/2019 N/A 5, 42 US-DOCS\105216871.19 Source: ZOGENIX, INC., 10-Q, 5/9/2019 Exhibit 9.8 PRODUCT TRADEMARKS Trademark Country Status Registration number Next<|eot_id|>
8.420844
8.420844
mber and type of Merchant's employees required for the Sale. Agent shall identify any such employees to be used in connection with the Sale (each such employee, a "Retained Employee"). Notwithstanding the foregoing, Merchant's employees shall at all times remain employees of Merchant. Agent's selection and scheduling of Merchant's employees shall at all times comply with all applicable laws and regulations. Merchant and Agent agree that, except to the extent that wages and benefits of Retained Employees constitute Expenses hereunder, nothing contained in this Agreement and none of Agent's actions taken in respect of the Sale shall be deemed to constitute an assumption by Agent of any of Merchant's obligations relating to any of Merchant's employees including, without limitation, Excluded Payroll Benefits, Worker Adjustment Retraining Notification Act ("WARN Act") claims and other termination type claims and obligations, or any other amounts required to be paid by statute or law; nor shall Agent become liable under any employment agreement, collective bargaining agreement, or be deemed a joint or successor employer with respect to such employees. For the avoidance of doubt, Merchant shall be responsible for providing any required notice under the WARN Act with respect to its employees and otherwise comply with the WARN Act with respect to any "plant closing" or "mass layoff' (as defined in the WARN Act) or group termination or similar event affecting the employees, whether before or after the date of this Agreement. Merchant shall not, without the prior consent of Agent, raise the salary or wages or increase the benefits for, or pay any bonuses 23 Case 18-10248- MFW Doc 632-1 Filed 04/18/18 Page 25 of 60 or other extraordinary payments to, any Store or Distribution Center employees prior to the Sale Termination Date. Merchant shall not transfer any employee in anticipation of the Sale nor any Retained Employee during the Sale Term, in each case without Agent's prior consent. To the extent reasonably requested by Agent, and at Agent's expense, Merchant shall use commercially reasonable efforts to hire additional temporary employees to facilitate the GOB Sale, which employees shall constitute Retained Employees for purposes of this Agreement. 9.2 Termination of Employees. Agent may in its discretion stop using any Retained Employee at any time during the Sale, subject to the conditions provided for herein. In the event that Agent desires to cease using any Retained Employee, Agent shall notify Merchant at least seven (7) days prior thereto; provided, however, that, in the event that Agent determines to cease using an employee "for cause" (such as dishonesty, fraud or breach of employee duties), the seven (7) day notice period shall not apply; provided, further, however, that Agent shall immediately notify Merchant of the basis for such "cause." From and after the date of this Agreement and until the Sale Termination Date, Merchant shall not transfer or dismiss employees of the Stores or Distribution Centers except "for cause" without Agent's prior consent. Notwithstanding the foregoing, Agent shall not have the right to terminate the actual employment of any employee, but rather may only cease using such employee in the Sale and paying any Expenses with respect to such employee (and all decisions relating to the termination or non-termination of such employees shall at all times rest solely with Merchant). 9.3 Payroll Matters. During the Sale Term, Merchant shall process the payroll for all Retained Employees and any former employees and temporary labor engaged for the Sale. Each Wednesday (or such other date as may be reasonably requested by Merchant to permit the funding of the payroll accounts before such payroll is due and payable) during the Sale Term, Agent shall transfer to Merchant's payroll accounts an amount equal to the base payroll for Retained Employees plus related payroll taxes, workers' compensation and benefits for such week, to the extent such amount constitutes Expenses hereunder. 9.4 Employee Retention Bonuses. Subject to approval by the Bankruptcy Court, Agent may pay, as an Expense, retention bonuses and/or severance pay ("Retention Bonuses") (which bonuses shall be inclusive of payroll taxes, but as to which no benefits shall be payable), up to a maximum of $7,400,000 in the aggregate, to such Retained Employees who do not voluntarily leave employment, are not otherwise entitled to receive severance pay, and are not terminated "for cause," as Agent may determine in its discretion. Subject to approval by the Bankruptcy Court, the amount of such Retention Bonuses shall be in an amount to be determined by Agent, in its discretion, and shall be payable within thirty (30) days after the Sale Termination Date, and shall be processed through Merchant's payroll system. Section 10. Conditions Precedent and Subsequent. (a) The willingness of Purchaser to enter into the transactions contemplated under this Agreement, and the occurrence of the Closing, are directly conditioned upon the satisfaction of the following conditions at the time or during the time periods indicated, unless specifically waived in writing by Purchaser in its sole discretion: 24 Case 18-10248- MFW Doc 632-1 Filed 04/18/18 Page 26 of 60 (i) Entry of the Approval Order shall have occurred no later than April 18, 2018; (ii) All representations and warranties of Merchant hereunder shall be true and correct in all material respects as of the Closing, and Merchant shall have in all material respects performed the obligations and complied with the covenants required by this Agreement to be performed or complied with by it prior to the Closing; and (iii) All of the Parties shall have executed this Agreement. (b) The willingness of Merchant to enter into the transactions contemplated under this Agreement, and the occurrence of the Closing, are directly conditioned upon the satisfaction of the following conditions at the time or during the time periods indicated, unless specifically waived in writing by Merchant: (i) The Bankruptcy Court shall have entered the Approval Order no later than April 18, 2018; (ii) All representations and warranties of Purchaser hereunder shall be true and correct in all material respects as of the Closing, and Purchaser shall have in all material respects performed the obligations and complied with the covenants required by this Agreement to be performed or complied with by it prior to the Closing; and (iii) All of the Parties shall have executed this Agreement. Section 11. Representations, Warranties and Covenants. 11.1 Merchant's Representations, Warranties and Covenants. Merchant hereby represents, warrants and covenants in favor of Purchaser as follows: (a) As of the date of this Agreement and at the Closing, Merchant (i) is duly organized, validly existing and in good standing under the laws of State of Delaware; (ii) has all requisite corporate power and authority to own, lease and operate the Assets and to carry on its business as presently conducted; (iii) is, and during the Sale Term will continue to be, duly authorized and qualified to do business and in good standing in each jurisdiction whe<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>rs. (c) Any transactions relating to the Additional Agent Merchandise are, and shall be construed as, a true consignment from Agent to Merchant. Merchant acknowledges, and the Approval Order (as and when applicable) shall provide, that the Additional Agent Merchandise shall be consigned to Merchant as a true consignment under Article 9 of the Uniform Commercial Code in effect in the State of Delaware (the "UCC"). Agent is hereby, and shall be through the Approval Order, granted a first priority security interest in (i) the Additional Agent Merchandise and (ii) the Additional Agent Merchandise Proceeds, which security interest shall be deemed perfected pursuant to the Approval Order without the requirement of filing UCC financing statements or providing notifications to any prior secured parties (provided that Agent is hereby authorized to deliver any notices and file any financing statements and amendments thereof under the applicable UCC identifying Agent's interest in the Additional Agent Merchandise and any proceeds from the sale thereof as consigned goods thereunder and Merchant as the consignee therefor, and Agent's security interest in such Additional Agent Merchandise and Additional Agent Merchandise proceeds. (d) Agent shall provide signage in the Stores notifying customers that the Additional Agent Merchandise has been included in the Sale. 8.10 E-Commerce Platform. Subject to the Wind-Down Budget and payment of Expenses, Agent shall use the E-Commerce Platform in connection with the GOB Sale to fulfill customer orders made during the GOB Sale Term and otherwise promote the GOB Sale (in Agent's capacity as Agent hereunder), provided that Agent shall have the option, in its sole discretion, to terminate the use of the E-Commerce Platform at any time after four weeks of use. During the use of the E-Commerce Platform, and consistent with the Wind-Down Budget (i) Merchant shall continue to provide for the operation and maintenance of the E-Commerce Platform, including information technology and E-Commerce Platform updates, and provide Agent with all assistance with respect to the functionality of the E-Commerce Platform, fulfillment of orders, and promotion of the GOB Sale and (ii) Agent shall pay as an Expense those amounts reflected in Section 4.1(p) through and including the date that is seven (7) days after Agent provides Merchant with notice of Agent's intention to discontinue using the E-Commerce Platform as a sales platform to fulfill customer orders (the "LDOB Date"); provided, however, that, if Agent continues the Sale at the Stores after the LDOB Date, Merchant shall, as a Central Service and at no cost or expense to Agent (other than as provided in the Wind-Down Budget), maintain the E-Commerce Platform with limited functionality for the limited purposes 22 Case 18-10248- MFW Doc 632-1 Filed 04/18/18 Page 24 of 60 of advertising and promoting the Sale at the Stores, periodically updating such advertising and promotions, and maintaining and updating the Store locator function at no cost or expense to Agent. With respect to the E-Commerce Platform, (i) Agent shall be authorized to sell Additional Agent Goods through the E- Commerce Platform and (ii) the Parties may implement such other processes, procedures, and agreements as may be necessary or appropriate for the efficient and continued operation of the E-Commerce Platform. In the event Agent elects to discontinue using the E-Commerce Platform as a sales platform to fulfill customer orders, Merchant agrees that neither Merchant nor any other person or entity shall complete any sale of goods for Merchant's or any other person's or entity's account utilizing the E-Commerce Platform during the GOB Sale Term, Merchant shall otherwise comply with Merchant's obligations under this Agreement in respect of the E-Commerce Platform, and Merchant shall, as a Central Service and at no cost or expense to Agent (other than as provided in the Wind-Down Budget), maintain the E-Commerce Platform with limited functionality for the limited purposes of advertising and promoting the GOB Sale at the Stores, periodically updating such advertising and promotions, and maintaining and updating the Store locator function. As part of the Allocation Schedule, Merchant and Agent shall mutually agree upon an allocation of certain On-line Merchandise to be promptly delivered to the Stores and not sold through the E-Commerce Platform (the "Designated On-line Merchandise"). In the event Agent ceases using the E-Commerce Platform as a sales platform prior to the Sale Termination Date, Merchant shall be responsible for processing and ticketing all Merchandise not sold through the E-Commerce Platform for sale in the Stores and delivering any remaining On-line Merchandise (the "Remaining On-line Merchandise") to the Stores according to a mutually agreed upon allocation schedule. Section 9. Employee Matters. 9.1 Merchant's Employees. Subject to the Wind-Down Budget and payment of Expenses, Agent may use Merchant's employees in the conduct of the Sale to the extent Agent deems necessary for the Sale, and Agent may select and schedule the nu<|eot_id|>
4.557532
4.557532
ablished pursuant to this Section 10.12 shall be final and binding upon the Parties, and enforceable in any court of competent jurisdiction. The Parties shall use their best efforts to effect the prompt execution of any such award and shall render whatever assistance as may be necessary to this end. The prevailing Party (as determined by the arbitrators) shall be entitled to reimbursement of its costs and expenses, including reasonable attorney's fees, incurred in connection with the arbitration and any judicial enforcement, unless the arbitrators determine that it would be manifestly unfair to honor this agreement of the Parties and determine a different allocation of costs. (d) The foregoing provisions in this Section 10.12 shall not preclude any Party from seeking interim or conservatory remedies, including injunctive relief, from any court having jurisdiction to grant such relief. 10.13. No Presumption. The Parties acknowledge that each has been represented by counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any applicable Law that would require interpretation of any claimed 14 Source: LEJU HOLDINGS LTD, DRS (on F-1), 1/21/2014 ambiguities in this Agreement against the Party that drafted it has no application and is expressly waived. If any claim is made by a Party relating to any conflict, omission or ambiguity in the provisions of this Agreement, no presumption or burden of proof or persuasion will be implied because this Agreement was prepared by or at the request of any Party or its counsel. 10.14. Specific Performance. The parties hereto acknowledge and agree that irreparable damage would occur if any of the provisions of this Agreement are not performed in accordance with their specific terms and that any breach of this Agreement could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which a party hereto may be entitled, at law or in equity, it shall be entitled to enforce any provision of this Agreement by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of any of the provisions of this Agreement, without posting any bond or other undertaking. 10.15. Force Majeure. Neither Party shall be liable for failure to perform any of its obligations under this Agreement during any period in which such Party cannot perform due to hacker attack, fire, flood or other natural disaster, war, embargo, riot or the intervention of any Governmental Authority, provided, however, that the Party so delayed immediately notifies the other Party of such delay. In no even<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|> negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated by this Agreement are consummated as originally contemplated to the greatest extent possible. 10.6. Entire Agreement. This Agreement constitutes the entire agreement of the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, with respect to the subject matter hereof and thereto (including the Original Agreement). 10.7. Assignment. This Agreement and any rights or authority granted hereunder shall not be assigned or transferred by either Party, including by operation of law, merger or otherwise, without the express written consent of the other Party, provided that Licensor may assign this Agreement without consent to any of its Affiliates and Licensee may assign this Agreement without consent to SINA Leju or an Affiliate of Licensee that is controlled by SINA Leju. 10.8. Amendment. This Agreement may not be amended or modified except (a) by an instrument in writing signed by, or on behalf of, both Parties or (b) by a waiver in accordance with Section 10.9. 10.9. Waiver. Either Party may (a) extend the time for the performance of any of the obligations or other acts of the other Party, (b) waive any inaccuracies in the representations and warranties of the other Party contained herein or in any document delivered by the other party pursuant hereto or (c) waive compliance with any of the agreements of the other Party or conditions to such Party's obligations contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Party to be bound thereby. No waiver of any representation, warranty, agreement, condition or obligation granted pursuant to this Section 10.9 or otherwise in accordance with this Agreement shall be construed as a waiver of any prior or subsequent breach of such representation, warranty, agreement, condition or obligation or any other representation, warranty, agreement, condition or obligation. The failure of either party hereto to assert any of its rights hereunder shall not constitute a waiver of any of such rights. 13 Source: LEJU HOLDINGS LTD, DRS (on F-1), 1/21/2014 10.10. No Third Party Beneficiaries. Except for the provisions of Article VII relating to indemnified parties, this Agreement shall be binding upon and inure solely to the benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied (including the provisions of Article VII relating to indemnified parties), is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, including any rights of employment for any specified period, under or by reason of this Agreement. 10.11. Governing Law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by, and construed in accordance with, the laws of the People's Republic of China (without regard to its conflicts of laws rules that would mandate the application of the laws of another jurisdiction). 10.12. Dispute Resolution. (a) Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof (each, a "Dispute"), shall to the extent possible be settled through friendly consultation among the Parties hereto. The claiming Party (the "Claimant") shall promptly notify the other Party (the "Respondent") in a dated written notice that a Dispute has arisen and describe the nature of the Dispute. Any Dispute which remains unresolved within sixty (60) days after the date of such written notice shall be submitted to the China International Economic and Trade Arbitration Commission (the "Commission") to be finally settled by arbitration in Beijing, PRC in accordance with the Commission's then effective rules (the "Rules") and this Section 10.12. The language of the arbitration shall be Mandarin Chinese. (b) The arbitration tribunal shall consist of three (3) arbitrators. The Claimant shall appoint one (1) arbitrator, the Respondent shall appoint one (1) arbitrator, and the two (2) arbitrators so appointed shall appoint a third arbitrator. If the Claimant and the Respondent fail to appoint one (1) arbitrator, or the two (2) arbitrators appointed fail to appoint the third arbitrator within the time periods set by the then effective Rules, the relevant appointment shall be made promptly by the Commission. (c) Any award of the arbitration tribunal est<|eot_id|>
6.902873
6.902873
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[***] [***] none [***] [***] 189 Mb 189 Miscanthus [***] [***] [***] under MTA [***] [***] 190 Mb 190 Miscanthus [***] [***] [***] under MTA [***] [***] 191 Mb 191 Miscanthus [***] [***] [***] none [***] [***] [***] 192 Mb 192 Miscanthus [***] [***] [***] none [***] [***] [***] 193 Mb 193 Miscanthus [***] [***] [***] none [***] [***] [***] 194 Mb 194 Miscanthus [***] [***] [***] none [***] [***] [***] 195 Mb 195 Miscanthus [***] [***] [***] none [***] [***] [***] List of Donated Accessions 196 Mb 196 Miscanthus [***] [***] [***] none [***] [***] [***] 197 Mb 197 Miscanthus [***] [***] [***] none [***] [***] [***] 198 Mb 198 Miscanthus [***] [***] [***] none [***] [***] [***] 199 Mb 199 Miscanthus [***] [***] [***] none [***] [***] [***] 200 Mb 200 Miscanthus [***] [***] [***] none [***] [***] [***] 201 Mb 201 Miscanthus [***] [***] [***] none [***] [***] [***] 202 Mb 202 Miscanthus [***] [***] [***] none [***] [***] [***] 203 Mb 203 Miscanthus [***] [***] [***] none [***] [***] [***] 204 Mb 204 Miscanthus [***] [***] [***] none [***] [***] [***] 205 Mb 205 Miscanthus [***] [***] [***] none [***] [***] [***] 206 Mb 206 Miscanthus [***] [***] [***] none [***] [***] [***] 207 Mb 207 Miscanthus [***] [***] [***] none [***] [***] [***] 208 Mb 208 Miscanthus [***] [***] [***] none [***] [***] [***] 209 Mb 209 Miscanthus [***] [***] [***] none [***] [***] [***] 210 Mb 210 Miscanthus [***] [***] [***] none [***] [***] [***] 211 Mb 211 Miscanthus [***] [***] [***] none [***] [***] [***] 212 Mb 212 Miscanthus [***] [***] [***] none [***] [***] [***] 213 Mb 213 Miscanthus [***] [***] [***] none [***] [***] [***] 214 Mb 214 Miscanthus [***] [***] [***] none [***] [***] [***] 215 Mb 215 Miscanthus [***] [***] [***] none [***] [***] [***] 216 Mb 216 Miscanthus [***] [***] [***] none [***] [***] [***] 217 Mb 217 Miscanthus [***] [***] [***] none [***] [***] [***] 218 Mb 218 Miscanthus [***] [***] [***] none [***] [***] [***] 219 Mb 219 Miscanthus [***] [***] [***] none [***] [***] [***] 220 Mb 220 Miscanthus [***] [***] [***] none [***] [***] [***] 221 Mb 221 Miscanthus [***] [***] [***] under MTA [***] [***] [***] 222 Mb 222 Miscanthus [***] [***] [***] under MTA [***] [***] [***] 223 Mb 223 Miscanthus [***] [***] [***] under MTA [***] <|eot_id|>
6.150504
6.150504
to notify Premier, within the time specified herein, of an inability to meet a term of the PO shall constitute acceptance of such PO in its entirety. If Heritage notifies Premier that it or Jasper cannot meet the Due Date, the Parties shall discuss an acceptable alternate date on which production will commence (the "Production Date"). Once a Due Date is accepted or a Production Date is mutually agreed upon, Heritage shall, or shall cause Jasper to, use all commercially reasonable efforts to start production on or before the Due Date (or Production Date, as applicable), but in no case more than [***] earlier or later than the Due Date (or Production Date, as applicable) unless mutually agreed otherwise by Premier. (k) If PREMIER requests that Products be produced at the Heritage Facility, Heritage may either produce such Products at the Herita<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>n of a trial production run that is sufficient in meeting finished product specifications, and an evaluation of the stability and specifications of trial production product within [***] of the trial production run. (b) Heritage and Premier agree that all Products subject to this Agreement, and their current and subsequently modified respective formulas are confidential and proprietary, and the sole property of Premier unless otherwise agreed in writing by both Parties. (c) Minimum Annual Order Volume. During the Term of this Agreement, Premier shall be required to purchase a Minimum Annual Order Volume ("MAOV") of [***] ("Units") for each twelve-month period commencing July 1, 2017, and for the six-month period commencing July 1, 2022 and ending December 31, 2022, Premier will be required to purchase [***] Units (the twelve-month periods and the six month period are each a "Contract Period"). (d) During the Term, Premier shall have the right (but not the obligation) to order from Heritage quantities of Products in excess of [***] and provided Heritage has the capacity and the ability to produce such additional quantities of Products, Heritage agrees to produce such additional quantities per the pricing and terms on Schedule C. (e) [***] (f) [***] (g) Within [***] of each calendar month during the Term, Premier shall provide to Heritage a [***] rolling production forecast which shall set forth Premier's non-binding good faith estimated purchases (each, a "Forecast") for the [***] period commencing on the date thereof (the "Forecast Delivery Date"). Each Forecast shall also designate which Facility shall manufacture the Products set forth in such Forecast (i.e. Heritage's [***] Facility, Jasper's [***] Facility, or some other facility agreed to by the Parties). Heritage shall notify Premier, in writing (or email), within [***] of each Forecast Delivery Date, if Heritage's or Jasper's Facilities will not be able to fulfill Premier's estimated purchases as set out in the [***] of such Forecast. For the avoidance of doubt, the [***] are 2 Source: BELLRING BRANDS, INC., S-1, 9/20/2019 the [***] immediately following the Forecast Delivery Date. If Heritage notifies Premier that it can fulfill Premier's Forecast for this [***] period, or if it fails to notify Premier that it cannot fulfill that portion of the Forecast, Heritage shall be obligated to fulfill, or cause Jasper to fulfill as applicable, if ordered through POs, the full amount of Product set forth for purchase during [***] ("Firm Forecast"). (h) Within the [***] of each calendar month during the Term, Heritage shall provide to Premier a [***] rolling production forecast which shall set forth Heritage's good faith estimated maximum monthly unit volume ("Maximum Volume") for each Facility during such [***] period. Modifications to the Maximum Volume shall be negotiated in good faith and agreed upon by both Parties in writing or email by the [***] of the calendar month. (i) Premier shall provide Heritage with Purchase Orders (or "POs") [***] in advance of the date referred to as the "Due Date" in such POs. The POs, at a minimum, will give the Products and quantities ordered, the Due Date requested, and designate which Facility will manufacture the Products. "Due Date" shall mean the production start date requested by Premier. (j) Within [***] of receipt of a PO, Heritage shall (i) provide to Premier email confirmation of acceptance of the PO, a schedule of production and an estimated production completion date (the "Estimated Completion Date"), or (ii) notify Premier if any term of the PO cannot be met. Heritage's failure <|eot_id|>
8.066872
8.066872
s, (iii) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such Action in the Court of Chancery of the State of Delaware or such other courts, (iv) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such Action in the Court of Chancery of the State of Delaware or such other courts and (v) consents to service of process in the manner provided for notices in Section 16. Nothing in this Agreement will affect the right of any Party to serve process in any other manner permitted by Law. -72- Source: UPJOHN INC, 10-12G, 1/21/2020 (c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OF THE OTHER ANCILLARY AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (INCLUDING THE FINANCING). EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 17.3(C). 17.4 Relationship of the Parties. The relationship hereby established between Customer and Manufacturer is solely that of independent contractors. Manufacturer has no authority to act or make any agreements or representations on behalf of Customer or its Affiliates. This Agreement is not intended to create, and shall not be construed as creating, between Manufacturer and Customer, the relationship of fiduciary, principal and agent, employer and employee, joint venturers, co-partners, or any other such relationship, the existence of which is expressly denied. No employee or agent engaged by Manufacturer shall be, or shall be deemed to be, an employee or agent of Customer and shall not be entitled to any benefits that Customer provides to its own employees. 17.5 Assignment; Binding Effect. (a) Except as otherwise provided in this Section 17.5, neither Party shall assign this Agreement or any rights, benefits or obligations under or relating to this Agreement, in each case whether by operation of law or otherwise, without the other Party's prior written consent (not to be unreasonably withheld, conditioned or delayed). (b) Either Party may assign its rights and obligations under this Agreement to one or more of its Affiliates without the other Party's consent; provided that such Affiliate remains at all times during the Term an Affiliate of such Party; provided, further, that no such assignment shall release such Party from its obligations under this Agreement. -73- Source: UPJOHN INC, 10-12G, 1/21/2020 (c) Customer may, without Manufacturer's consent, assign the rights and obligations of this Agreement (i) on a Product-by-Product basis, to a Third Party in connection with a bona fide transfer, sale or divestiture of all or substantially all of its business to which such Produ<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>those set forth herein for Customer. Except as otherwise provided in Section 3.4, if any financial audit reveals that Manufacturer has overcharged Customer, Manufacturer shall reimburse Customer for such overcharge within thirty (30) days of Manufacturer's receipt of the relevant audit results, and in the event that any such overcharge equals an amount equal to or greater than five percent (5%) of the total amounts invoiced during the period under such audit, then Manufacturer shall promptly reimburse Customer for all reasonable Third Party costs and expenses actually incurred in the conduct of such audit. If any financial audit reveals that Customer has underpaid Manufacturer, Customer shall reimburse Manufacturer for such underpayment within thirty (30) days of Customer's receipt of the relevant audit results. For clarity, if there is a conflict between Section 3.4(a) and this Section 15.2 with respect to the review of a Price increase, Section 3.4(a) shall govern and control. -70- Source: UPJOHN INC, 10-12G, 1/21/2020 16. Notices. All notices or other communications hereunder shall be deemed to have been duly given and made if in writing and (a) when served by personal delivery upon the Party for whom it is intended; (b) one (1) Business Day following the day sent by overnight courier, return receipt requested; (c) when sent by facsimile; provided that the facsimile is promptly confirmed; or (d) when sent by e-mail; provided that a copy of the same notice or other communication sent by e-mail is also sent by overnight courier, return receipt requested, personal delivery, or facsimile as provided herein, on the same day as such e-mail is sent, in each case to the Person at the address, facsimile number or e-mail address set forth below, or such other address, facsimile number or e-mail address as may be designated in writing hereafter, in the same manner, by such Person: If to Customer: [INSERT NAME] [INSERT ADDRESS] ATTENTION: [INSERT NAME/TITLE] EMAIL ADDRESS: [INSERT E-MAIL ADDRESS] with copy (which shall not constitute notice) to: [INSERT NAME] [INSERT ADDRESS] ATTENTION: [INSERT NAME/TITLE] EMAIL ADDRESS: [INSERT E-MAIL ADDRESS] If to Manufacturer: [INSERT NAME] [INSERT ADDRESS] ATTENTION: [INSERT NAME/TITLE] EMAIL ADDRESS: [INSERT E-MAIL ADDRESS] with a copy (which shall not constitute notice) to: [INSERT NAME] [INSERT ADDRESS] ATTENTION: [INSERT NAME/TITLE] EMAIL ADDRESS: [INSERT E-MAIL ADDRESS] Either Party may, by notice to the other Party, change the addresses and names applicable to such Party given above. 17. Miscellaneous. 17.1 Negotiations of Dispute. The dispute resolution procedures set forth in Article VII of the Separation Agreement shall apply mutatis mutandis with respect to any controversy, claim, counterclaim, dispute, difference or misunderstanding arising out of or relating to the interpretation or application of any term or provisions of this Agreement, a Purchase Order or Facility Addendum. Further, the requirement to attempt to resolve a dispute in accordance with this Section 17.1 does not affect a Party's right to terminate this Agreement or a Purchase Order as provided in Section 7 hereof, and neither Party shall be required to follow these procedures prior to terminating this Agreement. -71- Source: UPJOHN INC, 10-12G, 1/21/2020 17.2 Publicity. Manufacturer shall not use the name, trade name, service marks, trademarks, trade dress or logos of Customer (or any of its Affiliates) in publicity releases, advertising or any other publication, nor identify Customer as a customer, without Customer's prior written consent in each instance. Customer shall not use the name, trade name, service marks, trademarks, trade dress or logos of Manufacturer (or any of its Affiliates) in publicity releases, advertising or any other publication, without Manufacturer's prior written consent in each instance. Nothing in this Section 17.2 shall or is intended to limit any Party's rights under the Separation Agreement or any Ancillary Agreement. 17.3 Governing Law and Venue. (a) This Agreement and all Actions (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance hereof or thereof shall be governed by and construed in accordance with the Law of the State of Delaware, without regard to any Laws or principles thereof that would result in the application of the Laws of any other jurisdiction. The Parties expressly waive any right they may have, now or in the future, to demand or seek the application of a governing Law other than the Law of the State of Delaware. (b) Each of the Parties hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware or, if such court shall not have jurisdiction, the United States District Court for the District of Delaware, and any appellate court from any appeal thereof, in any Action arising out of or relating to this Agreement or the transactions contemplated hereby, and each of the Parties hereby irrevocably and unconditionally (i) agrees not to commence any such Action except in such courts, (ii) agrees that any claim in respect of any such Action may be heard and determined in the Court of Chancery of the State of Delaware or, to the extent permitted by Law, in such other court<|eot_id|>
9.68746
9.68746
fter reclamation of its capacity. 24. WAIVER The failure of any Party, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder shall not thereafter be 34 construed as a waiver of any breach or default, or as a waiver of any such provision, right, or privilege hereunder. 25. COMPLIANCE WITH LAW In the performance of their obligations hereunder, the Parties agree to comply with all applicable laws of all Countries having jurisdiction over the activities performed under or stipulated by this Agreement. 26. RATIFICATION OF DECISIONS AND ACTIONS Each Party to this Agreement does hereby unconditionally ratify and accept as binding on it, its successors, permitted assigns or trustees all decisions and actions theretofore taken directly or indirectly by any other Party or Parties or any committee or Subcommittee or group pursuant to and in accordance with this Agreement. 27. RESOLUTION OF DISPUTES 27.1 If a dispute should arise under this Agreement between or among the Parties they shall make every reasonable effort to resolve such dispute. However, in the event that they are unable to resolve such dispute, the matter shall be referred to the Management Committee which shall either resolve the matter or determine the method, such as arbitration, by which the matter should be resolved. This procedure shall be the sole and exclusive remedy for any dispute which may arise under this Agreement between or among the Parties. The performance of this Agreement by the Parties shall continue during the resolution of any dispute. 27.2 If any difference shall arise between or among the Parties or any of them in respect of the interpretation or effect of this Agreement or any part or provision thereof or their rights and obligations thereunder, and by reasons thereof there shall arise the need to decide the question by what municipal or national law this Agreement or any part or provision thereof is governed, the following facts shall be excluded from consideration, namely that this Agreement was made in a particular country and that it may appear by reason of its form, style, language or otherwise to have been drawn preponderantly with reference to a particular system of municipal or national law; the intention of the Parties being that such facts shall be regarded by the Parties and in all courts and tribunals wherever situated as irrelevant to the question aforesaid and to the decision thereof. 28. SUPPLEMENTS AND AMENDMENTS TO THIS AGREEMENT 28.1 This Agreement shall not be amended, supplemented, or modified unless the Parties representing at least ninety percent (90%) of the voting interests specified in Schedule B 35 have indicated their approval in writing. The Chairman of the Management Committee must provide advance written notice, of at least thirty (30) days, to all Parties of the proposed amendment, supplement or modification and shall notify all Parties in writing once the required level of approval has been obtained and at least ten (10) days prior to execution of the amendatory or supplementary agreement 28.2 Each Party except SingTel and PLDT authorizes the Chairman of the Management Committee to execute on its behalf any amendatory or supplementary agreement implementing an amendment, supplement or modification approved under Subparagraph 28.1. SingTel and PLDT shall provide the Power of Attorney to the Chairman of the Management Committee to execute on its behalf any amendatory or supplementary agreement implementing an amendment, supplement or modification approved under Subparagraph 28.1 in a timely manner. 28.3 Subparagraphs 28.1 and 28.2 shall not apply to any Schedule or Annex modified in accordance with other provisions of this Agreement, and any Schedule or Annex so modified shall be deemed to be part of this Agreement in substitution for the immediately preceding version of that Schedule or Annex. 29. EXECUTION OF AGREEMENT 29.1 This Agreement and any Supplements and Amendments hereto shall be executed in one (1) original in the English language. Identical counterparts may be executed and when so executed shall be considered as an original. Such counterparts shall together, as well as separately constitute one and the same instrument. 29.2 The NA shall be the custodian of the original and will provide certified copies to Parties to this Agreement. 30. SUCCESSORS BOUND This Agreement shall be binding on the Parties, their successors, and permitted assigns. 31. CONFIDENTIALITY 31.1 All data and information that is acquired or received by any Party in connection with the APCN 2 in anticipation of or under this Agreement shall be held confidential and shall not be divulged in any way to any third party, without the prior approval of the Management Committee. 31.2 Notwithstanding Subparagraph 31.1, any Party may, without such approval, disclose such data and information to: 36 (i) the extent required by any applicable laws, or the requirements of any recognized stock exchange in compliance with its rules and regulations or in the case of a Party wholly owned by a sovereign government, by the rules of governance of the Party; or (ii) any government agency lawfully requesting such information; or (iii) any Court of competent jurisdiction acting in pursuance of its powers. 31.3 Any Party may disclose such data and information to such persons as may be necessary in connection with the conduct of the operations of the APCN 2 upon obtaining a similar undertaking of confidentiality from such persons to whom such information may be disclosed. 31.4 Each Party shall remain bound by the provisions of this Paragraph 31 during the period of this Agreement and for the period of five (5) years following termination of this Agreement. 32. SETTLEMENT OF CLAIMS BY PARTIES 32.1 If any Party is obliged by a final judgment of a competent tribunal or under a settlement approved by the Management Committee, to discharge any claim by a third party, including all costs and expenses associated therewith, resulting from the implementation of this Agreement, the Party which has discharged the claim shall be entitled to receive from the other Parties reimbursement in the proportions as set out in Schedule B. 32.2 If any claim is brought against a Party in connection with the APCN 2, the Party shall, as a condition of reimbursement under Subparagraph 32.1, give written notice thereof to the Management Committee as soon as practicable and shall not admit liability nor settle, adjust or compromise the claim without the approval of the Management Committee. 32.3 Before any Party brings a claim against any third party in respect of loss or damage to any part of the APCN 2, it shall first consult with the Management Committee and shall not settle, adjust, or compromise such a claim without the approval of the Management Committee. 32.4 Notwithstanding Subparagraphs 32.2 and 32.3, if the Management Committee issues any directions to a Party relating to the conduct of any such claim, then that Party must comply with those directions. 32.5 Costs, expenses, damages, or compensation payable to the Parties on account of claims made against third parties shall be shared by the Parties in the proportions as set out in Schedule B. 37 32.6 Upon termination of this Agreement pursuant to Paragraph l8, the Parties shall not be relieved from any liabilities, costs, damages or obligations which may arise in connection with claims made by third parties with respect to the APCN 2, or any part thereof, or which may arise in relation to the APCN 2 due to any law, order or regulation made by any government or international convention, treaty or agreement. Any such liabilities, costs, damages or obligations shall be divided among the Parties in the proportions as set out in Schedule B. 33. FORCE MAJEURE If any Party cannot fulfill its obligations in this Agreement due to an event beyond its reasonable control, including, but no<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>pecifically reserves, and is granted by each of the other Parties, in any action, arbitration or other proceeding between or among the Parties or any of them in a country other than that Party's own country, the right of privileges, in accordance with the laws of the country in which the arbitration or litigation takes place with respect to any documents or communications which are material and pertinent to the subject matter of the action, arbitration or proceeding in which privilege could be claimed or asserted by that Party in accordance with those laws. 21. RELATIONSHIP OF PARTIES 21.1 The relationship among the Parties shall not be that of partners, and nothing herein contained shall be deemed to constitute a partnership among them. The common enterprise between and among the Parties shall be limited to the express provisions of this Agreement. The liability of the Parties shall be several and not joint or collective. 21.2 Each Patty agrees to indemnify each of the other Parties in respect of all costs, expenses, damages and demands, arising out of or in connection with any claim against, or liability of, the latter as an owner of APCN 2 where such claim is made by, or the liability is to, any third party not being a Party hereto and arises out of or in connection with APCN 2 provided that no indemnifying Party shall be obligated to contribute more than its share of liability as per Schedule B. Subject to there being no conflict of interest, each Party so indemnifying shall have the right, at its sole cost and expense, to observe but not directly participate in any discussions, meetings or conferences held prior to or during any settlement or legal proceedings resulting from any such claim or liability. 21.3 Under no circumstances shall any Party be liable to any other Party in contract, tort, (including negligence or breach of statutory duty) or otherwise for loss (whether direct or indirect) of profits, property, traffic, business or anticipated savings, or for any indirect or consequential loss or damage in connection with the operation of this Agreement howsoever caused. Such causes shall include (but not be limited to): (i) any delay in the provision of the APCN 2; (ii) any damage to, breakdown in or failure of the APCN 2; and (iii) any interruption of service, 32 whatever may be the reason or duration for such loss, damage or delay and for however long it shall continue. 22. ASSIGNMENT OF RIGHTS AND OBLIGATIONS 22.1 Except as otherwise provided in Paragraph 12 and Subparagraphs 22.2, 22.3, 22.4 and 22.5, during the term of this Agreement, no Party may assign, sell, transfer or dispose of the whole or any parts of its rights or obligations under this Agreement 22.2 A Party may at any time, with the prior written consent of the Management Committee, assign, sell or transfer the whole of its rights and obligations under this Agreement. The Management Committee must not unreasonably withhold or delay its approval. 22.3 A Party may at any time assign, sell or transfer the whole of' its rights and obligations under this Agreement to: (a) a successor of that Party; (b) a Parent Company of that Party; (e) a Subsidiary or Affiliate of that Party; and (d) another Subsidiary or Affiliate of that Party's Parent Company. 22.4 A Party (hereafter "Assignor") may assign, sell or transfer a portion of its rights under this Agreement to a Parent Company, its Subsidiary, and/or the Subsidiary of the Party's Parent Company (hereafter "Assignee"). Such partial assignment shall be allowed only once to any such Assignee, and shall not negate any of the obligations of the Assignor. If the Assignor is an Initial Party, then the Initial Party status of the Assignor shall be maintained and the Assignor's voting rights shall be shared with such Assignee. The relevant Schedules to this Agreement shall be revised to reflect each such partial assignment permitted hereunder, showing the Assignee as a Party. No subsequent assignment shall be effected by the Assignee except as provided in Subparagraph 22.3(a). 22.5 Without limiting the applicability of Subparagraph 22.4, a Party may assign its rights, title and interests in any portion of APCN 2 within the territorial limits of any Country (both under the current and any future configuration) to a Subsidiary, Parent Company or a Subsidiary of a Parent Company of that Party only if: a) the Assignee shall own and be responsible for the capital, operations and maintenance costs listed against the Party for that portion of APCN 2 within the territorial limits of any Country (both under the current and future configuration); the Party shall own and be responsible for the capital, operating and maintenance costs listed against the Party for the remainder of APCN 2; and b) the Assignee will have no tights and obligations independent from the rights and obligations of the Party in respect of the assigned portion of the APCN 2 33 The aforementioned provision shall not be used to circumvent the provisions under Paragraph 12. 22.6 A Party exercising its rights under Subparagraphs 22.2, 22.3, 22.4 or 22.5 must give notice in writing to all other Parties in a timely manner. 23. DEFAULT 23.1 If any Party fails to make any payment required by this Agreement on the date when it is due and such default continues for a period of at least one (1) month after the payment due date, the CBP shall notify the billed Party and also the Management Committee in writing of the status of the matter and will request the reclamation of capacity, as provided for in this Paragraph 23, if full payment is not received within two (2) months of such notification. If full payment is not received within such specified period, the Management Committee may reclaim the Capacity in the APCN 2 allocated to the billed Party. 23.2 The Management Committee shall consider any extenuating circumstances not within the specific control of the billed Party in determining whether or not to reclaim the capacity assigned to such billed Party. If the Management Committee nevertheless reclaims any capacity in the APCN 2 assigned to such defaulting Party, the defaulting Party shall not be entitled to any payment or credit for the reclaimed capacity. The Management Committee shall determine arrangements for disposition of any reclaimed capacity. All rights of a defaulting Party under this Agreement shall terminate as of the time all its capacity in the APCN 2 is reclaimed by the Management Committee; and concurrent with such reclamation of capacity, the defaulting Party will no longer be deemed to be a Party to this Agreement. Such reclamation shall not relieve the defaulting Party from its obligations under this Agreement, including but not limited to the payment of its unpaid accounts, which have been incurred prior to the actual reclamation. The defaulting Party is not entitled to any reimbursement of any amounts it had paid under this Agreement. In such circumstances, the Schedules shall be revised to reflect the default of a Party and the reallocation of interests pursuant to the arrangements determined by the Management Committee. 23.3 Notwithstanding Subparagraph 23.2, reclamation of a Terminal Party's capacity will not release the Terminal Party from providing, operating and maintaining its respective Terminal Station until a reasonable agreement is negotiated in order to ensure the continuous operation of the said Terminal Party's Terminal Station a<|eot_id|>
7.806306
7.806306
ther enactments and industry standards, including, but not limited to, those relating to product safety. 4 Source: ECO SCIENCE SOLUTIONS, INC., 8-K, 11/17/2017 13. Indemnity. ESSI shall be solely responsible for all liability arising out of production, distribution and sale of its product(s). ESSI hereby agrees to indemnify, defend and hold harmless Talent, his agents, representatives and employees (referred to collectively as "Talent Indemnities") from and against any and all claims, actions, causes of action, damages, injuries, expenses, liabilities (joint and several), penalties fines, attorney fees, court costs, and any other expenses incurred by Talent Indemnities arising out of (1) breach by ESSI of any of the terms, representations or warranties made by ESSI in this Agreement; or (2) ESSI product liability or trademark patent or other proprietary right infringement; or (3) errors, omissions, fraudulent or negligent acts by ESSI, its employees, agents or subcontractors in conne<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>s ground transportation, hotel accommodations, and meals for Talent; and 2 Source: ECO SCIENCE SOLUTIONS, INC., 8-K, 11/17/2017 B. First-class airfare, ground transportation and hotel accommodations for one (1) representative. 7. Union Dues and Fees. Talent represents that the services hereunder shall not be subject to SAG, AFTRA or any other entertainment guild contract of which Talent is now, has been, or will be in the future, bound to and that this Agreement is not in conflict with any contract Talent is bound. 8. Exclusivity. Talent represents and warrants that during the Term and in the Territories, Talent will not endorse or make any appearances or advertisements on behalf of any other product which is directly competitive to ESSI's products. 9.Review, Approval, and Ownership of Commercial Placements. All ESSI uses of Talent Attributes in connection with the Commercial Placements and/or press releases shall be subject to the prior written approval of Talent. Said written approval must be given within five (5) business days of Talent's receipt or said usage shall be deemed unapproved. Any such usage featuring Talent in the Commercial Placements and/or press releases shall be and remain the property of ESSI; however, ESSI shall have the right to use said Commercial Placements and/or press releases solely as outlined in Paragraph 3 and only during the Term. Talent may use said materials in whole or in part solely for the purpose of presenting Talent's work in Talent's personal portfolio, website or otherwise and/or on Talent's agent's website. Such usage may not be sold or transferred. 9.1 Press Releases. Talent may not, at any time, individually, or through his agent, manager, family, friends, or associates publish a press release relative to ESSI without first obtaining the written consent and approval of ESSI's management and counsel. In the event Talent does publish any such press release, this Agreement shall be null and void and any outstanding balance owed to Talent shall be voided and the 1,000,000 Shares of ESSI common stock issued to Talent returned to the Company. 10. Termination for Cause A. ESSI shall have the right to terminate this Agreement upon ten (10) days prior written notice to Talent in the event Talent fails to perform the duties set forth in Paragraph 4 hereof or breaches any other covenant or agreement set forth herein and fails to cure same (if curable) within seven (7) days of receipt of written notice. Such termination shall relieve ESSI of its obligation to provide any further consideration pursuant to this Agreement. B. Talent shall have the right to terminate this Agreement upon ten (10) days prior written notice to ESSI in the event of the occurrence of any of the following: (1) ESSI adjudicates as insolvent or declares bankruptcy; or (2) ESSI fails to provide consideration due pursuant to this Agreement, within ten (10) days following the date such consideration is due hereunder, provided that ESSI is notified in writing of such non-payment by Talent and such payment by ESSI is not made within three (3) days following such notification; or (3) ESSI breaches any representation, warranty, covenant or agreement set forth herein and fails to cure same (if curable) within seven (7) days of receipt of written notice. Furthermore, ESSI agrees that such termination shall not relieve it of its obligation to provide consideration as contemplated hereunder. Talent shall not have waived any of its rights at law or in equity by exercising any provision of this paragraph. C. ESSI's rights to the use of Talent and Talent's Attributes as set forth in Paragraphs 3 and 4 shall end immediately should this Agreement be terminated pursuant to Paragraph 10(A) or Paragraph 10(B) above. 10. Notices. All notices provided for herein shall be given in writing by hand delivery, courier service, or by certified mail return receipt requested to the addresses of the parties set forth as follows (unless change of address by notice to the other party is given as provided in this paragraph 10): 3 Source: ECO SCIENCE SOLUTIONS, INC., 8-K, 11/17/2017 If to Talent: Mr. Stephen Marley 16115 SW 117t h Ave Suite 21-A Miami, Florida 33177 If to ESSI: Mr. Jeffery Taylor, President 1135 Makawao Avenue, Suite 103-188 Makawao, Hawaii 96768 with a copy to: Sharon Mitchell, Corporate Counsel for ESSI Sharon D. Mitchell SD Mitchell & Associates, PLC 829 Harcourt Rd. Grosse Pointe Park, Michigan 48230 11. Licensing. Nothing contained herein shall be construed to convey to ESSI any right to use the names, trademarks, service marks, symbols, logos, emblems colors, etc. ("Marks"), of the Bob Marley Family Foundation, or any other organization with which the Talent is or has been associated. All rights to the use of such Marks must be acquired from the appropriate rights holder, and if such Marks are used by ESSI then, in such event ESSI (a) shall provide Talent in advance with satisfactory evidence of ESSI's right to use such Marks and (b) agree to indemnify, protect and hold Talent harmless from and against any and all claims, damages and/or losses which may arise from ESSI's use of such Marks. 12. Representations and Warranties of ESSI. Talent relies upon ESSI's skill and judgment and also upon the following representations of ESSI which shall be in effect throughout the term of this Agreement: A. ESSI's products are, and will remain, merchantable and fit for the purpose for which they are intended, and B. ESSI's products do, and will, conform at all times to all applicable federal, state and local laws, rules, regulations, ordinances, and o<|eot_id|>
5.141849
5.141849
T TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. 23 EXHIBIT D MASS MARKET CHANNELS [***] CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. 24<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>ns of any successor law and any regulations and rules promulgated pursuant to such law or such successor law; and (c) all terms of an accounting or financial nature shall be construed in accordance with generally accepted accounting principles, as in effect in the United States from time to time. 11.10 Counterparts. This Agreement may be executed by the Parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original and all of which counterparts taken together shall constitute but one and the same instrument. * * * Signature Page Follows * * * CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. 19 IN WITNESS WHEREOF, the Parties have caused this this Agreement to be executed by their respective duly authorized representatives as of the day and year first above written. CAPSUGEL US, LLC By: /s/ Amit Patel Name: Amit Patel Title: President, Dosage Form Solutions CARDAX, INC. By: /s/ David G. Watumull Name: David G. Watumull Title: President and CEO CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. 20 EXHIBIT A DEVELOPMENT PLAN [***] CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. 21 EXHIBIT B SPECIFICATIONS As provided in Section 1.26, to be provided upon conclusion of the Development Plan CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. 22 EXHIBIT C [***] CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUAN<|eot_id|>
6.822091
6.822091
addendum to the disclosure document. FDD Exhibit H-15 AMENDMENT TO GOOSEHEAD INSURANCE AGENCY, LLC FRANCHISE AGREEMENT FOR THE STATE OF MINNESOTA In recognition of the requirements of the Minnesota Franchises Law, Minn. Stat. §§ 80C.01 through 80C.22, and of the Rules and Regulations promulgated thereunder by the Minnesota Commissioner of Commerce, Minn. Rules §§ 2860.0100 through 2860.9930, the parties to the attached Goosehead Insurance Agency, LLC Franchise Agreement (the "Agreement") agree as follows: 1. Section 2.2.7 of the Agreement, under the heading "Term and Renewal," shall be deleted in its entirety and shall have no force or effect, and the following paragraph shall be inserted in its place: 2.2.7 You agree to sign and deliver to us a release, in a form that we will provide (which will be a mutual release with limited exclusions), which will release all claims against us and our affiliates, and our respective officers, directors, members, managers, agents, and employees. If you are an entity, then your affiliates and your direct and indirect owners (and any other parties that we reasonably request) must also sign and deliver that release to us, excluding only such claims as Franchisee may have that have arisen under the Minnesota Franchises Law and the Rules and Regulations promulgated thereunder by the Minnesota Commissioner of Commerce. 2. Section 2 of the Agreement, under the heading "Term and Renewal," shall be amended by the addition of the following paragraph: Minnesota law provides franchisees with certain non-renewal rights. In sum, Minn. Stat. § 80C.14 (subd. 4) currently requires, except in certain specified cases, that a franchisee be given 180 days' notice of non-renewal of the Franchise Agreement. 3. Section 9 of the Agreement, under the heading "Proprietary Marks," shall be amended by the addition of the following paragraph: Pursuant to Minnesota Stat. Sec. 80C.12, Subd. 1(g), Franchisor is required to protect any rights Franchise may have to Franchisor's Marks. 4. Section 16.5.1 of the Agreement, under the heading "Transfer of Interest," shall be deleted in its entirety and shall have no force or effect, and the following paragraph shall be inserted in its place: 16.5.1 The transferor must have executed a general release, in a form satisfactory to us, of any and all claims against us and our affiliates, successors, and assigns, and their respective officers, directors, members, managers, shareholders, partners, agents, representatives, servants, and employees in their corporate and individual capacities including, without limitation, claims arising under this Agreement, any other agreement between you and us, and/or <|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>QUIPMENT, INVENTORY, TRAINING, OR OTHER ITEMS INCLUDED IN THE FRANCHISE OFFERING ARE FULFILLED. AT THE OPTION OF THE FRANCHISOR, A SURETY BOND MAY BE PROVIDED IN PLACE OF ESCROW. * * * * THE NAME AND ADDRESS OF THE FRANCHISOR'S AGENT IN THIS STATE AUTHORIZED TO RECEIVE SERVICE OF PROCESS IS: MICHIGAN DEPARTMENT OF COMMERCE, CORPORATION AND SECURITIES BUREAU, 6546 MERCANTILE WAY, P.O. BOX 30222, LANSING, MICHIGAN 48910. * * * * ANY QUESTIONS REGARDING THIS NOTICE SHOULD BE DIRECTED TO: DEPARTMENT OF THE ATTORNEY GENERAL'S OFFICE CONSUMER PROTECTION DIVISION ATTN: FRANCHISE 670 G. MENNEN WILLIAMS BUILDING 525 WEST LANSING LANSING, MICHIGAN 48913 NOTE: NOTWITHSTANDING PARAGRAPH (F) ABOVE, WE INTEND TO, AND YOU AGREE THAT WE AND YOU WILL, ENFORCE FULLY THE PROVISIONS OF THE ARBITRATION SECTION OF OUR AGREEMENTS. WE BELIEVE THAT PARAGRAPH FDD Exhibit H-12 (F) IS UNCONSTITUTIONAL AND CANNOT PRECLUDE US FROM ENFORCING THE ARBITRATION PROVISIONS. FDD Exhibit H-13 ADDENDUM TO GOOSEHEAD INSURANCE AGENCY, LLC FRANCHISE DISCLOSURE DOCUMENT FOR THE STATE OF MINNESOTA In recognition of the requirements of the Minnesota Franchises Law, Minn. Stat. §§ 80C.01 through 80C.22, and of the Rules and Regulations promulgated thereunder by the Minnesota Commissioner of Commerce, Minn. Rules §§ 2860.0100 through 2860.9930, the Franchise Disclosure Document for Goosehead Insurance Agency, LLC for use in the State of Minnesota shall be amended to include the following: 1. Item 13 is amended by the addition of the following language: The franchisor will protect the franchisee's right to use the trademarks, service marks, trade names, logotypes or other commercial symbols or indemnify the franchisee from any loss, costs or expenses arising out of any claim, suite or demand regarding the use of the name. 2. Item 17, "Renewal, Termination, Transfer and Dispute Resolution," shall be amended by the addition of the following paragraphs: With respect to franchisees governed by Minnesota law, we will comply with Minn. Stat. § 80C.14, Subds. 3, 4, and 5 which require, except in certain specified cases, that a franchisee be given 90 days' notice of termination (with 60 days to cure) and 180 days' notice of non-renewal of the Franchise Agreement, and that consent to the transfer of the franchise not be unreasonably withheld. Pursuant to Minn. Rule 2860.4400D, any general release of claims that you or a transferor may have against us or our shareholders, directors, employees and agents, including without limitation claims arising under federal, state, and local laws and regulations shall exclude claims you or a transferor may have under the Minnesota Franchise Law and the Rules and Regulations promulgated thereunder by the Commissioner of Commerce. Minn. Stat. § 80C.21 and Minn. Rule 2860.4400J prohibit us from requiring litigation to be conducted outside Minnesota, requiring waiver of a jury trial, or requiring you to consent to liquidated damages, termination penalties or judgment notes. In addition, nothing in the disclosure document or agreement can abrogate or reduce any of your rights as provided for in Minnesota Statutes, Chapter 80C, or your rights to jury trial, any procedure, forum, or remedies as may be provided for by the laws of the jurisdiction. Minn. Stat. § 80C.17 prohibits any action from being commenced under the Minnesota Franchises Law more than three years after the cause of action accrues. 3. Each provision of this addendum shall be effective only to the extent, with respect to such provision, that the jurisdictional requirements of the Minnesota Franchises Law or the Rules and FDD Exhibit H-14 Regulations promulgated thereunder by the Minnesota Commission of Commerce are met independently without reference to this <|eot_id|>
2.800526
2.800526
COR's compliance with Section 9.1, nothing in this Section shall prevent XENCOR from disclosing the status of development, regulatory approval or commercialization of the Product. 11.5 Notices Any notice required or permitted to be given hereunder by either Party shall be in writing and shall be (i) delivered personally, (ii) sent by registered mail, return receipt requested, postage prepaid or (iii) delivered by facsimile with immediate confirmation of receipt, to the addresses or facsimile numbers set forth below: If to BII: Boehringer Ingelheim International GmbH Binger Straße 17355216 Ingelheim Federal Republic of Germany Attention: Mr. Alois Konrad (Global Dept. Biopharma Contract Manufacturing Business) Fax: 0049- 7351/54 - 4845 Phone: 0049- 7351/54 - 96145 33 If to XENCOR: 111 West Lemon Avenue Monrovia, CA 91016 Attention: Chief Executive Officer Phone: (626) 305-5900 Fax: (626) 305-0350 11.6 Applicable Law and Arbitration This Agreement shall be exclusively governed by and construed in accordance with the laws of the State of New York, USA without regard to its conflict of laws provisions. The application of the UN Convention on Contracts for the International Sale of Goods is excluded. The Parties agree that all disputes, claims or controversies arising out of, relating to, or in connection with this Agreement, including any question regarding its formation, existence, validity, enforceability, performance, interpretation, breach or termination, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce ("ICC") by one arbitrator appointed in accordance with said rules. The exclusive place of arbitration shall be New York State of New Yo<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|> this Section shall prevent the Parties from disclosing this Agreement, if and as far as required by applicable laws, rules or regulations. However, the disclosing Party shall inform the other Party well in advance whenever reasonably possible and shall provide the opportunity to comment on such required disclosure (e.g. under SEC rules). In addition, subject to XEN<|eot_id|>
5.346274
5.346274
in full. "Secured Parties" means the Indenture Trustee, for the benefit of the Noteholders. "Securities Account" means each Bank Account subject to the terms of the Account Control Agreement. "Securities Act" means the Securities Act of 1933, as amended. "Securities Intermediary" means U.S. Bank National Association. "Servicer" means Cellco or any Successor Servicer engaged under Section 7.4 of the Transfer and Servicing Agreement. "Servicer Acquisition Obligation" has the meaning stated in the Parent Support Agreement. "Servicer Deposit Obligation" has the meaning stated in the Parent Support Agreement. "Servicer Representation Obligation" has the meaning stated in the Parent Support Agreement. A-36 Source: VERIZON ABS LLC, 8-K, 1/23/2020 "Servicer Termination Event" has the meaning stated in Section 7.2 of the Transfer and Servicing Agreement. "Servicer's Certificate" means an Officer's Certificate of the Servicer delivered pursuant to Section 6.6 of the Transfer and Servicing Agreement. "Servicing Criteria" means the "servicing criteria" set forth in Item 1122(d) of Regulation AB, as such may be amended from time to time. "Servicing Fee" means, for a Collection Period, the fee payable to the Servicer in an amount equal to the product of: (a) one-twelfth of the Servicing Fee Rate; times (b) the Adjusted Pool Balance at the beginning of the full calendar month immediately preceding such Payment Date; provided, that the Servicing Fee for the initial Payment Date will equal the product of (i) a fraction, the numerator of which is the number of days from and including the Closing Date to and including the last day of the first Collection Period and the denominator of which is 360, and (ii) the Servicing Fee Rate times the Adjusted Pool Balance as of the Closing Date. "Servicing Fee Rate" means 0.75%. "Servicing Procedures" means the servicing procedures of Cellco relating to device payment plan agreements originated by the Originators, as amended or modified from time to time. "Similar Law" means any federal, State, local or non-U.S. law or regulation that is substantially similar to Title I of ERISA or Section 4975 of the Code. "SOFR" with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the Benchmark Administrator for SOFR (or a successor Benchmark Administrator). "Solvent" means, with respect to any Person and as of any particular date, that (i) the present fair market value (or present fair saleable value) of the assets of such Person is not less than the total amount required to pay the probable liabilities of such Person on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured, (ii) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business and (iii) such Person is not incurring debts or liabilities beyond its ability to pay such debts and liabilities as they mature. "Sponsor" means Cellco. A-37 Source: VERIZON ABS LLC, 8-K, 1/23/2020 "State" means a state or commonwealth of the United States of America, or the District of Columbia. "Subcontractor" means any vendor, subcontractor or other Person that is not responsible for the overall servicing (as "servicing" is commonly understood by participants in the asset-backed securities market) of the Receivables but performs one or more discrete functions identified in the Servicing Criteria with respect to the Receivables under the direction or authority of the Servicer or a Subservicer. "Subservicer" means any Person that services Receivables on behalf of the Servicer or any Subservicer and is responsible for the performance (whether directly or through Subservicers or Subcontractors) of a substantial portion of the material servicing functions required to be performed by the Servicer under this Agreement that are identified in the Servicing Criteria. "Successor Servicer" has the meaning stated in Section 7.4(a)(i) of the Transfer and Servicing Agreement. "Supplemental Servicing Fee" means, for a Collection Period, all net Recoveries, late fees, prepayment charges, extension fees and other administrative fees or similar charges on the Receivables. "Temporarily Excluded Receivables" means any Receivable deemed to be temporarily excluded by the Administrator from any calculation required to be made by the Administrator or the Servicer pursuant to and in accordance with the terms of the Transaction Documents. "Temporarily Excluded Receivables Servicing Fee" means, for a Collection Period, the fee payable to the Servicer in an amount equal to the product of: (a) one-twelfth of the Servicing Fee Rate; times (b) the aggregate Principal Balance of all Temporarily Excluded Receivables at the beginning of the calendar month immediately preceding such Collection Period. "Term SOFR" means the forward-looking term rate for the applicable Corresponding Tenor based on SOFR that has been selected or recommended by the Relevant Governmental Body. "Third Priority Principal Payment" means, for a Payment Date, the greater of: (a) an amount (not less than zero) equal to: (i) the aggregate Note Balances of the Class A Notes, the Class B Notes and the Class C Notes as of the immediately preceding Payment Date (or, for the initial Payment Date, as of the Closing Date); minus (ii) the Adjusted Pool Balance; minus A-38 Source: VERIZON ABS LLC, 8-K, 1/23/2020 (iii) the First Priority Principal Payment; minus (iv) the Second Priority Principal Payment; and (b) on and after the Final Maturity Date for the Class C Notes, the Note Balance of the Class C Notes until paid in full. "Total Required Payment" means, (a) for a Payment Date and the Reserve Account Draw Amount, the sum of the amounts set forth in Sections 8.2(c)(i) through (viii) of the Indenture; and (b) for a Payment Date and the Negative Carry Account Draw Amount, the sum of the amounts set forth in Sections 8.2(c)(i) through (xiii) of the Indenture. Following an Event of Default and an acceleration of the Notes or an Insolvency Event or dissolution of the Depositor, until the Note Balances of each Class of Notes have been paid in full, the Total Required Payment will also include the aggregate Note Balances of all Notes. "Transaction Documents" means the Certificate of Trust, the Trust Agreement, the Receivables Transfer Agreements, the Transfer and Servicing Agreement, the Indenture, the Administration Agreement, the Asset Representations Review Agreement, the Parent Support Agreement, the Underwriting Agreement, the Marketing Agent Agency Agreement, the Depository Agreement, the Cap Agreement and the Account Control Agreement. "Transfer and Servicing Agreement" means the Transfer and Servicing Agreement, dated as of the Closing Date, among the Issuer, the Depositor and Cellco as Servicer, Marketing Agent and Custodian, as amended, restated, supplemented or modified from time to time. "Transfer Notice" means the notice to the Issuer, the Depositor and the Indenture Trustee regarding the acquisition of Additional Receivables under Sectio<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|> giving effect to all payments under Section 8.2(c) of the Indenture and the acquisition of Additional Receivables, if any, on the Payment Date), (ii) the weighted average Note Interest Rate and (iii) 1/12. "Required Rating" means, for short-term unsecured debt obligations, a rating of (a) "P-1" from Moody's and (b) "A-1+" from S&P. "Required Reserve Amount" means $17,877,097.97, or approximately 1% of the Adjusted Pool Balance as of the Initial Cutoff Date. "Reserve Account" means the account established under Section 4.1(a) of the Transfer and Servicing Agreement. "Reserve Account Draw Amount" means: (a) for each Payment Date before the Amortization Period, the lesser of: (i) an amount (not less than zero) equal to the Total Required Payment minus the Available Funds determined without regard to the Reserve Account Draw Amount; and (ii) the amount in the Reserve Account; and (b) for each Payment Date during the Amortization Period, an amount equal to the amount in the Reserve Account, if that amount together with Available Funds for that Payment Date is sufficient to pay the entire Note Balance of the Notes, all accrued and unpaid interest and any unpaid Make-Whole Payments and all other amounts to be distributed to the Secured Parties under the Indenture and the Transfer and Servicing Agreement in full. "Reserve Deposit Amount" means, for a Payment Date, an amount equal to (a) the Required Reserve Amount minus (b) the amount in the Reserve Account on the Payment Date (before payments under Section 8.2(c) of the Indenture on that Payment Date). "Residual Interest" means an "eligible horizontal residual interest" (as defined in the U.S. Credit Risk Retention Rules) equal to at least 5% of the fair value of all of the "ABS interests" (as defined in the U.S. Credit Risk Retention Rules) in the Issuer issued as part of the transactions contemplated by the Transaction Documents, determined as of the Closing Date using a fair value measurement framework under United States generally accepted accounting principles. A-34 Source: VERIZON ABS LLC, 8-K, 1/23/2020 "Responsible Person" means: (a) for the Administrator, the Depositor, the Sponsor, the Servicer, the Marketing Agent, the Parent Support Provider or any Originator, a Person designated in an Officer's Certificate of the Person or other notice signed by an officer of the Person authorized to act for the Person or any treasurer, assistant treasurer or corporate secretary of such Person that has responsibility for the matter; (b) for the Issuer, an officer in the Corporate Trust Office of the Owner Trustee, any officer of the Owner Trustee to whom any matter is referred because of the officer's knowledge of and familiarity with the matter, and a Responsible Person of the Administrator; (c) for the Master Trust, an officer in the Corporate Trust Office of the Master Trust Owner Trustee, any officer of the Master Trust Owner Trustee to whom any matter is referred because of the officer's knowledge of and familiarity with the matter, and a Responsible Person of the Master Trust Administrator; and (d) for the Indenture Trustee or the Owner Trustee, an officer in the Corporate Trust Office of the Indenture Trustee or the Owner Trustee, as applicable, including each vice president, assistant vice president, secretary, assistant secretary or other officer customarily performing functions similar to those performed by those officers listed above, and any officer of the Indenture Trustee or the Owner Trustee, as applicable, to whom any matter is referred because of the officer's knowledge of and familiarity with the matter, and in each case, having direct responsibility for the administration of the Transaction Documents. "Review" has the meaning stated in the Asset Representations Review Agreement. "Review Materials" has the meaning stated in the Asset Representations Review Agreement. "Review Notice" has the meaning stated in the Asset Representations Review Agreement. "Review Receivable" has the meaning stated in the Asset Representations Review Agreement. "Review Report" means, for an Asset Representations Review, the report of the Asset Representations Reviewer described in Section 3.5 of the Asset Representations Review Agreement. "Revolving Period" means the period from the Closing Date to the start of the Amortization Period. "S&P" means S&P Global Ratings. A-35 Source: VERIZON ABS LLC, 8-K, 1/23/2020 "Sarbanes Certification" has the meaning stated in Section 6.7(a)(iv) of the Transfer and Servicing Agreement. "Schedule of Receivables" means (a) the schedule identifying the Initial Receivables attached as Schedule A to each Receivables Transfer Agreement and Schedule A to each of the Transfer and Servicing Agreement and the Indenture or the electronic file with respect thereto delivered on the Closing Date, and (b) each schedule identifying any Additional Receivables attached as Schedule A to any Transfer Notice or the electronic file with respect thereto delivered by the Depositor, or the Administrator on its behalf, to the Issuer and the Indenture Trustee for an Acquisition Date. "Second Priority Principal Payment" means, for a Payment Date, the greater of: (a) an amount (not less than zero) equal to: (i) the aggregate Note Balances of the Class A Notes and the Class B Notes as of the immediately preceding Payment Date (or, for the initial Payment Date, as of the Closing Date); minus (ii) the Adjusted Pool Balance; minus (iii) the First Priority Principal Payment; and (b) on and after the Final Maturity Date for the Class B Notes, the Note Balance of the Class B Notes until paid<|eot_id|>
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or to being added. Following the addition of such Professionals to the Depomed Physician List, the Baseline Percentage shall be adjusted to reflect prescriptions written by any such Professionals by adding to the then-current Baseline Percentage the quotient obtained by dividing (x) [***] prior to Depomed's commencement of providing Details to such Professionals, by (y) [***], based on Prescriber Data for such two complete Agreement Quarters. (b) Depomed will submit to the JCC a call plan setting forth the Details to be performed by the Depomed Sales Force. Such call plan may be taken into account in developing the Annual Plan. Any Professional on the Depomed Physician List who does not receive at least [***] Details in each full calendar year following the commencement of Promotion of the Product by the Depomed Sales Force will be excluded from the Depomed Physician List in subsequent calendar years for purposes of calculating Depomed Net Sales, and for purposes of calculating the Baseline Percentage. (c) During any period in which the Depomed Sales Force is making Details, efforts will be made at the local level to coordinate the Details by the Depomed Sales Force with Details by the King Sales Force to ensure the most effective coverage of the target audiences and to minimize non-productive efforts. Depomed will provide the JCC with such information related to Depomed's promotion activities as is reasonably necessary to assist in such efforts. Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company's application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934. 21 (d) All Details made by the Depomed Sales Force will be reported to King. Such reports by Depomed will be made in the same manner as King's Details under Section 4.6 (to the extent Depomed customarily creates such reports for Depomed's other products which are promoted by or on behalf of Depomed). (e) Depomed may purchase from King, [***], copies of any Promotional Materials created by King for use by the Depomed Sales Force. Upon Depomed's request, King will provide to Depomed electronic copies of Promotional Materials created by or for King, which Promotional Materials may be modified for use by Depomed; provided that any modification must be approved in the same manner as approval of Depomed Promotional Materials (as defined below). King [***] for such Promotional Materials. Depomed may also create and develop its own Promotional Materials for use by the Depomed Sales Force ("Depomed Promotional Materials"). Prior to the use thereof, Depomed shall provide to the JCC a prototype of any Depomed Promotional Materials. The JCC may review such prototype for consistency with Legal Requirements and the Product positioning and messaging reflected in the then-current Annual Plan. If the JCC notifies Depomed within 10 business days after receipt of a prototype that is objects to such prototype on the grounds that it is inconsistent with the Product positioning and messaging reflected in the then current Annual Plan, Depomed shall modify such Depomed Promotional Materials to the extent necessary to resolve any objections made by the JCC to such Depomed Promotional Materials on such grounds. In addition, Depomed shall in good faith consider any ot<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company's application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934. 20 of the trademarks of the other party in connection with the Promotion of the Product that are substantially equivalent to those standards used by the owner of such trademarks in connection with pharmaceutical products. Subject to the foregoing and to the other provisions of this Agreement, each party acknowledges and agrees that the owner or licensee of the trademark has the right, at any time, to modify or supplement such quality standards and that the licensee or sublicensee must implement such new standards or changes following receipt of notice of such additions or changes; provided that the licensor agrees to bear all reasonable costs associated with such modifications and supplements. Compliance with this Section 4.8(c) shall be determined pursuant to the Promotional Material and Depomed Promotional Materials review and approval procedures set forth in Sections 4.4(b) and 4.9(e), as applicable. Section 4.9 Promotion by Depomed. (a) At Depomed's option, it may, but is not obligated to, have the Depomed Sales Force Promote the Product directly to Professionals who are (i) not on the King Physician List or (ii) are on the King Physician List but did not receive at least [***] Details in the four most complete Agreement Quarters following the Promotion Commencement Date (or, if Depomed desires to commence Details prior to March 31, 2008, at least [***] Details during the two Agreement Quarters on which the Baseline Percentage is determined). If Depomed desires to use the Depomed Sales Force for this purpose, it will inform King at least 90 days in advance of the commencement of Details by the Depomed Sales Force and provide King with the Depomed Physician List. During such 90-day period, King will be entitled to review the Depomed Physician List and confirm that such list does not contain any Professionals that are not, as of the date of King's receipt of the Depomed Physician List, eligible for inclusion on the Depomed Physician List. Following creation of the initial Depomed Physician List, from time to time but not more than two times per calendar year, Depomed may add Professionals to the Depomed Physician List pursuant to the procedure set forth above, so long as Depomed has conducted at least [***] Details to such Professional during the six-month period immediately pri<|eot_id|>
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ected, what the information will be used for, whether such information will be provided to third parties, and the choices available regarding collection, use and distribution of the collected information. 3. IMNTV OBLIGATIONS. 3.1 Grant of License. During the Term, for the activities described in this Agreement, IMNTV hereby grants Distributor non-exclusive rights and licenses necessary within the Territory to: (a) copy, store digitally, host and stream the Programming; (b) publicly perform, publicly display, electronically transmit, distribute and broadcast the Programming; (c) promote the Programming and use IMNTV Marks for Distributor's promotion of the Programming as activities described in Section 2.4 above; (d) archive the Programming on Distributor's servers; (e) encode, copy, and create continuous Programming excerpts of up to sixty (60) seconds and transmit, publicly perform, distribute, and redistribute such excerpts to end users via the Distributor's Portal for marketing purposes only(f) deep link to the Programming. 3.2 Right of distribution N/A 3.3 Removed N/A 3.4 Programming Obligations. IMNTV will create and maintain it's programming content and will deliver same to Distributor in a format suitable for the distribution over wireless networks in Distributor's Territory on a regular basis. 3.5 Logo Trademarks. Distributor may use IMNTV logos and marks in the marketing of the Product, subject to pre-approved trademark usage policy and Brand Standards. 3.6 Dedicated Personnel. Throughout the Term, IMNTV shall designate at least one (1) staff member to provide Distributor with all reasonably necessary assistance, information and support relating to its obligations herein including, but not limited to, updating and maintaining the Programming. 3.7 Responsibility for Programming. Except as expressly set forth herein, IMNTV is solely responsible for all costs, activities, obligations and liabilities associated with: (a) obtaining all rights and licenses necessary for the authorized use and distribution of the IMNTV Programming as described herein including, but not limited to, all copyright, trademark rights, rights of publicity and rights of privacy, and any broadcast, rebroadcast, or retransmission rights or permissions; and (b) obtaining all necessary permissions and/or release documentation from all persons associated with the distribution of the Programming as described herein, including, without limitation, all performers. 4. ADVERTISING The IMNTV Programming will not contain any advertising, either integrated or before or after each clip, except IMNTV I'Ds and IMNTV commercials for solicitation of Chinese music videos,without the prior written approval of both parties. Source: GLOBAL TECHNOLOGIES GROUP, INC., 10KSB, 9/28/2005 5. OWNERSHIP. 5.1 By IMNTV. As between Distributor and IMNTV, IMNTV owns or has the necessary licenses to all copyright, trademark, patent and other intellectual property rights in and to, and all other right, title and interest in and to the Programming, the Trademarks and the IMNTV Portal. Except as expressly provided herein, IMNTV retains the right to distribute the Programming in any medium now known or hereafter developed. As between IMNTV and Distributor (excluding the Programming and other Provider intellectual property), IMNTV owns all copyright, trademark, patent and other intellectual property rights therein, and all other right, title and interest in and to or associated with the Subscription Products, the IMNTV Sites, the IMNTV Marks, and the System and Subscriber data. 5.3 Trademarks. Each party: (a) will not create a unitary composite mark involving a trademark of the other party without the prior written approval of such other party; (b) will display symbols and notices clearly and sufficiently indicating the trademark status and ownership of the other party's trademarks in accordance with applicable trademark law and practice; (c) acknowledges that its utilization of the other party's trademarks will not create in it, nor will it represent it has, any right, title or interest in or to such trademarks other than the licenses expressly granted herein; (d) agrees not to do anything contesting or impairing the trademark rights of the other party; (e) agrees to promptly notify the other party of any unauthorized use of the other party's trademarks of which it has actual knowledge; and (f) will have the sole right and discretion to bring proceedings alleging infringement of its trademarks or unfair competition rel<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>tributor Portal to the Landing Page. "Subscribers" means, collectively, end users who have completed the Registration Process for any of the Subscription Products described herein. "Subscribers" includes "Recurring Subscribers." "Subscription Products" means, collectively Products and Bundles that include IMNTV content. "IMNTV Mobile Product" means an IMNTV branded subscription product distributed to mobile and wireless devices, which includes services, products and Content from one or a variety of third parties, and includes any derivative, follow-on, repackaged, or substantially similar product offered by Distributor that includes IMNTV Programming. "Bundle Fee" means the fee actually paid by a Subscriber for the Mobile Product Bundle that includes provider content provided in accordance with this Agreement. "IMNTV Mobile Product Fee" means the fee actually paid by a Subscriber for the IMNTV Mobile Product. "Recurring Subscriber" for the purpose of this Agreement so as long as such individual continues to pay the applicable Subscription Fee, so long as IMNTV actually receives such fee. "Territory" means China. Other territories are subject to approval by IMNTV. 2. DISTRIBUTOR OBLIGATIONS. 2.1 Subscription Transactions. Distributor will provide the following services to market, launch and distribute the Programming using its existing infrastructure as follows: (a) Fulfillment. Each individual who purchases a Subscription must complete the Registration Process, where such individual will be prompted to provide certain personally identifiable information including a valid major credit card (e.g. Visa, MasterCard, Discover, American Express) to receive the Programming. Support for additional payment methods and additional credit cards may be developed by Distributor, with IMNTV's prior written approval. (b) Customer Support. Distributor will provide customer support in target Territory in a workmanlike and professional manner. 2.2 Distribution Channels. Distributor and IMNTV may create, sell and market Bundles that include the IMNTV Programming. Distributor may offer the Programming and any Bundles through all wireless distribution channels in target Territory. To enable all Subscribers to have access to the Programming, the Programming may be distributed in whole or in part via Internet Protocol in a manner that enables the Programming to be received and played back by mobile devices in the target Territory. 2.3 Hosting Services. Hosting of on-demand Programming will be provided at no cost to IMNTV in a format acceptable to local Territory wireless devices. Distributor will provide reports of aggregated Subscriber access and usage data concerning the Programming on a monthly basis, together with reports described in Section 6.5, below. 2.4 Promotion of Programming. Distributor may use the Programming and IMNTV's Marks to market, advertise and promote the Programming in the Mobile Software Application(s), the Distributor's Portal, and in other on and off-line marketing efforts as follows: (a) promoting the Programming in directories, listings, and keyword searches; (b) deep linking to the Programming; (c) featuring Programming in various areas within the Distributor's Software and Distributor's Portal, (d) communicating to users via Distributor's consumer marketing channels such as on-line messages, member newsletters or email campaigns; (e) featuring excerpts, screenshots of Programming in marketing collateral and advertisements; (f) featuring the Programming in product demonstrations relating to Distributor's Source: GLOBAL TECHNOLOGIES GROUP, INC., 10KSB, 9/28/2005 software or subscription products at trade shows and conferences; (g) creating collateral for joint promotional efforts between Distributor and third parties; (h) promoting the Programming in television, radio and print media. IMNTV may use Distributor's logos and marks in the marketing of the Product, subject to pre- approved trademark usage policy and Brand Standards to be provided by Distributor to IMNTV. 2.5 Distributor Support and Operational Responsibilities. Distributor will provide all "middleware" programming to facilitate connection of the content delivery platform to local Territory wireless networks. Distributor will perform localization of any software components to make the program possible to use in the local Territory. This is to include language translations or interface design changes. Provider will act as liaison with local Territory wireless carriers. This will include content review to insure content meets local broadcast standards and meets any local regulatory requirements. Distributor also agrees to secure necessary governmental approvals or permits necessary to operate in the Territory and to secure permission to enable distribution of IMNTV's share of Subscription Fees to IMNTV in the United States. Distributor is solely responsible for monitoring, performance and ensuring the availability of the Programming and will notify IMNTV immediately of planned and unplanned Programming delays or outages. 2.6 Privacy. Distributor is responsible for complying with all applicable laws, rules and regulations relating to its collection and use of personal information from users of the Distributor Portal. At a minimum, Distributor must adopt, implement and comply with a Privacy Policy that: (a) is easy to find, read and understand; (b) is prominently posted at the time that any personally identifiable information is collected or requested; and (c) clearly states what information is being coll<|eot_id|>
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eller Party to) expressly condition such assignment or transfer on the express acknowledgement and agreement of the assignee or transferee that all such Licensed IP is bound by the license grants set forth herein. If Purchaser or a Purchaser Assignee assigns or transfers any Intellectual Property licensed to the Seller Parties pursuant to Section 2.1(c) or Section 2.1(d), the Purchaser shall (or shall cause the applicable Purchaser Assignee to) expressly condition such assignment or transfer on the express acknowledgement and agreement of the assignee or transferee that all such Intellectual Property is bound by such license grants. Notwithstanding anything to the contrary contained in this IP Agreement, Article III may only be assigned by a party (and shall be assigned by a party) together with such party's assignment of the Acquisition Agreement in accordance with the terms and conditions thereof. Subject to the foregoing limitations, this IP Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Section 6.3 Effect of Merger or Change of Control. Upon a merger or change of control of a party (including, for purposes of this Section 6.3, with respect to Purchaser any Purchaser Licensee and with respect to Seller any Seller Party) (a "Change of Control Event") with or to a Person (other than a Person that is a then-current Affiliate of such party) (the "Buyer"), the license rights granted under Article II to such party shall not extend to the Buyer or any of its Affiliates existing immediately prior to the Change of Control Event or any of its or their past, current, or future products, systems or services. If as a result of the Change of Control Event such party remains a separate, independent legal entity (or is merged into another Person, where such Person was formed or created for the purpose of the Change of Control Event or where such Person is a then-current Affiliate of such party), then the license rights granted to such party under Article II shall continue in full force and effect. If as a result of the Change of Control Event such party is merged into the Buyer (other than if the Buyer is formed or created for the purpose of the Change of Control Event) or another Person (other than if such Person is formed or created for the purpose of the Change of Control Event or if such Person is a then- 35 current Affiliate of such party) or otherwise does not remain a separate, independent legal entity (except if such party is merged into another Person, where such Person was formed or created <|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>ource Code, trade secrets, or other confidential information of a party or any other member of its Group or any of its Affiliates where the other party can demonstrate such Source Code, trade secrets, or other confidential information (A) is or becomes generally known to the public or enters the public domain, other than as a result of a breach of this IP Agreement by such other party or a member of its Group or its Affiliates, (B) was rightfully disclosed to such other party or a member of its Group or its Affiliates by a third Person provided that such other party or member complies with the restrictions imposed by the third Person, or (C) was developed independently by such other party or member or Affiliate without use of or reference to any information disclosed to any of them by such party. If a party or any of members of its Group or its Affiliates is legally required to disclose any of the other party's Source Code, trade secrets, or other confidential information in connection with any legal proceeding, such party shall promptly notify the other party of the foregoing so that the other party may seek to prevent such disclosure or obtain the entry of a protective order or other appropriate protective device or procedure. The disclosing party shall fully cooperate with and aid such other party in connection with the foregoing. If a protective order or other protective device satisfactory to such other party is not obtained, the disclosing party or its applicable member will disclose only that portion of such Source Code, trade secrets, or other confidential information that is legally required to be disclosed (and will notify the other party of which portions are disclosed). Each party shall take steps reasonable under the circumstances to protect the confidentiality of all Source Code, trade secrets, and other confidential information licensed under this IP Agreement by it or its Affiliates to the other party or a member of its Group or any of its Affiliates. 34 ARTICLE VI GENERAL PROVISIONS Section 6.1 Remedies. The sole and exclusive remedy for any breach of this IP Agreement, including the representations and warranties and covenants herein, shall be as set forth in Article 8 of the Acquisition Agreement. The representations and warranties and covenants contained herein shall terminate in accordance with Section 8.4 of the Acquisition Agreement Section 6.2 Assignment. Neither party may assign (whether by operation of law or otherwise) this IP Agreement, or any of its licenses, rights, privileges or obligations hereunder, without the prior written consent of the other party, and any such attempted assignment shall be void; provided, however, that, following the Initial Closing Date, without any such prior written consent but upon prior written notice to the other party, each party may assign this IP Agreement to: (i) an Affiliate; (ii) a lender for collateral security; (iii) a Person that succeeds to all or substantially all of its business or assets to which this IP Agreement relates in connection with a merger or sale of all or substantially all of its assets to which this IP Agreement relates; or (iv) corporate reorganization of the party in which the ultimate ownership of the party immediately prior to such reorganization is the same as the ultimate ownership of the party immediately after such reorganization. If a Seller Party assigns or transfers any Licensed IP, the Seller shall (or shall cause the applicable S<|eot_id|>
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0 a.m. Eastern Time on the next following Business Day. The Fund will receive all orders to purchase Fund shares using the NSCC's Defined Contribution Clearance & Settlement ("DCC&S") platform. The Fund will also provide the Administrator with account positions and activity data using the NSCC's Networking platform. The Administrator shall pay for Fund shares by the scheduled close of federal funds transmissions on the same Business Day it places an order to purchase Fund shares in accordance with this section using the NSCC's Fund/SERV System. Payment shall be in federal funds transmitted by wire from the Fund's designated Settling Bank to the NSCC. "Business Day" shall any day on which the New York Stock Exchange is open for trading and on which the Fund calculates it net asset value pursuant to the rules of the SEC. "Networking" shall mean the NSCC's product that allows Fund's and Administrator to exchange account level information electronically. "Settling Bank" shall mean the entity appointed by the Fund to perform such settlement services on behalf of the Fund and agrees to abide by the NSCC's Rules and Procedures insofar as they relate to the same day funds settlement. If the Administrator is somehow prohibited from submitting purchase and settlement instructions to the Fund for Fund shares via the NSCC's DCC&S platform the following shall apply to this Section: 2 The Trust agrees to sell the Administrator those shares of the Funds which the Administrator orders on behalf of any Separate Account, executing such orders on a daily basis at the net asset value next computed after receipt and acceptance by the Fund or its agent of such order. For purposes of this Section, the Administrator shall be the agent of the Fund for the receipt of such orde<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|> the net asset value next computed after receipt and acceptance by the Fund or its designee of such order. Receipt by such designee shall constitute receipt by the Fund; provided that the Fund receives notice of such order via the National Securities Clearing Corporation (the "NSCC") by 10:0<|eot_id|>
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the name to be used for the URL, which domain name and URL shall be mutually agreed upon by the Parties. 4.5 From time to time during the Term, Neoforma shall provide Qualified Leads to VerticalNet for job listings for inclusion, at VerticalNet's then current listing rate, in the Co-Branded Career Center and, in VerticalNet's sole discretion, on any other VerticalNet Site. VerticalNet shall be responsible for, and shall have sole control of, all credit, billing and collection in connection with the Qualified Leads. Neoforma shall have no authority to make collections on behalf of VerticalNet. 4.6 Neoforma hereby grants VerticalNet an exclusive license to use, modify, enhance, reproduce, display, perform and transmit the Neoforma Career Content, subject to and in accordance with the terms, conditions and provisions of this Agreement. VerticalNet shall not disclose, transfer or otherwise provide the Ne<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>ing the VerticalNet Auction from Neoforma Plan, Neoforma Shop and Neoforma Auction, which Links shall be as prominent as the other Links on such Sites. 3.8 Neoforma shall not enter into, and shall cause its Affiliates to not enter into, any agreement with a third party for the on-line listing of Laboratory Products on a VerticalNet Competitor or place any Link to a VerticalNet Competitor on the Neoforma Sites. Source: NEOFORMA INC, S-1/A, 12/2/1999 3.9 Within four weeks after the Effective Date, the Parties will collaborate to establish a close mutually-beneficial arrangement between Neoforma GAR and VerticalNet. 4. CO-BRANDED CAREER CENTER 4.1 VerticalNet shall design, develop and implement a Co-Branded Career Center and shall use commercially reasonable efforts to implement the Co-Branded Career Center as soon as possible following the Effective Date, and in any event, no later than February 1, 2000. The Co-Branded Career Center shall contain employment listings from the "Career Center" portion of each VerticalNet Medical Online Community. The overall "look and feel" of the Co-Branded Career Center shall be mutually agreed upon by the Parties and shall be substantially in the form of EXHIBIT E. VerticalNet shall host and maintain the Co-Branded Career Center in accordance with the terms and conditions set forth in this Agreement. Neoforma may maintain and/or add other career resource links to the Neoforma Sites; provided, however, that Neoforma shall not place any Links on any Neoforma Site to a Site that is primarily a career center and shall not place a Neoforma Link on any Site that is primarily a career center. 4.2 The Co-Branded Career Center shall contain Links to the "Career Center" portion of each VerticalNet Medical Online Community. 4.3 After the Co-Branded Career Center is implemented, VerticalNet shall notify Neoforma in writing at least five days prior to making any material change to the Co-Branded Career Center. If Neoforma does not notify VerticalNet of its rejection of such change within five days, Neoforma shall be deemed to have approved such change. 8 9 4.4 VerticalNet shall register and own the domain name and the URL used in connection with the Co-Branded Career Center, subject, however, to Neoforma's agreement on<|eot_id|>
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mmencing not earlier than six (6) months after the Effective Date with the resale of all of the shares of Stock completed as soon as practicable after the Effective Date. - 2 - 1.3 [Reserved]. 1.4 The Seller Trusts and GWG intend to retain one or more nationally recognized bulge bracket investment banks (the "Bank") for the orderly marketing and resale of Shares pursuant to a separate engagement letter (the "Engagement Letter") to advise them in connection with the sale of the Tranches (together, the "Offerings"). Such Engagement Letter shall include customary representations, warranties, covenants and indemnification provisions. The services to be performed by the Bank shall be set forth in such Engagement Letter and are expected to include, among others: (a) assisting in the drafting and preparation of one or more prospectus supplements describing GWG, the Shares and the terms of the Offerings; (b) advising the Seller Trusts on a marketing and distribution strategy for each Tranche of Shares, including whether a particular Tranche should be sold through a block trade, overnight bookbuild, or similar transaction; (c) assisting GWG in preparing marketing materials and conducting one or more "roadshows" and meetings with potential purchasers of the Shares; (d) advising the Seller Trusts as to the timing, structure and pricing of the Offerings; (e) providing other advisory services as are customary for similar transactions. The Engagement Letter shall include a requirement that, prior to any distribution of Stock by the Bank as contemplated by this Agreement, the Bank shall consult with each of GWG and the Trust Advisors as to the strategy for the marketing, sale and distribution of the respective Tranche. 1.5 After the Parties have agreed on the strategy for the marketing, sale and distribution of a Tranche, the Seller Trusts shall offer the Bank the right to serve as the lead left joint-book-running manager in connection with a best efforts distribution. GWG shall be entitled to appoint, in its discretion, an additional bank as joint book-running manager to participate in the distribution. The Seller Trusts further agree that in the event the Bank accepts such role it will be paid customary fees for the performance of its services in connection with such transactions and that such engagement will involve the execution of a standard form agreement with respect to the distribution of each Tranche, which may be in the form of <|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>d sufficiency of which is hereby acknowledged, the Parties agree as follows: Section 1. Orderly Marketing. 1.1 The shares of Stock held by each Seller Trust and subject to this OMA shall be as set out on Schedule A hereto, which Schedule may be amended from time to time in writing by the Parties in accordance with Section 4.1 below. 1.2 It is the goal of the Seller Trusts to have all of the Shares sold, on a pro-rata basis, in three or more tranches (each a "Tranche") co<|eot_id|>
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rneys' fees) arising out of or related to any breach of Dassault Systemes' representations, warranties and covenants set forth in this Agreement. 9.2 PlanetCAD Indemnification. PlanetCAD shall indemnify and hold harmless Dassault Systemes, its affiliates, and their respective officers, directors, employees, and shareholders from and against any claims, demands, suits, causes of action, losses, damages, judgments, costs and expenses (including reasonable attorneys' fees) arising out of or related to any breach of PlanetCAD's representations, warranties and covenants set forth in this Agreement. 9.3 Intellectual Property Infringement.Each Party agrees to hold the other Party, its subsidiaries and distributors and assignees harmless from and against any claim of any nature, including, but not limited to, administrative, civil or criminal procedures, which is or may be made or raised against this Party, its subsidiaries and distributors and assignees by any third party that the use or distribution of the Software or any other intellectual property that is the subject of this Agreement and owned or licensed by this Party, infringes or violates any third party's patent, copyright, trade secret or other intellectual property right in any country. Indemnification hereunder shall cover all damages, regardless of their nature, settlements, expenses and costs, including costs of investigation, court costs and attorneys' fees. The payment of any indemnification shall be contingent on: (a) This Party giving prompt written notice to the other of any such claim or allegation; (b) Cooperation by this Party with the other Party in its defense against the claim; and 11 12 (c) This Party obtaining the other's prior written approval of any settlement, if any, by this Party of such matters, such approval not to be unreasonably withheld. Source: RAND WORLDWIDE INC, 8-K/A, 4/2/2001 Neither Party shall have the obligation to indemnify the other for any claims of infringement based on any modification by the latest version of its Software, or from the combination of its Software with any other program to the extent such claim would not have arisen without such combination or from use of the unmodified Software or intellectual property. If the operation of any Software that is the subject of this Agreement becomes, or is likely to become, the subject of a claim involving the infringement or other violation of any patent, copyright, trade secret, or other intellectual property rights of any third party, the Parties will jointly determine in good faith what appropriate steps are to be taken by them, with a view towards curing such infringement or other violation, at the Software owner's sole charge. Such steps may include, but are not limited to: (i) The owner securing the right to continue using its Software, or (ii) The owner replacing or modifying its Software so that it becomes non-infringing. If no other option is reasonably available, the owner of the Software agrees to use its best efforts to withdraw, at its sole expense, the infringing Software from the market. In the event a Derivative Work, created under this Agreement, becomes the subject of a claim of infringement, the owner of said Derivative Work shall indemnify the other Party pursuant to this Section 9. <|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>TABASES 6.1 PlanetCAD's obligation to maintain and update Dassault Systemes Customer Databases. For as long as PlanetCAD hosts the Co-Branded Service, PlanetCAD will maintain and continuously update Dassault Systemes' Customer Database(s), which shall include without limitation, databases of Dassault Systemes Customers, of demands from and results of Web services supplied to Dassault Systemes Customers and associated Net Revenue and of data collected via the Customer Relations Management ("CRM") environment. The Dassault Systemes Customer Databases must be held separately from any other databases held or maintained by PlanetCAD. If not held separately, the Dassault Systemes Customer Databases must be clearly identified and sorted out as the property of Dassault Systemes and the provisions regarding PlanetCAD's limited right of use and its obligation of confidentiality as set forth below apply without change. 6.2 Ownership of Dassault Systemes Customer Databases. Dassault Systemes will be deemed the maker of the Dassault Systemes Customer Databases and the owner of any and all right, title and interest in and to the Dassault Systemes Customer Databases and their content, wherever hosted. At all times during the Term of this Agreement, Dassault Systemes will have unrestricted access to and use of the Dassault Systemes Customer Databases, and the content therein. At all times during the Term of this Agreement, and as long as the Dassault Systemes Customer Databases are hosted by PlanetCAD, PlanetCAD benefits from a limited right to use the assault Systemes Customer Databases for the exclusive purpose of performing its obligations under this Agreement. 6.3 Transfer of Dassault Systemes Customer Databases. Upon discontinuation of hosting of the Co-Branded Service, PlanetCAD will transfer to Dassault Systemes the Dassault Systemes Customer Databases upon Dassault Systemes' request. PlanetCAD will have no right, license or interest whatsoever in the Dassault Systemes Customer Databases or content therein, except to the extent necessary for performance of its obligations under this Agreement. 6.4 Warranty of Confidentiality of Dassault Systemes Customer Databases and Input and Output Data of Dassault Systemes Customers. The parties expressly agree that the Dassault Systemes Customer Databases and their content as well as Dassault Systemes Customers input data to be processed and output data supplied, are confidential information of Dassault Systemes, and will be treated as such, in accordance with the terms and conditions of the CNDA. 9 10 SECTION 7 COMPETITIVE RESTRICTIONS 7.1 Restrictions on PlanetCAD. (a) During the Term of this Agreement, and for a period of one year thereafter, except as expressly provided in this Agreement, PlanetCAD shall not market any services to Customers without the prior written approval of Dassault Systemes. (b) During the Term of this Agreement, PlanetCAD shall be permitted to market new functions and services relating to the Co-Branded Service directly to Dassault Systemes Customers with Dassault Systemes prior written approval, but only to the extent such functions and services are offered by PlanetCAD on the PlanetCAD Web site(s). (c) Notwithstanding the foregoing, PlanetCAD may market new functions and services on the PlanetCAD Web sites to customers that are Dassault Systemes Customers, without the consent of Dassault Systemes, provided PlanetCAD (i) obtained the contact information of such customer from an independent source unrelated to the parties to this Agreement and can provide evidence as to the independent source of the name and e-mail address of such customer, and (ii) did not use the data contained in the Dassault Systemes Customer Database(s). 7.2 Restrictions on Dassault Systemes. Except as contemplated under this Agreement, during the two year period following the Effective Date, Dassault Systemes shall not commercially offer any web service, which is (i) based upon the ACIS-based software transferred to Dassault Systemes in Source: RAND WORLDWIDE INC, 8-K/A, 4/2/2001 connection with the Purchase Agreement and (ii) similar to the Co-Branded Service. 7.3 Non-Exclusive Services Agreement. It is agreed and acknowledged by the parties that this Agreement is not an exclusive services agreement and except for the restrictions set forth in this Section nothing herein shall prohibit Dassault Systemes, PlanetCAD or any of their affiliates from developing or supplying, whether directly or indirectly, web services substantially identical to those described herein. SECTION 8 REPRESENTATIONS AND WARRANTIES 8.1 Mutual Representations. Each party represents and warrants to the other party as follows: (a) The performance of this Agreement does not infringe or conflict with any Intellectual Property right of any third party, and (ii) no confidential, proprietary or trade secret information of either party or their personnel that will be used in performing this Agreement has been misappropriated from any third party; and 10 11 (b) All services, work, obligations or assignments performed by either party under this Agreement will be of professional quality, conforming to generally accepted practices within the industry, and the Infrastructure including Third Party Software shall function and perform to the specifications and requirements thereof. 8.2 Hosting Representations and Warranties of PlanetCAD. For so long as PlanetCAD is hosting the Co-Branded Service, PlanetCAD shall use commercially reasonable efforts to ensure that the services provided on the site are equivalent in functionality and performance to the applications run on the PlanetCAD Web sites and of good quality according to generally accepted practices within the industry. 8.3 Disclaimer. THIS IS AN AGREEMENT SOLELY FOR SERVICES, AND THERE SHALL BE NO WARRANTIES, EXPRESS OR IMPLIED, EXCEPT AS STATED HEREIN. SECTION 9 INDEMNITIES AND LIMITATIONS ON LIABILITY 9.1 Dassault Systemes Indemnification. Dassault Systemes shall indemnify and hold harmless PlanetCAD, and its officers, directors, employees, and shareholders from and against any claims, demands, suits, causes of action, losses, damages, judgments, costs and expenses (including reasonable atto<|eot_id|>
2.472097
2.472097
ng the Company or the Trust within the meaning of Section 15 of the Securities Act. Nothing contained in this Agreement is intended or shall be construed to give any person, other than the persons referred to in this Section 13, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. 27 Section 14. Survival. The respective indemnities, representations, warranties and agreements of the Issuers and the Remarketing Agent contained in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall survive the Remarketing and shall remain in full force and effect, regardless of any termination or cancellation of this Agreement or any investigation made by or on behalf of any of them or any person controlling any of them. Section 15. Definition of the term "Business Day". For purposes of this Agreement, "business day" means any day on which the New York Stock Exchange is open for trading. Section 16. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. Section 17. Counterparts. This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument. Section 18. Headings; Interpretation. The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement. Any reference herein to an agreement entered into in connection with the issuance of securities contemplated therein as of the date hereof shall mean such agreement as it may be amended, modified or supplemented in accordance with its terms. Section 19. Amendment; Intention of Parties. This Agreement may be amended by any written instrument (including by an amendment and restatement hereof) at any time after the date hereof by the parties hereto. The Company acknowledges and agrees that the Remarketing Agent is acting solely in the capacity of an arm's length contractual counterparty to the Company with respect to the Remarketing contemplated hereby (including in connection with determining the terms of the Remarketing) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, the Remarketing Agent is not advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Remarketing Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Remarketing Agent of the Company, the transactions 28 contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Remarketing Agent and shall not be on behalf of the Company. [The rest of this page has been left blank intentionally; the signature page follows.] 29 If the foregoing correctly sets forth the agreement among the Company, the Trust and the Remarketing Agent, please indicate your acceptance in the space provided for that purpose below. 30 Very truly yours, REINSURANCE GROUP OF AMERICA, INCORPORATED By:/s/ Todd C. Larson Name:Todd C. Larson Title: EVP, Corporate Finance &Treasurer RGA CAPITAL TRUST I By:/s/ Todd C. Larson Name:Todd C. Larson Title: Administrative Trustee BARCLAYS CAPITAL INC. By:/s/ Gary Antenberg Authorized Representative SCHEDULE 1 Issuer Free Writing Prospectus dated March [1], 2011 Filed pursuant to Rule 433(d) Relating to Preliminary Prospectus Supplement dated February [16], 2011 Registration Statement Nos. 333-172296 and 333-172296-01 Term Sheet Remarketing Preferred Securities of RGA Capital Trust I Issuer: RGA Capital Trust 1 Securities Remarketed: $___ Remarketed Preferred Securities Maturity Date: June [5], 2011 Pricing Date: March [1], 2011 Settlement Date: March [4], 2010 Distribution Rate: ___% per annum Distribution Dates: March 15, 2011 for the period from the settlement date to and including March 14, 2011 and June 6, 2011 for the period from March 15, 2011 to and including June 4, 2011. Security Ratings (Expected)*: ___(Moody's) / ___(S&P) / ___(A.M. Best) Guarantee: Reinsurance Group of America, Incorporated has guaranteed payment of distributions to the extent described in the prospectus supplement and prospectus Deferral of Distributions: None CUSIP: 74956T 20 4 Remarketing Agent: Barclays Capital Inc. * An explanation of the significance of ratings may be obtained from the rating agencies. Generally, rating agencies base their ratings on such material and information, and such of their own investigations, studies and assumptions, as they <|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>ompany to comply with the terms or to fulfill any of the conditions of this Agreement, the Company will reimburse the Remarketing Agent 26 for all of its out-of-pocket expenses (including the fees and disbursements of its counsel) reasonably incurred by it; and (y) if the Remarketing Agent failed or refused to perform its obligations hereunder, without some reason sufficient hereunder to justify the cancellation or termination of its obligations hereunder, the Remarketing Agent shall not be relieved of liability to the Company for damages occasioned by its default and shall not be entitled to be reimbursed for any expense. Section 12. Notices, etc. Notices given pursuant to any provision of this Agreement shall be given in writing and shall be addressed as follows: (a) if to the Remarketing Agent, to Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention: Syndicate Registration (Fax No.: 646-834-8133); with a copy to Simpson Thacher & Bartlett, 425 Lexington Avenue, New York, New York 10017, Attention: Gary I. Horowitz, Esq. (Fax No.: 212-455- 2502).; and (b) if to the Company or to the Trust, to 1370 Timberlake Manor Parkway, Chesterfield, Missouri 63017, Attention: Jack B. Lay, Executive Vice President and Chief Financial Officer (Fax No.: 636-736-7839), with a copy to William L. Hutton, Esq., Senior Vice President General Counsel and Secretary, at the same address (Fax No.: 636-736-7739); and with a copy to Bryan Cave LLP, One Metropolitan Square, 211 North Broadway, Suite 3600, St. Louis, Missouri 63102, Attention: R. Randall Wang, Esq. (Fax No.: 314-552-8149); or in any case to such other address as the person to be notified may have requested in writing. Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof. Section 13. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the Remarketing Agent, the Company, the Trust and their respective successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that (A) the representations, warranties, indemnities and agreements of the Issuers contained in this Agreement shall also be deemed to be for the benefit of the officers, directors and employees of the Remarketing Agent and the person or persons, if any, who control the Remarketing Agent within the meaning of Section 15 of the Securities Act; and (B) any indemnity agreement of the Remarketing Agent contained in this Agreement shall be deemed to be for the benefit of directors, trustees, officers and employees of the Company, and the Trust, and any person controlli<|eot_id|>
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from the Software or any internal data files generated by the Software. 2.8 OWNERSHIP. Changepoint and its licensors hereby retain all of their right, title, and interest in and to the Software and Documentation, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein. All rights not expressly granted hereunder are reserved to Changepoint and its licensors. The Software and Documentation and all copies thereof are licensed, not sold, to Corio. All changes, modifications and enhancements or derivative works made to the Software or Documentation by Corio or Changepoint, or jointly by the parties, shall be owned by Changepoint, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein. Any works, inventions and developments, including but not limited to interface code, created by Corio or its contractors which enables the Software to work with and in conjunction with Corio's system software or Corio's other hosted applications, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein shall be owned by Corio. Ownership of any works to be created jointly by the parties, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein, shall be decided by the parties at the commencement of such joint efforts. Each of the parties shall, from time to time, execute and deliver all documents and other instruments reasonably requested by the other party to perfect such other party's ownership of the interests set forth in this Section 2.8. 2.9 NEW PRODUCTS. Updates and Upgrades to the Software are subject to the terms of this Agreement and are included in the applicable Software Support and Maintenance fees payable by Corio. Changepoint and Corio may, in the future, agree that new products and solutions offered by Changepoint may be added to this Agreement according to the license fees and other terms and conditions as the parties may agree. 2.10 PREFERRED RELATIONSHIP. During the one (1) year period commencing on the Effective Date (i) Changepoint and its affiliates, to the extent they publicly promote, market or advertise hosting services for the Software, will Publicly Promote Corio as its preferred hosting supplier and partner for the Software and will, in any non-public marketing or promotion of the Software, treat Corio as its preferred partner and supplier of hosting services for the Software, and (ii) Corio and its affiliates, to the extent they publicly promote, market or 5 CONFIDENTIAL TREATMENT advertise the use of a PSA Application in conjunction with the Corio Services, will Publicly Promote the Software as their preferred PSA Application and will, in any non-public marketing or promotion of the hosting services offered by Corio, treat Changepoint as their preferred supplier and partner for PSA Applications. In this Section 2.10, the term "Publicly Promote" means any marketing, promotion or solicitation of business made by any means in public or intended for reception by the public including, without limitation, in published sales, advertising and marketing materials, materials or statements posted on websites, public announcements and press releases, but does not include sales and marketing materials intended for reception by a specific customer or prospective customer, any confidential solicitation of business from a specific customer, nor any referral from a third party to solicit a specific customer. Should either party be in violation of the terms of the Preferred Relationship set forth in this Section 2.10, both parties agree that the sole and exclusive remedy for such breach is for the accused party to diligently use best commercial efforts to cease the activities in violation of this Section 2.10 and to correct the violation and, as soon as reasonably possible, cease to distribute or publish and destroy "Offensive Materials" after receiving written notice from the other party, and to provide such other party with commercially reasonable evidence that it has done so. "Offensive Materials", for purposes of this provision, means published sales, advertising and marketing brochures and collateral, statements posted on websites and public announcements and press releases or any other promotional materials, all intended for viewing by the public and published by or with the concurrence of the accused party. 2.11. MARKET DEFINITION. During the term of this Agreement, Corio agrees not to provide the Software in connection with Corio Services or distribute the Software under Section 2.5 of this Agreement to the following companies or their subsidiaries: ***. Corio and Changepoint agree that on an semi-annual basis, this list of companies will be reviewed by the parties and each party agrees that its consent to the other party's request for changes to this list (additions and deletions) will not be unreasonably withheld or delayed. 3. DELIVERY OF SOFTWARE. 3.1 DELIVERY AND ACCEPTANCE. Changepoint shall issue to Corio, via electronic means of delivery, as soon as practicab<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>ties and Exchange Commission pursuant to a request for confidential treatment. 4 Corio. Changepoint shall not be entitled to share in any Application Management Revenue received by Corio related to or arising from hosting services provided to Customers which obtain a license to the Software from Changepoint pursuant to this Section 2.5. Corio's right to collect fees from Customers under the Changepoint licenses under this Section 2.5 will expire upon termination of the Corio contracts with its Customers for such Software. 2.6 LICENSE AGREEMENTS. Corio shall make the Software on the Corio Servers remotely accessible to Customers under the then-current terms of its standard Customer license agreement. Each such Customer license shall, at a minimum, contain the provisions set forth in EXHIBIT E attached hereto and made a part hereof ("CUSTOMER LICENSE AGREEMENT TERMS"), or the substantial equivalent thereof. As to each Software User who is provided access to the Software, Corio or its Customers shall secure the Software User's consent to an end user agreement with terms at least equivalent to those in EXHIBIT E hereto. 2.7 RESTRICTIONS. Corio may not copy, distribute, reproduce, use or allow access to the Software except as explicitly permitted under this Agreement, and Corio shall not, nor will it permit any third party to, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code<|eot_id|>
9.132374
9.132374
s; (ii) any Translated Content; or (iii) any HSWI Modifications and any World Book Derivatives independently created by or on behalf of HSWI; and/or (b) any third party claim or action arising out of HSWI's material breach of this Agreement; provided that (i) World Book notifies HSWI promptly in writing of any such threat, claim, and/or proceedings related thereto; (ii) HSWI is given the opportunity to assume sole control over the defense and all related settlement negotiations, except that World Book shall have sole authority over approval of any settlement that admits fault or liability on the part of World Book; and, (iii) World Book provides HSWI with all reasonably necessary assistance, information and authority to perform the foregoing at HSW's expense. Notwithstanding anything to the contrary, the indemnity under this Section shall not apply to the extent the Content provided by World Book, or any accurate translation, contributes or results in an infringement or misappropriation of the Intellectual Property Rights of a third party. 9.2 World Book. World Book hereby agrees to defend, indemnify and hold harmless HSWI, its Affiliates, and their officers, directors, agents, employees, advertisers, service providers, end users and related entities from all costs, damages, liabilities and expenses (including reasonable attorneys fees) arising out of: (a) any third party claim or action alleging that the Content, Affinities and Images (excluding any World Book Derivatives independently created by or on behalf of HSWI) in the manner delivered by World Book or as contemplated for HSWI's use hereunder infringes or misappropriates any Intellectual Property Rights of any third party; and/or (b) any third party claim or action arising out of World Book's material breach of this Agreement; provided that: (i) HSWI notifies World Book promptly in writing of any such threat, claim, and/or proceedings related thereto; (ii) World Book is given the opportunity to assume sole control over the defense and all related settlement negotiations, except that HSWI shall have sole authority over approval of any settlement that admits fault or liability on the part of HSWI; and, (iii) HSWI provides World Book with all reasonably necessary assistance, information and authority to perform the foregoing at World Book's expense. Source: REMARK HOLDINGS, INC., 10-Q, 11/14/2008 10. LIMITATIONS OF LIABILITY. 10.1 EXCEPT FOR EITHER PARTY'S VIOLATION OF THE CONFIDENTIALITY OBLIGATIONS AND FOR EITHER PARTY'S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNT OF THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT. 10.2 EXCEPT FOR EITHER PARTY'S VIOLATION OF THE CONFIDENTIALITY OBLIGATIONS AND FOR EITHER PARTY'S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 11. MISCELLANEOUS PROVISIONS. 11.1 Force Majeure. In the event that either party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of any event beyond the control of the affected party including, but not limited to, natural disaster, acts of God, actions or decrees of governmental bodies or failure of communication lines (a "Force Majeure Event"), the party who has been so affected shall promptly give written notice to the other party and shall use commercially reasonable efforts to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended for the duration of such Force Majeure Event. 11.2 Notice. All notices, demands, requests or other communications required or permitted under this Agreement will be deemed given when (i) personally delivered; (ii) upon receipt after being sent by registered U.S. mail, return receipt requested; or (iii) upon receipt after being sent by commercial overnight carrier service with tracking capabilities to the address of the party set forth below, or such other address as such party last provided to the other party by written notice. World Book, Inc. 233 North Michigan Avenue Suite 2000 Chicago, IL 60601 Attn: Chief Financial Officer Source: REMARK HOLDINGS, INC., 10-Q, 11/14/2008 HSW International, Inc. One Capital City Plaza 3350 Peachtree Road, Suite 1600 Atlanta, Georgia 30326 Attn: Chief Executive Officer with a copy to: HSW International, Inc. One Capital City Plaza 3350 Peachtree Road, Suite 1600 Atlanta, Georgia 30326 Attn: General Counsel 11.3 Waiver. Failure to enforce any term of this Agreement at any time for any period shall not be construed as a waiver of such rights. No waiver shall be valid against any party hereto unless made in writing and signed by the party against whom enforcement of such waiver is sought and then only to the extent expressly specified therein. 11.4 Amendments. No changes or modifications to any provision of this Agreement shall be effective unless made in writing and signed by both parties. 11.5 Severability. In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired and the parties will substitute a new enforceable provision of like economic intent and effect. 11.6 Governing Law. This Agreement, the rights and obligations of the parties hereto, and any claims or disputes thereto, shall be governed by and construed in accordance with the laws of the State of New York without reference to conflict of law principles. Venue for any proceedings not subject to arbitration under this Agreement shall be in the state and federal courts located in New York, New York. 11.7 Arbitration. If any dispute arises under this Agreement that is not settled promptly in the ordinary course of business, the Parties shall seek to resolve any such dispute between them; first, by negotiating promptly with each other in face-to-face negotiations. Any controversy or claim arising out of or relating to the interpretation, enforcement or breach of this Agreement that cannot be resolved within fifteen (15) business days (or such period as the Parties shall otherwise agree) through face-to-face negotiations shall be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Arbitration shall be by a single arbitrator mutually acceptable to the parties and experienced in the matters at issue and selected by the Parties in accordance with the Commercial Arbitration Rules of the American Arbitration Association. If the partie<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>lidly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant under such laws, in good standing; (ii) It has the corporate and/or other legal capacity, authority and power to execute, deliver, and perform its obligations under this Agreement and any other document relating hereto to which it is a party, and has taken all necessary action to authorize such execution, delivery and performance; (iii) Such execution, delivery and performance do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; (iv) All governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to this Agreement and any other document relating hereto to which it is a party have been obtained or submitted and are in full force and effect and all conditions of any such authorizations, approvals, consents, notices and filings have been complied with; (v) Its obligations under this Agreement and any other document relating hereto or thereto to which it is a party constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms; (vi) There is not pending or, to its knowledge, threatened against it any action, suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency or official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or any other document relating hereto to which it is a party or its ability to perform its obligations under the same; [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. Source: REMARK HOLDINGS, INC., 10-Q, 11/14/2008 (vii) There is not pending or, to its knowledge, threatened against it any action, suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency or official or any arbitrator related to the violation of the Intellectual Property Rights of a third party related to the subject matter of this Agreement; and (viii) It is not relying upon any representations of the other party other than those expressly set forth in this Agreement or any other document relating hereto. 8.2 HSWI's Representations and Warranties. HSWI hereby represents and warrants that it has all applicable rights in and to the HSWI Websites and the HSWI Websites do not and will not infringe or misappropriate the Intellectual Property Rights of any third persons. 8.3 World Book's Representations and Warranties. World Book hereby represents and warrants that: (i) it has all applicable rights in and to the Content and the Content does not and will not infringe or misappropriate any Intellectual Property Rights of any third persons; (ii) it will perform all services in a professional, diligent, and workmanlike manner; (iii) the Content will be free from material errors or inaccuracies; (iv) the Content will comply with all laws and regulations of the People's Republic of China, including without limitation for distribution, publication and educational use as contemplated herein; and, (v) the Content as delivered by World Book is expressly approved by or within the applicable guidelines of the national government, any ministries, and provincial governments, as applicable, of the People's Republic of China for distribution, publication and education use as contemplated herein. In the event of a breach of the foregoing warranties, and without limitation to any other remedies of HSWI, World Book shall promptly remedy the breach at no additional cost or expense to HSWI. 8.4 Disclaimer. EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES, INCLUDING, WITHOUT LIMITATION, AS TO THE ACCURACY OR COMPLETENESS OF THE CONTENT. TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE. Source: REMARK HOLDINGS, INC., 10-Q, 11/14/2008 9. INDEMNIFICATION. 9.1 HSWI HSWI hereby agrees to defend, indemnify and hold harmless World Book and its officers, directors, agents, and employees from all costs, damages, liabilities and expenses (including reasonable attorneys fees) arising out of: (a) any third party claim or action alleging that any of the following infringe or misappropriate the Intellectual Property Rights of a third party: (i) the HSWI Websites or the HSWI trade dress utilized in the Display of the Content on the HSWI Website<|eot_id|>
7.797256
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onthly basis, including balance sheets and income statements. 8. Intellectual Property Rights 8.1. Background Intellectual Property Rights. Each Party shall own and retain all right, title and interest in and to all of its Intellectual Property Rights created before or independently from the Development Plan and this Agreement ("Qualigen Background IP" and "Sekisui Background IP," respectively). 8.2. Development Plan Intellectual Property Rights. Except as set forth in this Section, Qualigen shall own all right, title and interest in and to all Intellectual Property Rights (if any) resulting from Qualigen's activities under the Development Plan ("Development IP"), but excluding all Sekisui Background IP. In the event that any Development IP is jointly invented by the Parties in accordance with applicable intellectual property laws, then the ownership of such Development IP that has been jointly invented shall be co-owned by the Parties in accordance with such applicable intellectual property laws; provided, however, that neither Party shall have any duty or obligation to account to the other for any use or exploitation of such jointly invented Development IP and as between the Parties, each Party shall be entitled to retain any and all benefit, financial or otherwise, derived by such Party from such jointly invented Development IP. 8.3. Prosecution and Enforcement of Development IP. Except as set forth below, Qualigen shall have the sole right to prepare, file applications on and registrations for, prosecute, obtain, maintain, defend and enforce all Intellectual Property Rights in the Development IP in such manner as Qualigen deems appropriate in its sole discretion, including incurring and paying all expenses required for such purposes. Notwithstanding the foregoing, Qualigen shall use commercially reasonable efforts to preserve, obtain and maintain in the Applicable Markets all material Development IP and Qualigen Background IP related to or used in connection with the development and manufacturing of the Products as well as any improvements or alternative embodiments thereof, and shall consult Sekisui before determining not to pursue in any Applicable Market any particular Intellectual Property Rights related to any product development efforts covered by the Development Plan. In the event that Qualigen elects not to prosecute or maintain in a particular Applicable Market country any Patent Rights in the jointly developed Development IP (the "Abandoned Joint IP"), Sekisui may elect to prosecute such Abandoned Joint IP in such particular Applicable Market country, in which case the Patent Rights for such Abandoned Joint IP in such particular in Applicable Market country shall be owned solely by Sekisui. 12 Source: RITTER PHARMACEUTICALS INC, S-4/A, 3/13/2020 8.4. Marks. During and after the Term, neither Party shall register, use or claim ownership or other rights in any logo, trade name, brand name or trademark of the other Party in existence during the Term (nor any logo, trade name, brand name or trademark confusingly similar to any logo, trade name, brand name or trademark of the other Party in existence during the Term), nor assist anyone else to do so, nor make or assist in any challenge to any logo, trade name, brand name or trademark of the other Party in existence during the Term. 9. Sale Transaction 9.1. Exclusivity Period. The parties anticipate that they will entertain a potential acquisition of Qualigen by Sekisui during 2018 on terms to be mutually agreed. Accordingly, Qualigen hereby agrees that during the Exclusivity Period, Qualigen shall not, directly or indirectly, through its affiliates, agents, stockholders, officers, directors or otherwise solicit, initiate, participate in discussions or negotiations or otherwise cooperate in any way with, or provide any information to any person, entity or group other than Sekisui concerning a Sale Transaction. In the event that Qualigen nonetheless receives an unsolicited offer to engage in a Sale Transaction during such Exclusivity Period, Qualigen may engage with such party to the extent legally required to comply with its fiduciary duties, so long as Qualigen (i) promptly communicates to Sekisui the material terms of any proposal or offer or request for information which it may receive in respect of any such proposed Sale Transaction, including the purchase price, form and timing of consideration and the identity of the acquirer, and (ii) complies with Sekisui's Right of First Refusal (as defined below). 9.2. Negotiation Period. No later than July 1, 2018 (and sooner upon Sekisui's written request at any time before July 1, 2018), the parties shall engage in good faith negotiations for a period of up to 6 months (the "Negotiation Period") with respect to a potential acquisition by Sekisui of Qualigen. During the Negotiation Period, Qualigen shall provide to Sekisui all due diligence information reasonably requested by Sekisui so that it may make an informed offer to acquire Qualigen. Any Financing Payments made by Sekisui will be credited against any such Sale Transaction agreed to between Sekisui and Qualigen. If the parties do not mutually agree to the terms of such potential acquisition within the Negotiation Period then the Exclusivity Period shall end and, subject to Sekisui's Right of First Refusal, Qualigen shall be free to negotiate the terms of a Sale Transaction with any Third Party. 9.3. Right of First Refusal. During the Term, Sekisui shall have a right of first refusal to match the terms of any arms length, bona fide proposed Sale Transaction with a Third Party ("Sekisui's Right of First Refusal"). Qualigen shall provide Sekisui with at least 30 days prior written notice and access to all due diligence materials provided to any potential acquirer, such 30 day period to commence upon the notification to Sekisui that Qualigen's board of directors has approved such Proposed Sale Transaction (as set forth in a term sheet or draft definitive agreement provided to Sekisui), subject to Sekisui's Right of First Refusal. At any time during such 30 day period, Sekisui may elect to match the terms of such proposal. Sekisui will be credited in any such proposal by the cumulative amount of all Financing Payments made to date. For example, if a Third Party offers to acquire Qualigen for $50,000,000 and Sekisui has funded the full $6,200,000 of Financing Payments, Sekisui's Right of First Refusal to match the proposed transaction would be a price of $43,800,000. In the event that Sekisui elects not to move forward with such proposal for a Sale Transaction, Qualigen shall have a period of 120 days to consummate a Sale Transaction on the same terms as provided to Sekisui. If a Sale Transaction has not been consummated within such 120 days period, any Sale Transaction must once again comply with the provisions of this Section 9.3. 13 Source: RITTER PHARMACEUTICALS INC, S-4/A, 3/13/2020 9.4. Penalty for Breach. In the event of any breach of Sections 9.1 through 9.3, including without limitation, any actions by stockholders of Qualigen that result in a Sale Transaction without complying with Sections 9.1 through 9.3 above, or otherwise hinder the intent and purpose of the provisions of Sections 9.1 through 9.3 above, in addition to any other remedies available to Sekisui under the terms of this Agreement, including the right to specific performance and other equitable remedies, Sekisui shall be entitled to liquidated damages in the amount of three times any and all Financing Payments made to date. For the avoidance of doubt, this clause does not apply to a failure of the stockholders of Qualigen to approve a Sale Transaction proposed by Sekisui, so long as such stockholders did not approve a Sale Transaction on the s<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>cable data and an assessment of resources. 6.4. Quality Subcommittee. The Management Committee may also organize quality review meetings, which may include members of the Management Committee as well as other representatives of either Party, meeting quarterly unless otherwise specified in writing by the Parties (in person or via phone/webmeeting) to monitor, review, and discuss various aspects of Qualigen's quality assurance programs, including a one day Quality program management review and one day of internal auditing of quality matters. 6.5. Other Subcommittees. The Management Committee may establish other subcommittees from time to time as it deems appropriate. 7. Information Rights 7.1. Development Plan. Qualigen shall maintain complete and accurate records and data regarding the work completed under the Development Plan. Representatives of Sekisui may, upon reasonable advance notice, (a) visit the facilities where the Development Plan activities are being performed, and (b) consult with any such Qualigen personnel performing such activities. 7.2. Delivery of Financial Statements and Other Information. Qualigen shall deliver to Sekisui: 7.2.1. as soon as practicable, but in any event within one-hundred eighty (180) days after the end of each fiscal year of Qualigen (i) a balance sheet as of the end of such year, (ii) a statement of income for such year, and (iii) a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in Qualigen's budget for such year, with an explanation of any material differences between such amounts, all such financial statements in the form of a compilation prepared by independent public accountants; 7.2.2. as soon as practicable, but in any event within thirty (30) days after the end of each quarter of each fiscal year of Qualigen, an unaudited statement of income for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP); 11 Source: RITTER PHARMACEUTICALS INC, S-4/A, 3/13/2020 7.2.3. as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP); 7.2.4. as soon as practicable, but in any event within forty five (45) days after the end of each quarter of each fiscal year of Qualigen, a progress report setting forth Qualigen's business results and progress against the Development Plan; and 7.2.5. as soon as practicable, but in any event no later than sixty (60) days before the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a m<|eot_id|>
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of the United States and be paid in the same currency. In conjunction with the CBP, the F&ASC shall develop procedures to deal with the differences between the exchange rates in the circumstances when the currency of invoices rendered to the CBP is not the currency of the United States. 9. KEEPING AND INSPECTION OF BOOKS FOR SEGMENT S AND T 9.1 For those portions of the Wet Segment, if any, specified in the Supply Contract as cost incurred items, the PG shall ensure that the Supply Contract requires the Supplier to keep and maintain such books, records, vouchers and accounts of all such costs with respect to the engineering, provision and installation of those items for a period of five (5) years from the RFPA Date of the Wet Segment, as specified in the Supply Contract. 9.2 For those portions of the Wet Segment specified in the Supply Contract as fixed cost items, the PG shall ensure that the Supply Contract requires the Supplier to keep and maintain records with respect to their respective billing of those items for a period of five (5) years from the RFPA Date of the Wet Segment, as specified in the Supply Contract. 9.3 The PG shall ensure that the Supply Contract requires the Supplier to obtain from their contractors and subcontractors such supporting records, for other than the cost of fixed cost items, as may be reasonably required by Subparagraph 9.1 and to keep and maintain such records for a period of five (5) years from the RFPA Date of the Wet Segment, as specified in the Supply Contract. 20 9.4 The PG shall ensure that the Supply Contract shall afford the Parties to this Agreement the right to review the books, records, vouchers, and accounts required to be kept, maintained, and obtained pursuant to Subparagraphs 9.1, 9.2 and 9.3. 9.5 With respect to costs incurred for the provision of the Wet Segment by a Party, comparable records to those specified in Subparagraphs 9.l, 9.2 and 9.3 as appropriate, shall be maintained by the Party for a period of five (5) years from the date that such costs were incurred. 9.6 The PG and the Terminal Parties shall each keep and maintain such books, records, vouchers, and accounts of all costs that are incurred in the engineering, provision and installation of the Wet Segment and Segment T and not included in the Supply Contract, which they incur directly, for a period of five (5) years from the RFS Date or the date the work is completed, whichever is later. The CBP shall keep and maintain such books, records, vouchers and accounts with respect to its billing of costs incurred by the Terminal Parties and any other Party having incurred costs for implementation of APCN 2 as authorized by the Management Committee, and costs billable under the Supply Contract for a period of five (5) years from the System RFS Date or the date on which the work is completed, whichever is later. 9.7 With respect to the operation and maintenance costs of Segments T and the Wet Segment, such books, records, vouchers, and accounts of costs, as are relevant, shall be kept and maintained by the Terminal Parties for a period of five (5) years from the date on which the corresponding bills are rendered to the Parties. If a Terminal Party does not retain these records beyond this period, a summary of important items should be retained for the life of APCN 2. 9.8 Any Party shall have the right to review or audit the relevant books, records, vouchers, and accounts of costs pursuant to this Paragraph 9. In affording the right to review o<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>ing, as applicable, charged by established commercial banks in the countries concerned on the fifteenth day of the month in which the costs were incurred by the invoicing Parties. If such a day is not a business day, the rate prevailing on the next business day shall be used. The source of the rate of such financial charges shall be as shown at Annex 6. The application of financial charges relating to costs incurred for the APCN 2 Capital Costs and O&M Costs shall be limited to a maximum of 120 days, unless otherwise approved by the Management Committee. 7.9 Amounts billed and not paid when due shall accrue extended payment charges from the day following the date on which payment was due until paid. If the due date is not a business day, the due date shall be postponed to the next business day. For the purpose of this Agreement, extended payment charges shall be computed at three hundred percent (300%) of the rate described in Subparagraph 7.8 on the day following the date payment on the bill was due. In the event that applicable law does not allow the imposition of extended payment charges at the rate established in accordance with this Subparagraph 7.9, extended payment charges shall be at the highest rate permitted by applicable law, which in no event shall be higher than the rate computed in accordance with this Subparagraph 7.9. For purposes of this Agreement, "paid" shall mean that the funds are immediately available for use by the recipient. 7.10 Credits for refunds of financial charges and bills for extended payment charges shall not be rendered if the amount of charges involved is less than the equivalent of one hundred ($100) US dollars or its equivalent in the billing currency. 7.11 A bill shall be deemed to have been accepted by the Party to whom it is rendered if that Party does not present a written objection on or before the date when payment is due. If such objection is made, the Parties concerned shall make every reasonable effort to settle promptly the dispute concerning the bill in question. If the objection is sustained and the billed Party has paid the disputed bill, the agreed upon overpayment shall be promptly refunded to the objecting Party by the invoicing Party together with any financial charges 19 calculated thereon at a rate determined in accordance with Subparagraph 7.8 of this Agreement from the date of payment of the bill to the date on which the refund is transmitted to the objecting Party. If the objection is not sustained and the billed Party has not paid the disputed bill, said Party will pay such bill promptly together with any extended payment charges calculated thereon at a rate determined in accordance with Subparagraph 7.9 of this Agreement from the day following the day on which payment was due until paid. Nothing in this Subparagraph 7.11 shall relieve a Party from paying those parts of a bill that are not in dispute. 7.12 Upon the signing of this Agreement, the CBP shall render bills to the Parties for approximately five percent (5%) of their financial commitment in APCN2 as determined by Schedule B. The exact amount of the bills and the billing procedure shall be determined by the Management Committee. The funds received by the CBP from these bills shall be kept in an interest bearing account for the benefit of the Parties to be maintained by the CBP and the used solely and in their entirety to pay the first invoices received by the CBP. 8. CURRENCY OF PAYMENT All invoices rendered to the CBP shall be in the currency of the United States, or in the currency of the invoicing Party which is specified in Annex 6 or the currency in which the cost was incurred in the case of O&M Costs. Such invoices shall be paid in the currency in which the invoices are rendered. The CBP shall render bills to the Parties in the currency <|eot_id|>
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Time by Franchisee; (2). Franchisee's right to assign his interest under the lease or sublease to Pretzel Time without the lessor's or sublessor's consent; (3). Allowing Franchisee to transfer the lease to Pretzel Time or another approved franchisee in the event that Franchisee sells his business (a copy of the form of the third party assignment agreement that Franchisee and the prospective purchaser would sign is attached hereto as Exhibit L); (4). Authorizing and requiring the Lessor or sublessor to disclose to Pretzel Time, upon its request, sales and other information that Franchisee furnishes to the lessor or sublessor; and (5). Providing that Pretzel Time (or one of its Affiliates or its Assignee) shall have the right (but not the obligation) to assume the lease or sublease: (i) Upon termination of this Agreement by Pretzel Time or upon expiration of this Agreement (unless a Successor Franchise is granted to Franchisee), or (ii) If Franchisee fails to exercise any options to renew or extend the lease or sublease or, (iii) If Franchisee commits a default that gives the lessor or sublessor the right to terminate the lease or sublease, or (iv) If Pretzel Time or one of its Affiliates or its designee/assignee purchases the Unit. (6). A provision allowing sampling in front of the retail Unit; (7). A provision that the premises are to be used exclusively for a Pretzel Time Unit only; and (8). A provision which permits alterations to the premises in a good and workman-like manner by Franchisee as required by Pretzel Time. Franchisee further agrees to execute and return the lease and any other riders, guaranties or sureties required by the Landlord within seven (7) days from receipt of the same and no later than sixty (60) days after signing of this Agreement. If any lease expires prior to the expiration of this Agreement, Franchisee will be required to arrange any necessary lease for the Unit and Pretzel Time shall have the right to approve the terms of the renewal lease for the Unit prior to Franchisee's execution thereof. Franchisee agrees that he will not execute a lease or sublease which Pretzel Time has disapproved. Franchisee shall deliver a copy of the signed lease to Pretzel Time for the Unit within five (5) business days after its full execution. The copy shall be complete and include copies of all signature pages and exhibits. A copy of the form of the sublease that Franchisee shall execute (if Pretzel Time is the tenant pursuant to the lease) is attached hereto as Exhibit M. A copy of the form of the collateral assignement of lease that Franchisee shall execute (if Franchisee is the tenant pursuant to the lease) is attached hereto as Exhibit N. Franchisee shall be responsible for all terms and conditions of the lease covering the franchise location, including any required security deposit and prepaid rent. Franchisee agrees to pay the Unit rent directly to the landlord at the rate and terms specified in the primary lease between landlord and Franchisee. Rent is generally paid monthly on the first day of the month and is non-refundable. Franchisee agrees that the Unit shall be used only as a Pretzel Time franchise. If Franchisee fails to obtain lawful possession of an approved Site (through a lease or assignment) within sixty (60) days after delivery of Pretzel Time's approval of the Site, Pretzel Time, may, in its sole discretion, withdraw approval of such Site at any time. 7.C. RELOCATION. In the event that Franchisee's lease is terminated, with or without fault of Franchisee, if the Site is damaged, condemned or otherwise rendered unusable as a Pretzel Time Unit in accordance with this Agreement, or if, in the judgment of Pretzel Time and Franchisee, there is a change in the character of the location of the Site sufficiently detrimental to his busin<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>rticipate and cooperate in the prosecution of any action to prevent the infringement, imitation, illegal use or misuse of the Marks and agrees to be named as a party in any such action if requested by Pretzel Time. Pretzel Time agrees to bear the legal expenses incident to Franchisee's participation in such action, except for the cost of Franchisee's personal legal counsel if Franchisee elects to be represented by counsel of his own choosing. 6.F. USE OF SERVICE MARK. Except with the prior written consent of Pretzel Time, Franchisee agrees not to infringe upon, use or imitate Pretzel Time's System, or any of its distinguishing characteristics, and further agrees not to cause or allow any other person to infringe upon, use or imitate Pretzel Time's System, or any of its distinguishing characteristics. Franchisee agrees to use and display the Marks at all times only in accordance with the quality control standards set forth in this Agreement and in the Operations Manual. During the term of this Agreement, and renewal term, if any, Franchisee will operate the Unit only under the Marks . Franchisee will use or display the Marks only within the designated Territory. Franchisee will cause a sign bearing the name Pretzel Time which meets Pretzel Time's specifications for color, design and size, to be installed on the outside of the retail Unit. Franchise shall not, at any time during the term of this Agreement or after its termination or expiration use any Mark in connection with the sale of any unauthorized product or service or in any other manner not expressly authorized in writing by Pretzel Time. 7. SELECTION OF FRANCHISE LOCATION. 7.A. SITE SELECTION. Franchisee shall be responsible for leasing a suitable site for the Franchise subject to Pretzel Time's approval. Pretzel Time agrees to assist Franchisee in locating and securing a location for the unit which is acceptable to both Pretzel Time and Franchisee. Franchisee shall submit to Pretzel Time a list of desired locations on the Location Agreement attached hereto as Exhibit W or if Pretzel Time directs on a form prepared by Pretzel Time and attached hereto as Exhibit F, and Pretzel Time shall contact the appropriate leasing representatives to determine the availability of sites at those locations. After obtaining information from appropriate leasing representatives, Pretzel Time shall notify Franchisee whether or not the sites made available to Pretzel Time are acceptable by Pretzel Time. In the event that a site for the franchise cannot be located which is acceptable and suitable to both Pretzel Time and Franchisee within One Hundred Twenty (120) days, then the Franchise Agreement shall be terminated and all franchise fees paid by Franchisee shall be refunded. Pretzel Time shall approve the site for the unit in reliance upon information furnished and representations made by Franchisee with respect to the size, appearance, and other physical characteristics of the site, photographs of the site, demographic characteristics, traffic patterns, competition from other businesses in the area, and other commercial characteristics. Pretzel Time's approval of the site indicates only that Pretzel Time believes that the site falls within acceptable criteria established by Pretzel Time as of the time period encompassing the evaluation. Franchisee agrees that Pretzel Time shall not be responsible for the failure of a franchise, site and/or premises approved by Pretzel Time to meet expectations as to potential revenue or operational criteria. Franchisee acknowledges and agrees that his acceptance of a Franchise for the operation of a Unit in the Territory is based on his own independent investigation of the suitability of the mall location. Franchisee acknowledges that Pretzel Time's approval of the lease or sublease for the Unit does not constitute a guarantee or warranty by Pretzel Time, express or implied, of the successful operation or profitability of a Unit operated at the designated Site. Such approval indicates only that Pretzel Time believes that the Unit and the terms of the lease fall within the acceptable criteria established by Pretzel Time as of the time period encompassing the evaluation. 7.B. LEASE. Pretzel Time and Franchisee further agree that Pretzel Time shall negotiate the basic economic terms of the lease in consultation with the Franchisee. Franchisee agrees to execute a letter of intent for the lease premises which outlines the basic economic terms of the lease and return it to Pretzel Time within five (5) days of receipt of same. Franchisee acknowledges and agrees that he is responsible for reviewing the terms of the agreement and making any necessary changes to the lease agreement. Franchisee shall not execute any lease agreement without the prior approval of Pretzel Time, which shall be conditioned upon inclusion of terms in the lease acceptable to Pretzel Time and at Pretzel Time's option shall contain such provisions, including, but not limited, to: (1). Notice to Pretzel Time of, and Pretzel Time's right to cure, Franchisee's default under the lease provided, however, that if Pretzel Time cures any such default, the total amount of all costs and payments incurred by Pretzel Time in effecting the cure shall be immediately due and owing to Pretzel <|eot_id|>
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will not have the power to award punitive or exemplary damages, or any damages excluded by, or in excess of, any damage limitations expressed in this Agreement. Issues of arbitrability will be determined in accordance solely with the federal substantive and procedural laws relating to arbitration; in all other respects, the arbitrator will be obligated to apply and follow the substantive law of the State of Delaware. 7 6.3. EQUITABLE RELIEF. Notwithstanding anything to the contrary in this Agreement, in the event of an alleged violation of Article 7 [CONFIDENTIALITY] of this Agreement by either party, the party alleging such a violation may seek temporary and permanent injunctive or other appropriate equitable relief from any court of competent jurisdiction pending appointment of an arbitrator. The party requesting such relief shall simultaneously file a demand for arbitration of the dispute, and shall request that the AAA proceed under its rules for an expedited hearing. 6.4. COSTS. Unless the arbitrator, if any, determines otherwise, each party will bear its own attorneys' fees and other costs associated with the negotiation and arbitration provided for by this Article 6 [DISPUTE RESOLUTION], except that costs and expenses regarding the arbitrators shall be shared equally. If court proceedings to stay litigation or compel arbitration are necessary, the party who unsuccessfully opposes such proceedings will pay all associated costs, expenses and attorneys' fees that are reasonably incurred by the other party. To the extent that any claim in arbitration relates to the collection of amounts owed under Article 4 [THE COMMERCIAL TERMS], the party entitled to collect such amounts shall be entitled to recover all reasonable costs of collection, including expenses and attorneys' fees that are incurred. 6.5. TWO YEAR LIMITATION. Except for claims under Sections 9.4 [INDEMNIFICATION BY IMPRESSE] and 9.5 [INDEMNIFICATION BY VERTICALNET] Source: IMPRESSE CORP, S-1/A, 3/22/2000 hereof, neither party may bring a claim or action regardless of form, arising out of or related to this Agreement, including any claim of fraud or misrepresentation, more than two years after the cause of action accrues or becomes known, whichever is later. 6.6. CONFIDENTIALITY. In order to facilitate the resolution of controversies or claims between the parties with respect to each party hereto, such controversies or claims, including details regarding negotiations, arbitration and settlement terms, shall be treated as Confidential Information of the other party hereto in accordance with Article 7 [CONFIDENTIALITY]. 6.7. REMEDIAL MEASURES. In the event of (a) any material remediable breach of this Agreement by the other party which remains uncured 30 days after notice of such breach was received by the other party or (b) any material breach which cannot be cured, the non-breaching party may take reasonable remediable measures upon prior written notice and at the cost and expense of the breaching party without prejudice and in addition to any other rights arising from such breach. In addition, the non-breaching party shall take reasonable steps to mitigate damages arising out of such breach. 7. CONFIDENTIALITY 7.1. CONFIDENTIALITY OBLIGATIONS. Except as permitted elsewhere under this Agreement, each party agrees to take Reasonable Steps (as defined below) (a) to receive and maintain the Confidential Information of the other party in confidence and (b) not to disclose such Confidential Information to any third parties, provided, the receiving party may disclose such Confidential Information to its employees, representatives and agents who have a need to know such information for purposes of carrying out the terms of this Agreement. Neither party hereto shall use all or any part of the Confidential Information of the other party for any purpose other than to perform its obligations under this Agreement. The parties will take Reasonable Steps (as defined below) to ensure that their employees, representatives and agents comply with this provision. As used herein, "Reasonable Steps" means at least the same degree of care that the 8 receiving party uses to protect its own Confidential Information, and, in no event, not less than reasonable care. 7.2. EXCLUSIONS. "Confidential Information" does not include information that (a) is or becomes publicly available through no fault of the receiving party; (b) was already known to the receiving party at the time it was disclosed to the receiving party, as evidenced by records of the receiving party; (c) is independently developed by employees of the receiving party who had no knowledge of or access to such information, as evidenced by records of the receiving party; (d) is received from a third party who is under no obligation of confidentiality to the disclosing party; or (e) must be disclosed pursuant to applicable laws, rules or regulations; provided, however, that the receiving party first gives the disclosing party notice and a reasonable opportunity to secure confidential protection of such Confidential Information. 7.3. TERMINATION. Subject to Section 10.11 [SURVIVAL], upon termination of this Agreement, all Confidential Information shall be returned to the disclosing party or, at the request of the disclosing party, destroyed unless otherwise specified or permitted elsewhere under this Agreement. Subject to Section 7.6 [USER DATA], the confidentiality obligations contained in this Article 7 [CONFIDENTIALITY] shall survive termination of this Agreement for a period of three years. 7.4. INJUNCTION. Each party acknowledges and agrees that the provisions of this Article 7 [CONFIDENTIALITY] are reasonable and necessary to protect the other party's interests in its Confidential Information, that any breach of the provisions of this Article 7 [CONFIDENTIALITY] may result in irreparable harm to such other party, and that the remedy at law for such breach may be inadequate. Accordingly, in the event of any breach or threatened breach of the provisions of this Article 7 [CONFIDENTIALITY] by a party hereto, the other party, in addition to any other relief available to it at law, in equity or otherwise, shall be entitled to seek temporary and permanent injunctive relief restraining the breaching party from engaging in and/or continuing any conduct that would constitute a breach of this Article 7 [CONFIDENTIALITY], without posting a bond or other security. 7.5. PUBLICITY. Neither party will originate any press release concerning the relationship between the parties or the transactions described in this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, as soon a<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>rested arbitrator who is knowledgeable in business information and the Internet and experienced in handling commercial disputes. The arbitrator shall be appointed jointly by the parties hereto within 30 days following the date on which the arbitration is instituted. If the parties are unable to agree upon the arbitrator within such 30-day period, the AAA shall be instructed to select such arbitrator within 15 days thereafter. The arbitrator's award will be final and binding and may be entered in any court having jurisdiction. The arbitrator <|eot_id|>
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TWARE. Changepoint v 5.1 3. RELATIONSHIP MANAGERS. The Corio Relationship Manager shall be: ____________. The Changepoint Relationship Manager shall be: _____________. 4. PRODUCT MANAGERS. For purposes of Section 5.4 of this Agreement, the Corio product manager shall be: _______________. The Changepoint product manager shall be:______________________. 20 CONFIDENTIAL TREATMENT EXHIBIT B PRICING SOFTWARE: Changepoint v 5.1 REVENUE SHARING FEES: 1. Corio Customer Application Management Revenue: Corio to pay Changepoint *** of all Application Management Revenue from Corio Customers for use of Changepoint Software subject to the following limitations. A. The Corio invoice amounts used to calculate the revenues subject to this revenue share shall not include Professional Service fees or Network access fees. B. These Application Management Revenue fees shall begin accruing when the Corio Customer first commences making payments to Corio for the Corio Services. Software support and maintenance fees are included in the 10% Revenue Sharing Fee. PAYMENT TERMS Revenue Sharing Fees: Quarterly payments shall be due to receiving party, net 30 days after quarter close. Implementation or Professional Service Fees: Net 30 days from date of Changepoint invoice, which shall be issued only after successful completion of each agreed upon milestone. *** The omitted material has been filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment. 21 EXHIBIT C CUSTOMER SERVICE OUTLINE CORIO RESPONSIBILITIES: Corio will provide "Level 1 Support" and "Level 2 Support" directly to Customers and Software Users. Level 1 Support means the service provided in response to the initial phone call placed by a Customer or Software User which identifies and documents an error in the Software. This includes problem source identification assistance, problem analysis, problem resolution, installation planning information and preventative and corrective service information. Level 2 Support means the service provided to analyze or reproduce the error or to determine that the error is not reproducible. This includes problem recreation and in-depth technical analysis. Corio shall use all commercially reasonable efforts to promptly provide Changepoint with notification of "bugs" encountered in the Software. CHANGEPOINT RESPONSIBILITIES: Changepoint will provide "Level 3 Support" to Corio for problems that have been escalated beyond Level 2 Support. Changepoint will provide Level 3 Support to Corio according to the following problem priority level definitions and respective schedules: - - "Priority One Problems" are those in which the Software fails to perform major functions on a system-wide basis resulting in a critical business impact. Changepoint will allocate resources to address the problem within two (2) business hours. - - "Priority Two Problems" are those in which the functionality of the Software is substantially restricted or the problem is restricted to individual workstations. Changepoint will allocate resources to address the problem within eight (8) business hours. - - "Priority Three Problems" are those in which the functionality of the Software is slightly restricted. Changepoint will allocate resources to address the problem within two (2) business days. - - "Priority Four Problems" are minor errors that do not affect the functionality of the Software. Changepoint will allocate resources to address the problem within five (5) business days. Beginning February 15, 2000, Changepoint, as part of Level 3 Support will provide access 24 hours per day, 7 days per week telephone or pager support for Priority One Problems. Corio shall use all commercially reasonable efforts to promptly provide Changepoint with notification of "bugs" encountered in the Software. 22 EXHIBIT D SALES AND MARKETING COOPERATION The parties agree to the following non-binding sales and marketing cooperation efforts: 1. RELATIONSHIP MANAGERS. The parties' Relationship Managers would attempt to meet at mutually agreeable times no less than every quarter to review and coordinate sales efforts and review customer response to the Software and the Corio Services, and address other topics related to this Agreement. 2. JOINT MARKETING PLANS. During the term of this Agreement the parties agree to develop, review and submit to each other new and continuing marketing plans with respect to the Corio Services and the Software, respectively. 3. MARKETING FUND. Within six (6) months after the Effective Date of the Agreement, Corio and Changepoint each would contribute to a marketing fund to be jointly managed by the parties to promote the sale and marketing of the Corio Services and the Software. Each party's initial amount of contribution is Fifty Thousand dollars ($50,000U.S.). 4. PERSONNEL. Each party agrees to assign sufficient sales or marketing personnel to assist in the sales and marketing promotional activity set forth in this Exhibit D. 5. COOPERATION AND PUBLICITY. Upon mutual agreement, Corio and Changepoint may engage in the following activities: joint publicity releases, joint marketing materials, joint marketing calls, joint conference and trade show efforts, and strategy coordination concerned with promoting the Software and the Corio Services in the commercial marketplace. 6. INITIAL CUSTOMERS. Within sixty (60) days after the Effective Date of the Agreement, Corio agrees to use commercially reasonable efforts to obtain orders from two (2) Customers for the Corio Services which include access to the Software. 7. SALES INCENTIVES. During the period of their preferred relationship, the parties will provide their internal and external sales personnel sufficient incentives designed to actively promote and encourage cross selling of the Corio Services and the Software, respectively. 23 EXHIBIT E CUSTOMER LICENSE TERMS AND CONDITIONS 1. THIRD-PARTY BENEFICIARY. Changepoint, Inc. ("Changepoint") shall be a direct and intended third-party beneficiary to this Agreement. 2. AUDIT. Changepoint's independent certified auditors will have the right, exercisable not more than once every twelve (12) months, to inspect upon reasonable notice and during End User's regular business hours, End User's relevant records to verify End User's compliance with the terms of this Agreement and/or Changepoint's compliance with its obligations to Changepoint. 3. NO ADDITIONAL WARRANTY. CORIO MAY PROVIDE THE SOFTWARE TO END USERS WITH ONLY THOSE WARRANTIES GIVEN BY CHANGEPOINT TO CORIO IN THE ATTACHED AGREEMENT. ALL OTHER CONDITIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, ARE DISCLAIMED, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. CORIO SHALL BE SOLELY RESPONSIBLE FOR ANY WARRANTIES IT MAY GIVE TO END USERS WHICH ARE IN ADDITION TO OR OTHERWISE DIFFERENT FROM THOSE WARRANTIES GIVEN BY CHANGEPOINT TO CORIO IN THE ATTACHED AGREEMENT. 4. LIMITATION OF LIABILITY. IN NO EVENT WILL CHANGEPOINT BE LIABLE UNDER SUCH AGREEMENT FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE OR SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIO<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>e control, including but not limited to acts of God, earthquakes, strikes or shortages of materials. 14.8 SUBCONTRACT. Changepoint understands and agrees that Corio shall solely direct the provision of Corio Services and may subcontract certain portions of the operations of the Corio Services to third parties at any time during the term of the Agreement. Corio shall not sublicense its distribution license rights under Section 2.5. 14.9 BANKRUPTCY. The parties hereto agree that Corio, as a licensee of Changepoint's intellectual property, shall be afforded all of the protections afforded to a licensee under Section 365(n) of the United States Bankruptcy Code, as amended from time to time (the "CODE") so that the Trustee or Debtor in Possession, as defined in the Code, will not interfere with Corio's license with respect to the Software as provided in this Agreement, as set forth in Section 365(n) of the Code. The equivalent provisions of Canadian bankruptcy law shall also apply to Corio's rights under this Agreement. 14.10 COMPLETE UNDERSTANDING. This Agreement including all Exhibits, the non disclosure agreement between the parties incorporated herein pursuant to Section 10 of this Agreement and the Statement of Work referenced in this Agreement and incorporated by reference herein, constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement. 14.11 EXPORT CONTROLS AND U.S. GOVERNMENT TRANSACTIONS. Corio agrees that it shall not export or reexport the Software or Documentation outside the United States and Canada without first obtaining permission from applicable authorities in the United States and Canada. Changepoint agrees to reasonably assist Corio in obtaining any required export permissions at no additional cost to Corio. Corio agrees not to provide the Corio Services involving the Software to the United States government without the prior written consent of Changepoint as to the form and substance of the restricted rights legends to be applied to the Software. 14.12 COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and which, if taken together, shall be deemed to constitute one and the same instrument. 18 14.13 CONSTRUCTION. The fact that one party drafted some or all of this Agreement shall not be held against such party in any dispute regarding construction or interpretation of this Agreement or any part of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date. CORIO, INC. CHANGEPOINT, INC. By: _______________________________ By: _____________________________ Name: _____________________________ Name: ___________________________ Title: ____________________________ Title: __________________________ Date: _____________________________ Date: ___________________________ 19 EXHIBIT A SOFTWARE 1. SOFTWARE. Changepoint v 5.1 2. DEMONSTRATION SOF<|eot_id|>
2.371524
2.371524
successful completion by NLS in the US of the Phase III Clinical Trial for the treatment of ADHD in adults (successful completion meaning reaching the primary endpoints of the respective study) USD 500'000 Upon successful completion by NLS in the US of the last Phase III Clinical Trial for the treatment of ADHD in children (successful completion meaning reaching the primary endpoints of the respective study) USD 500'000 3.2.2. Regulatory Milestones Upon price approval of the Licensed Product in Brazil by the relevant agency USD 1'000'000 Upon receipt of a MA by the relevant agency of the Licensed Product in any other country in the Territory USD 1'000'000 3.2.3. Sales Milestones (single payments) Upon reaching annual Net Sales of USD 10 million USD 1'000'000 Upon reaching annual Net Sales of USD 50 million USD 2'000'000 Upon reaching annual Net Sales of USD 75 million USD 4'000'000 Upon reaching annual Net Sales of USD 100 million USD 6'000'000 5 Source: NLS PHARMACEUTICS LTD., F-1, 2/28/2020 License and Development Agreement 3.3. Royalties For the Technology Transfer and as applicable for the License granted by NLS to Eurofarma under article 2.1(iii) hereabove, Eurofarma shall pay to NLS royalty payments (the "Royalties") on the annual Net Sales in the Territory according to the following table: Annual Net Sales in the Territory in USD: Royalty in Percent of Net Sales under 10 million 7% 10 million to < 20 million 8% 20 million to < 30 million 9% 30 million and above 10% Royalty payments shall be paid quarterly within thirty (45) days following the close of the calendar quarter. 3.4. Reports After the first commercial sale of a Licensed Product anywhere in the Territory, Eurofarma shall submit to Licensor quarterly reports on or before 15 days after the last business day of the month following each quarter of the year, and this for each year. Each report (the "Reports") shall cover Eurofarma's (and each Affiliate's, unless the Parties agree that such Affiliates shall submit its reports directly to Licensor) and Distributors' last recently completed quarter and shall show: (i) the gross sales and Net Sales during the last recently completed quarterly period and the Royalties, in USD, payable with respect thereto; (ii) the number of the Licensed Products sold in each country of the Territory; (iii) the method used to calculate the Royalties; and (iv) the exchange rates used to convert the country currency to USD, as applicable. The Licensee shall provide the above information using the form as shown in Appendix A and include information on the date of the first commercial sale of the Licensed Product in each country. If no sales of Licensed Product have been made by the Licensee during a reporting period, Licensee shall report such information in the corresponding Report(s). 3.5. Records and Audits The Licensee shall keep, and shall require its Affiliates and Distributors to keep, accurate and correct records of the Licensed Product used and sold under this Agreement. Such records shall be retained by the Licensee for ten (10) years following a given reporting period. 6 Source: NLS PHARMACEUTICS LTD., F-1, 2/28/2020 License and Development Agreement Subject to a written advance notice of thirty (30) calendar days, all relevant records supporting the preparation of the Reports shall be made available during normal business hours for inspection at the expense of Licensor by Licensor or by a selected representative of Licensor for the sole purpose of verifying the Reports and the accuracy of the payments made or due to Licensor under this Agreement. Such inspector shall not request any other documents or information other than these related to this purpose as determined in its sole discretion and the Licensee shall have no obligation to provide the inspector or Licensor any documents or information not related thereto. In the event that any such inspection shows an underreporting and underpayment by the Licensee to Licensor under the terms of this Agreement in excess of one percent (1%) for any twelve-month (12-month) period, then Licensee shall pay the cost of the audit as well as any additional sum that would have been payable to Licensor had the Licensee reported correctly, plus an interest charge at a rate of ten percent (10%) per year. Such interest shall be calculated from the date the correct payment was due to Licensor up to the date when such payment is actually made by the Licensee. For underpayment not in excess of one percent (1%) for any twelve-month (12-month) period, the Licensee shall pay the difference within thirty (30) days without having to pay for the inspection cost but with interest charge calculated as per the provisions of this Article. 3.6. Payment Terms All payments due to the Licensor according to this Agreement shall be in US dollar, unless the Parties mutually agree otherwise. All payments are exclusive of VAT and other applicable taxes. Royalties earned on Net Sales shall not be reduced by the Licensee for any taxes, fees, or other charges imposed by the government of any country on the payment of royalty income, except that all payments made by Licensee in fulfilment of the Licensors' tax liability in any particular country may be credited against earned Royalties or fees due to the Licensor for that country. The Licensee shall pay all bank charges resulting from the transfer of such Royalty payments. Except for article 3.1 hereabove, payments shall be made by wire transfer to the bank nominated by Licensor, in maximum 45 days after the issuance by NLS of the corresponding invoices, In the event any payment due under this Agreement is not made at the agreed term and/or for the corresponding full amount, a late payment charge of ten percent (10 %) p.a. is due, calculated on a pro-rata basis of the number of days between the date at which the outstanding amount was due for payment to Licensor and the date is actually paid. For the payments under Article 2.1(iii) above, referred to in Article 3.3, Licensor understands that any such payments may only be remitted by Licensee after this (or a corresponding) Agreement has been recorded by the Brazilian Patent and Trademark Office ("INPI") and registered by the Brazilian Central Bank ("Bacen"), as required by Brazilian law. 4. Business Plan Prior to the signing of this Agreement, Eurofarma has prepared and presented to NLS a high-level business plan, focusing on the Lead Countries (the "Preliminar<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>Patents shall mean Brazilian Patent Application No. BR 11 2018 068143 filed on September 6, 2018, and Mexican Patent Application No. MX/a/2018/010864 filed on September 7, 2018, covering multi-layered formulation of Mazindol, including all provisional applications, continuations, divisions, extensions, re-examinations, certificates, reissues and Supplementary Protection Certificates. Phase III Clinical Trial shall mean a controlled clinical study of mazindol CR that aims to establish the therapeutic benefit and safety of mazindol CR in the Field in a larger patient sample in a manner sufficient to be included in the Dossier and obtain one or several Marketing Authorisations to market such Licensed Product in the Territory. 3 Source: NLS PHARMACEUTICS LTD., F-1, 2/28/2020 License and Development Agreement Report(s) shall have the meaning set forth in Article 3.4. Royalty / Royalties shall have the meaning set forth in Article 3.3. Territory The countries of Latin America Trademarks shall have the meaning set forth in Article 7. 2. Grant of License 2.1. Grant of rights Subject to the conditions and limitations set forth in this Agreement, the Licensor hereby grants to the Licensee, and the Licensee hereby accepts, (i) an exclusive, fee-bearing, non-transferable distribution right of the Licensed Product in the Territory during the Term (the "Distribution"), (ii) an exclusive, royalty-free, non-transferable license to the Licensor's Patents and Trademarks to register, import, export, store, handle, commercialize, have commercialized, promote, have promoted, distribute, have distributed, sell and have sold the Licensed Product during the Term, without the right to sublicense (the "License"), and (iii) an exclusive, royalty-bearing, non-transferable license to the Intellectual Property (except Patents and Trademarks ) and the Developed Intellectual Property and a right to obtain the technology transfer of the Know-How to manufacture the Licensed Product in the Territory during the Term, pursuant to the conditions set forth in Article 2.3 below and elsewhere in this Agreement (the "Technology Transfer"), all to register, import, export, store, handle, commercialize, have commercialized, promote, have promoted, distribute, have distributed, manufacture, have manufactured, sell and have sold the Licensed Product during the Term, without the right to sublicense. 2.2. Restrictions Licensee may extend the rights granted herein to register, import, export, store, handle, commercialize, promote, distribute and sell to its Affiliates and to its Distributors, provided that Licensee shall first provide to Licensor a written assurance from each of such Affiliate or Distributor to agree to be bound by, and to strictly comply with, all applicable terms, conditions, and obligations in this Agreement towards Licensor. Licensee shall not be entitled to assign the License or any of its rights under this Agreement or to grant any sub-licenses. 2.3. Technology Transfer After Licensor and Licensee have agreed to move forward to the Technology Transfer phase, the Parties will execute a separate Technology Transfer Agreement, which shall be at arms-length basis and pursuant to the conditions herein. For that purpose, Licensor hereby undertakes to transfer to Licensee all Know-how in order to enable Licensee to implement it in its plant to register, import, export, store, handle, commercialize, have commercialized, promote, have promoted, distribute, have distributed, manufacture, have manufactured, sell and have sold the Licensed Product during the Term. Licensee undertake to use the transferred Know-how solely for the purposes and limits provided in this Agreement. For the avoidance of any doubt, the Know-how does not include Licensee Know-how Licensor shall render to Licensee all technical assistance necessary to enable Licensee to fully implement the Technology Transfer phase in Licensee's premises. The royalties provided in this Agreement already includes such technical assistance, unless the Parties otherwise mutually and in good-faith agree. In such case, the Parties will provide in separate agreement the additional conditions for the Technology Transfer, which shall be at arms-length basis. 4 Source: NLS PHARMACEUTICS LTD., F-1, 2/28/2020 License and Development Agreement 3. License Fees and Milestone Payments 3.1. Upfront Payment Upon signature of this Agreement and no later than 20 days following it, Eurofarma shall pay to NLS, for the rights pursuant to Article 2.1(i), the non-refundable and non-deductible sum of USD 2'500'000 (in words: US dollars two and a half million). 3.2. Milestone payments Upon achievement of each of the milestone events set out below, Eurofarma shall pay to NLS the non-refundable and non- deductible amounts set out below next to such milestone event: 3.2.1. Clinical Milestones Upon<|eot_id|>
9.437668
9.437668
ts to the budget in accordance with the tax legislation (xiv) during the term of this Contract, observe all provisions of this Contract and other terms and conditions agreed upon with the Company. 5. COMPANY'S FEE AND PAYMENT TERMS 5.1 The Principal shall pay the Company a fee of $1.00 (one dollar), inclusive of VAT, per one net tonne of Commodity shipped pursuant to this Contract. 5.2 The Principal shall pay the commission fee for each delivered batch of Commodity to the Company's account within 30 (thirty) banking days after the Delivery Date. 5.3 The payment shall be made in accordance with the invoice presented by the Company and the tax invoice (original or a fax copy) in Tenge at the official exchange rate of the National Bank of the Republic of Kazakhstan effective on the Delivery Date in accordance with item 4.1.vii. 6. PERIOD AND TERMS OF LOADING 6.1 Commodity will be shipped by the Company in batches during the period from the Effective Date through the term of this Contract subject to (i) the Principal having the requisite supplies of Commodity and (ii) the Principal having entered into the Offtake Agreement or another Agreement with the Buyer. 5 6.2 The Company shall have a right to deliver Commodity to the Buyer with a permissible +/-5% deviation from the number of batches of Commodity. 7. OWNERSHIP RIGHT AND RISK OF ACCIDENTAL LOSS 7.1 Ownership right<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>eum Contract" means that certain Agreement for Exploration, Development and Production of Oil in Karakuduk Oil Field in Mangistau Oblast of the Republic of Kazakhstan between the Ministry of Oil and Gas Industries of the Republic of Kazakhstan for and on behalf of the Government of the Republic of Kazakhstan and the Principal. "License" means License No. MG#249 (Oil) dated 25 June 1995 (as subsequently amended) granted to the Principal by the Government of the Republic of Kazakhstan. "Principal" is defined in the Preamble to this Contract. "Principal Period" means the period from the Effective Date to the CPC Pipeline Operational Date. "REBCO" means Commodity that satisfies the specifications of TU-39-1623-93 "Russian oil delivered for export; Specifications" for export to the far abroad. 2 "Secondary Period" means the period from the CPC Pipeline Operational Date to the date of termination of this Contract (inclusive). "STASCO" means Shell Trading International Limited acting through its agent Shell International Trading and Shipping Company Limited. "Tenge" means official currency of the Republic of Kazakhstan. 2.2 In this Contract, unless the context otherwise requires: i. Headings are used for convenience only and do not affect the interpretation of this Contract; ii. any expression, which means individual, includes any company, Partnership, trust, joint venture, association, corporation, or other corporate organization and vice versa; iii. references to Articles and Sections, unless otherwise expressly provided in this Contract, are references to articles and sections of this Contract; iv. except as otherwise expressly provided, any reference to a document includes an amendment or supplement to, or replacement or renovation of, that document; v. a reference to any Party to this Agreement and to any other document includes that Party's legal successors and assigns; vi. words, which mean the singular, also include the plural and vice versa; vii. the word "including" means "including without limitation"; viii. a "business day" means a day (other than a Saturday or a Sunday) on which banks are open for ordinary banking business in London; ix. "tonne" is a metric ton; and x. a "year" means a calendar year, a "quarter" means a calendar quarter, and a "month" means a calendar month. 3. QUALITY 3.1 Unless otherwise agreed by the Parties, the Principal shall at all times deliver to the Company Karakuduk Commodity pursuant to this Contract. The Company shall ensure that (i) during the Principal Period, the quality of Commodity delivered at the relevant delivery point shall be REBCO, and (ii) during the Secondary Period, the quality of Commodity delivered at the CPC Terminal shall be Karakuduk Commodity for segregated batch deliveries or shall be CPC Blend for deliveries for which segregated batch delivery is not available. 4. OBLIGATIONS OF THE PARTIES 4.1 At all times during the term of this Contract, the Company shall: (i) Assist in obtaining required&sbsp;official export permissions (certificate of origin of the Commodity at place the load output, customs declaration on Commodity output) for release of the batch of Commodity being delivered from the customs territory of the Republic of Kazakhstan; 3 (ii) accept Karakuduk Commodity from the Principal at Metering Point 719 (PSP Samara of the Western branch office of KazTransOil) and arrange its transportation for export in accordance with the Delivery Basis; (iii) execute all customs formalities to carry out transit transportation of the batch of Commodity through the territory of Russian Federation and the countries of the C.I.S.; (iv) procure sending of a route telegram to AK Transneft; (v) procure delivery of the indicated Commodity to the Buyer on the Delivery Basis, less operating losses in transportation of the Commodity, that are charged to the Principal's account; (vi) procure berthing for the Buyer's tanker and delivery of the batch of Commodity to such tanker through the Company's agents in the relevant port; (vii) timely present to the Principal the Acts of acceptance-delivery of the Commodity (oil)/Bills of Lading executed at the Delivery Basis. (During the Principal Period, Acts of acceptance-delivery executed on the DAF basis (Adamovo, Fenyeshlitke or Budkovce) shall be presented in one copy, Bills of Lading and sets of shipping documents attached to them executed on the FOB basis (Odessa, Novorossiysk or Ventspils) shall be presented in the number of copies specified in the Buyer's instructions, and during the Secondary Period, such documents as may be required at that time executed on the FOB CPC Terminal basis shall be presented according to the list and in the number of copies as it would be agreed between Principal, Company and CPC; (viii) provide the Principal with information on the status of execution of this Contract; (ix) on the Principal's request, prepare analyses of the Buyer's calculations of prices; (x) cooperate with the Principal, to render, if possible, such assistance that can prove necessary for the Principal to perform its obligations under the Offtake Agreement or any other contract with the Buyer regarding Commodity; and (xi) during the term of this Contract, observe all provisions of this Contract and other terms and conditions agreed upon with the Principal. 4.2 At all times during the term of this Contract, the Principal shall: (i) Deliver Karakuduk Commodity to the Company at Metering Point 719 (PSP Samara of the Western branch office of KazTransOil) in the amount determined in accordance with item 1.2 of this Agreement; (ii) independently conclude contracts with the Buyer on selling Crude Oil for export and submit a copy of each such contract with the Buyer to the Company 5 days before the beginning of the relevant Delivery Month; (iii) obtain, at its own expense, required official export permissions (certificate of origin of the Commodity at place of the load output, customs declaration on Commodity output) for release of the batch of Commodity being delivered from the customs territory of the Republic of Kazakstan and deliver them before the 5th day of the Delivery Month; (iv) if the Delivery Basis is DAF, provide the Company before the 5th day of the Delivery Month with a copy of confirmation from AK Transneft on its readiness to accept the agreed batch of Commodity from coordinators at the relevant directions; 4 (v) if the Delivery Basis is FOB, to provide the Company and the Company's agent in the relevant port 5 days before the agreed upon loading&bbsp;period (Laycan) with the Buyer's instructions on filling in the shipping documents, including name of the vessel, its characteristics, loading period (Laycan), lay time and other necessary data; (vi) make a 100% pre-payment for transportation of the batch of Commodity through the territory of Russian Federation and the CIS countries, in accordance with the Payment Order of AK Transneft; (vii) pay the additional expenses if the transport tariffs are increased, providing the Company presents the appropriate documents; (viii) reimburse the Company for the cost of execution of the customs declaration at the Energy customs office of the RF in accordance with the Company's invoice; (ix) reimburse the Company for all expenses reasonably incurred in connection with the performance by the Company of its obligations under this Contract within 30 (thirty) days of delivery to the Principal of proper invoices and other supporting documents for such expenses; (x) pay the Company's fee for the services rendered under Article 5 hereof, in accordance with the invoice and tax invoice; (xi) provide copies of all payment documents; (xii) pay all transportation and other expense of KazTransOil on the territory of Kazakhstan under its contract with KazTransOil; (xiii) to make all necessary payments to the budget of the Republic of Kazakhstan related to excise taxes, VAT and other obligatory paymen<|eot_id|>
8.473576
8.473576
Franchisee elects to be represented by counsel of the Franchisee's own choosing. The Franchisee shall not institute any legal action or other kind of proceeding based upon Burger King Marks or the Burger King System without the prior written approval of BKC. 11.1.8 REGISTERED MARKS. BKC represents that the marks listed on Exhibit A are registered or applied for, but makes no expressed or implied warranty with respect to the validity of any of the Burger King Marks. The Franchisee accepts that the Franchisee may conduct business utilizing some Burger King Marks which have not been registered and that registration may not be granted for the unregistered marks and that some of the Burger King Marks may be subject to use by third parties unauthorized by BKC. 11.1.9 FRANCHISEE NAME. In the adoption of a trade, corporate or partnership name, the Franchisee shall not use any of the Burger King Marks, any variations or abbreviations or any words confusingly similar to any of the Burger King Marks. 17 11.1.10 REGISTRATION OF AGREEMENT. If local law requires the registration or recordation of this Agreement with any local governmental agency, administrative board or banking agency, Franchisee shall request BKC's consent to do so. If BKC grants its consent, Franchise shall effectuate such registration(s) or recordation(s) at its sole cost and expense in strict compliance with local laws as soon as possible. 11.2 INDEPENDENT CONTRACTOR. 11.2.1 NO AGENCY. The franchisee is an independent business entity and is not an agent, partner, joint venture, representative, or employee of BKC, and no express or implied fiduciary relationship exists between the parties. The Franchisee shall not attempt to bind or obligate BKC in any way nor shall the Franchisee represent that the Franchisee has any right to do so. BKC shall have no control over the terms and conditions of employment of the Franchisee's employees. 11.2.2 PUBLIC NOTICE OF INDEPENDENCE. In all public records and in the Franchisee's relationship with other persons, on stationery, business forms and cheques, the Franchisee shall indicate the independent ownership of the Franchised Restaurant and that the Franchisee is a licensee of BKC. The Franchisee shall exhibit on the Location in such places as may be designated by BKC, a notification that the Franchised Restaurant is operated by an independent operator under license from BKC. 12. UNFAIR COMPETITION. The Franchisee agrees, during the term of this Agreement and thereafter, not to directly or indirectly engage in the operation of any restaurant, except as licensed by BKC, which utilizes or duplicates the Burger King System or any part thereof. 13. INSURANCE, INDEMNIFICATION. 13.1 GENERAL LIABILITY INSURANCE. Franchisee agrees to carry at its expense during the Term of this Agreement Comprehensive General Liability insurance, including Products Liability and Broad Form Contractual Liability, in an amount which is at all times the local equivalent of not less than One Million U.S. Dollars (U.S. $1,000,000.00) per occurrence for bodily injury and Five Hundred Thousand U.S. Dollars (U.S. $500,000.00) per occurrence for property damage, or in such increased amounts as BKC may reasonably request from time to time during the Term of this Agreement. Each policy will name BKC, and its subsidiaries, affiliated and parent companies as an additional insured, and will provide hat the policy cannot be canceled without thirty (30) days prior written notice to BKC, will insure against the liability of BKC for both its and Franchisee's acts or omissions, and will insure the contractual liability of Franchisee under paragraph 13.3 Additionally, Franchisee agrees to carry, at Franchisee's expense, umbrella coverage in an amount which is at all times the equivalent of One Million U.S. Dollars (U.S. $1,000,000) over the basic 18 Comprehensive General Liability insurance per restaurant; except that if Franchisee owns more than ten (10) Burger King Restaurants, the umbrella coverage applicable to all such restaurants need not exceed an mount which is at any time in excess of the equivalent of Ten Million U.S. Dollars (U.S. $10,000,000). The insurance afforded by the policy or policies respecting liability shall not exclude claims, actions or demands brought in the United States or anywhere else outside the country in which the Franchised Restaurant is located and shall not be limited in any way by reason of any insurance which may be maintained by BKC prior to the Commencement Date, Franchisee shall furnish to BKC Certificates of Insurance reflecting that the insurance coverage is in effect pursuant to the terms of this Agreement. All policies shall be renewed, and a renewal Certificate of Insurance mailed to BKC at its main office, or at such other location as may be specified by BKC prior to the expiration date of the policies. This<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>cost of BKC as may be necessary to perfect such assignment. 11.1.7 INFRINGEMENT, ETC. The Franchisee shall immediately notify BKC of all infringements or imitations of the Burger King Marks which come to the Franchisee's attention, and all challenges to the Franchisee's use c f any of the Burger King Marks. BKC will take such action as it in its sole discretion deems appropriate to prevent unauthorized persons from using the Burger King Marks. The Franchisee agrees to cooperate in the prosecution of any action to prevent the infringement, imitation, illegal se or misuse of the Burger King Marks or the Burger King System and agrees to be named as a party in any such action if so requested by BKC. BKC agrees to bear the legal expenses and costs incidental to the Franchisee's participation in such action except for the cost and expenses of the Franchisee's personal legal counsel if the<|eot_id|>
3.388179
3.388179
Agreement and all pertinent Schedules and Exhibits hereto. Such information security program must be approved by Supplier's board of directors or equivalent executive management prior to the Effective Date thereof and annually thereafter. It must describe Supplier's network infrastructure and security procedures and controls that protect Confidential Information on a basis that meets or exceeds the Bank Security Requirements. 1.21 Installation Date - the date the Software has been properly installed. 1.22 Installation Site - the building or complex of buildings at which Bank of America installs the Software. 1.23 Intellectual Property Rights - all intellectual property rights throughout the world, including copyrights, patents, mask works, trademarks, service marks, trade secrets, inventions (whether or not patentable), know how, authors' rights, rights of attribution, and other proprietary rights and all applications and rights to apply for registration or protection of such rights. 1.24 Licensed Programs - the computer programs and all Documentation for such computer programs described in each Product License Schedule (including Source Code for such computer programs unless expressly stated otherwise in such Product License Schedule). 1.25 Maintenance Fees - the fees for Maintenance Services set forth in each Product License Schedule. 1.26 Maintenance Period - unless otherwise specified in a Product License Schedule, the Maintenance Period shall be twenty-four (24) hours per day, seven (7) per week, including Bank of America holidays. 1.27 Maintenance Services - the services described in SCHEDULE D or in any Product License Schedule or Order with respect to any Licensed Program including telephone consultation, online and on-site technical support, Error correction and the provision of Updates. Proprietary to Bank of America Page 2 vTIP2010 Source: CARDLYTICS, INC., S-1, 1/12/2018 1.28 Object Code - machine-readable computer instructions that can be executed by a computer. 1.29 Operative - conforming in all material respects to performance levels and functional specifications described in the Program Materials and in this Agreement. 1.30 Order - Product License Schedule, purchase order, work order, Customization Schedule or other written instrument executed, or electronic transmissions originated by, an authorized officer of Bank of America Supply Chain Management directing Supplier in the provision of services substantially conforming to a form provided to Supplier by Bank of America. Unless otherwise provided in writing, the business terms in each Order relating to description of the Licensed Program, pricing, and performance standards shall apply only to such Order. 1.31 Party - Bank of America or Supplier. 1.32 Platform - the computer equipment and operating system which can execute the Object Code. 1.33 Product or Products equipment, Software, firmware, system designs, Program Materials, Customizations, Maintenance Services, Documentation, training and any other goods or services this Agreement calls for Supplier to furnish or Supplier furnishes. Unless expressly otherwise provided, Product or Products shall also mean any separate portion or part of the Product or Products that Supplier furnishes. 1.34 Product License Schedule - a document substantially in the form of SCHEDULE A attached hereto. 1.35 Production Installation Date - the fifth consecutive Business Day upon which the Software has been used successfully to process Bank of America's work commercially in production. 1.36 Program Materials - Supplier's proposals to Bank of America, Documentation, specifications and any other Documentation delivered in connection with the Software, including without limitation materials described in each Product License Schedule. 1.37 Records - documentation of facts that include normal and customary documentation of facts or events for an industry, specific deliverables as designated, emails determined to be "records" because of the business or litigation purpose, any records documenting legal, regulatory, fiscal or administrative requirements. 1.38 Relationship Manager(s) -the employee designated by a Party to act on its behalf with regard to matters arising under this Agreement who shall be the person the other Party shall contact in writing regarding matters concerning this Agreement. 1.39 Repair Period - the time period commencing when Bank of America reports an Error to Supplier and continuing for four (4) hours or such other period as may be specified In a Product License Schedule. 1.40 Representative an employee, officer, director, or agent of a Party. 1.41 Software - the Licensed Programs and Object Code licensed by Supplier pursuant to a Product License Schedule that produces the results described in the Program Materials, together with the Documentation, all Corrections, Customizations and Updates and any Upgrades acquired by Bank of America pursuant to this Agreement, and, if licensed to Bank of America in this Agreement, the Source Code or other software programs offered by Supplier to the public on Supplier's Web site and used by Bank of America, notwithstanding any associated EULA, GPL or other license terms, any Updates thereto, and any related user manuals or Documentation. Proprietary to Bank of America Page 3 vTIP2010 Source: CARDLYTICS, INC., S-1, 1/12/2018 1.42 Source Code - the human-readable code from which a computer can compile or assemble the Object Code of a computer program, together with a description of the procedure for generating the Object Code. 1.43 Subcontractor - a third party to whom Supplier has delegated or subcontracted any portion of its obligations set forth herein. 1.44 Supplier Customizations - Customizations listed on a Customization Schedule, which Supplier shall own and license to Bank of America under the terms of this Agreement. 1.45 Supplier Security Controls those controls implemented by Supplier as part of its Information Security Program that address each of the Bank Security Requirements, as modified from time to time. 1.46 Term - the initial term of the Agreement or any renewal or extension. 1.47 Time and Materials Rates - the rate<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>oes not include any record that does not identify an individual. 1.11 Correction - a modification to Software to resolve one (1) or more Errors. 1.12 Customer Information - any record containing information about a customer, its usage of Bank of America's services, or about a customer's accounts, whether in paper, electronic, or other form that is maintained by or on behalf of Bank of America for a business purpose. 1.13 Customizations - modifications to the Licensed Programs and new coding made at the request or Bank of America. 1.14 Customization Schedule - a document substantially In the form of SCHEDULE B attached hereto. 1.15 Customization Status Report - a written report prepared by Supplier that describes the status of the development and implementation, describes problems and the steps underway to resolve them, provides a report of hours expended to date for each Customization, and reports all other information necessary or desirable for Bank of America management to understand the status of the project to develop Customizations. Proprietary to Bank of America Page 1 vTIP2010 Source: CARDLYTICS, INC., S-1, 1/12/2018 1.16 Delivery Date - the date on which Bank of America actually receives the Software from Supplier. 1.17 Documentation - any and all: (i) materials created by or on behalf of Supplier that describe or relate to the functional, operational or performance capabilities of the Software, regardless of format; (ii) user, operator, system administration, technical, support and other manuals, including but not limited to functional specifications, help files, flow charts, logic diagrams, programming comments, acceptance plan, if any, and portions of licensor's web site that in any way describe the Software; (iii) responses and other materials submitted by Supplier in response to any Bank of America Request for Information ("RFI"), Request for Proposal ("RFP") or Request for Quotation ("RFQ"); and (iv) updates, changes and corrections to any of the forgoing that may be made during the Term of this Agreement. 1.18 Effective Date - the date set forth on the signature page on which this Agreement takes effect. 1.19 Error - an instance of failure of Software to be Operative. An Error is a Class 1 Error if it renders the Software unusable for its intended purpose. An Error is a Class 2 Error if the Software is still usable for its intended purpose, but such use is seriously inconvenient and the value to Bank of America of the use of the Software is substantially reduced. All other Errors are Class 3 Errors. 1.20 Information Security Program - the documents that describe how Supplier will provide services to Bank of America in a manner that complies with the confidentiality and information security requirements of this <|eot_id|>
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2.859026
under section 9008 of the Affordable Care Act with respect to any Product sold. 8.3.2 Subject to this Section 8.3.2, Xencor will pay any and all taxes, including withholdings, levied on account of any payments made to it under this Agreement. If any taxes are paid or required to be withheld by Aimmune for the benefit of Xencor on account of any payments payable to Xencor under this Agreement, Aimmune will (i) deduct such taxes from the amount of payments otherwise due to Xencor, (ii) timely pay the taxes to the proper taxing authority, (iii) send proof of payment to Xencor within [***] ([***]) days following such payment and (iv) cooperate with Xencor in any way reasonably required by Xencor to obtain available reductions, credits or refunds of such taxes. Notwithstanding the foregoing, if (a) Aimmune assigns its rights or obligations or delegates its rights under this Agreement, (b) as a 24 Source: AIMMUNE THERAPEUTICS, INC., 8-K, 2/5/2020 result of such assignment or delegation, Aimmune (or its assignee) is required by Applicable Law to withhold taxes from or in respect of any amount payable under this Agreement, and (c) such withholding taxes exceed the amount of withholding taxes that would have been applicable but for such assignment or delegation, then any such amount payable shall be increased to take into account such withholding taxes as may be necessary so that, after making all required withholdings (including withholdings on the additional amounts payable), the payee receives an amount equal to the sum it would have received had no such increased withholding been made. Each Party shall cooperate with the other Party in any way reasonably requested by the other Party to minimize the withholding tax implications of any such assignment or delegation. 8.3.3 Aimmune shall be responsible for all Value Added Taxes ("VAT"), if any, attributable to transactions contemplated by this Agreement without any offset or reimbursement from Xencor. Xencor shall cooperate with Aimmune in any way reasonably requested by Aimmune to obtain available reductions, credits or refunds of any VAT amounts attributable to transactions contemplated by this Agreement. 8.3.4 [***]. 8.4 Records; Audits. During the Term and for [***] ([***]) years thereafter, Aimmune shall keep, and shall cause its Affiliates and Sublicensees to keep and provide to Xencor, complete and accurate records pertaining to the sale or other disposition of Product in sufficient detail to permit Xencor to confirm the accuracy of payments due hereunder. Xencor shall have the right, upon [***] ([***]) days' prior written notice to Aimmune, to cause an independent, certified international public accounting firm reasonably acceptable to Aimmune or reasonably acceptable to its Affiliates or Sublicensees, as applicable, to audit such records during Aimmune's, or its Affiliate's or Sublicensees', as applicable, normal business hours to confirm the number of Product units sold, the gross sales and Net Sales of Product, the royalties payable, the method used to calculate the royalties payable, and the exchange rates used in accordance with Section 8.2. The audit shall be limited to pertinent records kept by Aimmune and its Affiliates and Sublicensees for any year ending not more than [***] ([***]) months prior to the date of the written notice. An audit under this Section 8.4 shall not occur more than [***] in any Calendar Year, except in the case of any sub<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>ed in this Section 7.2 following achievement (and only upon the first occurrence) of the corresponding milestone event for a Product. Aimmune shall promptly notify Xencor in writing of, but in no event later than [***] ([***]) days after, the achievement of each such milestone event with respect to a Product. Aimmune shall pay the applicable milestone payment by wire transfer of immediately available funds within [***] ([***]) days after the achievement (and only upon the first occurrence) of the applicable milestone event into an account designated by Xencor in writing. Each such milestone payment is nonrefundable and noncreditable against any other payments due hereunder. 21 Source: AIMMUNE THERAPEUTICS, INC., 8-K, 2/5/2020 Milestone Event Milestone Payment Development Milestone [***] $ [***] [***] $ [***] [***] $ [***] [***] $ [***] [***] $ [***] [***] $ [***] Sales Milestones [***] $ [***] [***] $ [***] [***] $ [***] [***] $ [***] 7.3 Royalty Payments. 7.3.1 Product. On a Product-by-Product and country-by-country basis during the Royalty Term applicable to such Product and such country, Aimmune shall pay to Xencor the following royalties on Net Sales of Products, subject to Section 7.3.2: Aggregate Annual Net Sales Royalty Rate [***] [***]% [***] [***]% [***] [***]% [***] [***]% [***] [***]% [***]. 22 Source: AIMMUNE THERAPEUTICS, INC., 8-K, 2/5/2020 7.3.2 Royalty Reductions. (a) No Valid Claim. On a country-by-country and Product-by-Product basis, if at any time during the Royalty Term with respect to such country and such Product, such Product is not Covered by any Valid Claim of a [***], the royalty rate applied to Net Sales of such Product shall be the royalty rate in Section 7.3.1 reduced by [***] percent ([***]%) for so long as during the Royalty Term such Product is not Covered by a Valid Claim of a [***] in such country. (b) Third Party Intellectual Property. Aimmune shall have the right (but not the obligation), at its own expense (subject to the reduction provided for by this Section 7.3.2(b)), to obtain any licenses from any Third Parties that are not Sublicensees of Aimmune with respect to a Product in such country under any issued Patents that would be infringed by the practice of Xencor Technology licensed under Section 2.1 with respect to a given Product in a particular country (each such Patent, a "Third Party Patent"). If Aimmune obtains such a license to a Third Party Patent, Aimmune shall be entitled to credit [***] percent ([***]%) of the royalties paid to such Third Party during a Calendar Quarter against the royalty payment otherwise payable by Aimmune to Xencor pursuant to this Section 7.3 with respect to such Product and such country in such Calendar Quarter. Notwithstanding the foregoing, Aimmune shall have no right to reduce payments due to Xencor under this Agreement by any amount paid to [***] in connection with the Upstream Agreement or any other agreement entered into between Aimmune and [***]. (c) Generic Competition. On a country-by-country and Product-by-Product basis, if at any time during the Royalty Term with respect to such country and such Product there is one or more Generic Product(s) with respect to such Product being sold for [***]) consecutive Calendar Quarters, then [***] for such country and such Product, the royalty rate for such Product shall be reduced, after giving effect to any reduction applicable to such Product in such country pursuant to [***], on a Calendar Quarter basis as follows: (i) if the cumulative Net Sales of such Product in such country during such Calendar Quarter are equal to or less than [***] percent ([***]%), but are greater than [***] percent ([***]%), of the Baseline Quarter Net Sales, then the royalty rate will be reduced for such Calendar Quarter by [***] percent ([***]%); and (ii) if the cumulative Net Sales of such Product in such country during such Calendar Quarter are less than [***] percent ([***]%) of the Baseline Quarter Net Sales of the Baseline Quarter Net Sales, then the royalty rate for such Calendar Quarter will be reduced by [***] percent ([***]%). provided, that, for clarity, on a country-by-country and Product-by-Product basis, there will be no royalty rate reduction with respect to a given country and Product pursuant to this Section 7.3.2(c) with respect to the initial [***] ([***]) consecutive Calendar Quarter periods during which Generic Product entry with respect to such Product and such country is being established. 23 Source: AIMMUNE THERAPEUTICS, INC., 8-K, 2/5/2020 (d) Royalty Floor. Notwithstanding any provision set forth in this Agreement to the contrary, none of the permitted reductions to royalties provided in this Section 7.3.2 will reduce any royalty payment payable in a given Calendar Quarter with respect to Net Sales of any Product in any country during the Royalty Term by more than [***] percent ([***]%) of the royalties otherwise owed to Xencor pursuant to Section 7.3.1. ARTICLE 8 PAYMENT; RECORDS; AUDITS 8.1 Royalty Payments and Reports. The royalty payments due by Aimmune to Xencor under Section 7.3 shall be calculated, reported and paid for each Calendar Quarter within [***] ([***]) days after the end of each Calendar Quarter and shall be accompanied by a report setting forth Net Sales of Products by Aimmune in sufficient detail to permit confirmation of the accuracy of the royalty payment made, including the gross sales and Net Sales of each Product, on a country-by-country basis, and the exchange rates used in accordance with Section 8.2. Without limiting the generality of the foregoing, Aimmune shall require its Affiliates and other Aimmune Agreement Entities to account for its Net Sales and to provide such reports with respect thereto as if such sales were made by Aimmune. 8.2 Manner and Place of Payment. When conversion of payments from any currency other than U.S. Dollars is required, such conversion shall be at an exchange rate equal to the rates of exchange for the currency of the country from which such payments are payable as published by The Wall Street Journal, Western U.S. Edition, on the last Business Day of the Calendar Quarter in which the applicable sales were made in such country. All payments hereunder shall be payable in U.S. Dollars. All payments owed under this Agreement shall be made by wire transfer in immediately available funds to a bank and account designated in writing by Xencor, unless otherwise specified in writing by Xencor. 8.3 Taxes. 8.3.1 The Parties acknowledge and agree that it is their mutual objective and intent to minimize, to the extent feasible, taxes payable with respect to their collaborative efforts under this Agreement to cooperate and coordinate with each other to achieve such objective. For the avoidance of doubt, as between the Parties, Aimmune shall be responsible for any Branded Prescription Drug Fees that may be levied<|eot_id|>
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nt of the Parties with respect to the subject matter hereof and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties. 7 │ Page Source: CLICKSTREAM CORP, 1-A, 3/30/2020 25. HEADINGS. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. ********************************************************************************************** EXHIBIT A A. PURPOSE OF APPLICATION SYSTEM. To create a new iOS / Android Native app and a web responsive site to allow users to connect with each other inside a unique social betting platform. The Platform is social trivia, initially sports trivia and other trivia contests leading to peer to<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>t of the successors and assigns of the Parties. 18. FORCE MAJEURE. A Party shall be not be considered in breach of or in default under this Agreement on account of, and shall not be liable to the other Party for, any delay or failure to perform its obligations hereunder by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that Party's reasonable control (each a "Force Majeure Event"); provided, however, if a Force Majeure Event occurs, the affected Party shall, as soon as practicable: 6 │ Page Source: CLICKSTREAM CORP, 1-A, 3/30/2020 (a) notify the other Party of the Force Majeure Event and its impact on performance under this Agreement; and (b) use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder. 19. NO IMPLIED WAIVER. The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party's right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation. 20. NOTICE. Any notice or other communication provided for herein or given hereunder to a Party hereto shall be in writing and shall be given in person, by overnight courier, or by mail (registered or certified mail, postage prepaid, return-receipt requested) to the respective Parties as follows: If to the Client: Contact: Frank Magliochetti, CEO Company Name: Clickstream Corp. Main Address: 1801 Century Park East Suite 1201 Los Angeles, CA 90067 If to the Developer: Contact: Ivan Saroka, CEO Company Name: InfinixSoft Global LLC Main Address: 360 NE 75th St. Suite #127, 33138, Miami, Florida 21. GOVERNING LAW. This Agreement shall be governed by the laws of the state of Florida. If litigation results from or arises out of this Agreement or the performance thereof, each Party shall be responsible for its own attorneys' fees, court costs, and all other expenses, whether or not taxable by the court as costs. 22. COUNTERPARTS/ELECTRONIC SIGNATURES. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature. 23. SEVERABILITY. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein. 24. ENTIRE AGREEMENT. This Agreement constitutes the final, complete, and exclusive statement of the agreeme<|eot_id|>
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e deemed a continuing waiver or excuse of the same or any other duty or obligation owed by the other. 8.9 Interpretation. In the event any claim is made by any party relating to any conflict, omission or ambiguity in this Agreement, no presumption or burden of proof or persuasion shall be implied by virtue of the fact that this Agreement was prepared by or at the request of a particular party or that party's counsel. Reference to "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation." 8.10 Captions. Captions of sections of this Agreement are included for reference only, shall not be construed as part of this Agreement and shall not be used to define, limit, extend or interpret the terms hereof. 8.11 Currency. Unless otherwise agreed by the parties in writing, all payments required to be made under this Agreement shall be made in United States Dollars via cash, check, wire transfer, or other immediately available funds. The remitting party shall pay at its own expense all charges and expenses associated with the other party's receipt of such payment, including but not limited to credit card transaction fees. 8.12 Remedies Not Exclusive. No remedy conferred by any of the specific provisions of this Agreement is intended to be exclusive of any other remedy and each and every right and remedy hereunder is cumulative with each and every other right and remedy herein or in any other agreement between the parties or under applicable law. 8.13 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original and all of which together shall constitute one and the same instrument. 8.14 No Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES, HOWEVER CAUSED. 8.15 Successors. Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. 8.16 No Joint Venture. Nothing contained herein shall be construed to deem the Parties in the relationship of partners or joint venturers, and no party hereto shall have any power to obligate any other party hereto in any manner whatsoever, except as expressly provided for herein. 8.17 Indemnity. Zanotti agrees to indemnify, defend and hold Aura, including its employees, agents and affiliates, harmless from and against any and all payments, damages, demands, claims, losses, expenses, costs, obligations and liabilities (including reasonable attorney's fees and costs), which arise out of, result from or are related to: (i) any breach by Zanotti of any provision contained in this Agreement, including without limitation any obligation, representation, warranty or covenant herein; (ii) any occupational injury or illness sustained by any employee or agent of Zanotti to the extent claims are made against, or held to be payable by Aura; (iii) any applicable sales or other taxes due from or on behalf of Zanotti regardless of whether such taxes must be collected by Aura on behalf of the taxing authority and regardless of whether Zanotti shall challenge the assessment or amount of such taxes (iv) any negligent or willful act or omission or violation of any contractual arrangement of Zanotti or any of Zanotti's affiliates, officers, directors, agents or employees of each, in connection with its or their performance relating to this Agreement; or (v) Zanotti's agreements, if any, with any other third parties. Aura agrees to indemnify, defend and hold Zanotti, including its employees, agents and affiliates, harmless from and against any and all payments, damages, demands, claims, losses, expenses, costs, obligations and liabilities (including reasonable attorney's fees and costs), which arise out of, result from or are related to the breach by Aura of any representation, warranty or covenant contained in this Agreement. Either party seeking indemnification under this Agreement (the "Indemnified Party") shall give notice to the party required to provide indemnification hereunder<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|> copying all books and records that pertain to performance of and compliance with obligations, warranties and representations under this Agreement. 7.4 Effect of Termination. On and after termination of this Agreement, whether pursuant to the provisions of Section 7.3 of otherwise: Article 8 General Provisions 8.1 Entire Agreement. This Agreement, including any Exhibits hereto, represents the entire agreement between the Parties on the subject matter hereof and supersedes all prior discussions, agreements and understandings of every kind and nature between them. This Agreement may be modified, amended, rescinded, cancelled or waived, in whole or in part, only by written instrument signed by all of the Parties hereto. 8.2 Notice. All notices under this Agreement shall be in English and shall be in writing and given by airmail, certified or registered, postage prepaid, return receipt requested, cable, telex or facsimile, promptly confirmed by airmail, addressed to the parties at the addresses immediately below their respective signatures hereto, or to such other address of which either party may advise the other in writing. Any notice given by airmail shall be deemed received by the addressee three (3) business days from the date of mailing. All other forms of notice will be deemed given when sent. 8.3 Force Majeure. Neither party shall be in default hereunder by reason of any failure or delay in the performance (either in whole or in part) of any obligation under this Agreement (other than the payment of money) where such failure or delay arises out of any cause beyond the reasonable control and without the fault or negligence of such party (an "Event of Force Majeure"). Such causes shall include, without limitation, storms, floods, other acts of nature, fires, explosions, riots, war, terrorism or civil disturbance, strikes or other labor unrests, embargoes, shortage or failure in supply of raw materials from the then contemplated sources of supply and no other source or supply can be located or obtained with commercially reasonable (a) The Parties shall immediately cease all advertising and sale of the AETRU System although Aura may fill any orders received before the date of termination, subject to the provisions hereto; (b) NEITHER PARTY SHALL NOT BE LIABLE TO THE OTHER FOR ANY DAMAGES, LOSSES OR EXPENSES RESULTING FROM ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT ARISING FROM ANY CLAIMS ASSERTED WHICH ARE BASED UPON LOSS OF GOODWILL, PROSPECTIVE PROFITS OR ANTICIPATED ORDERS, OR ON ACCOUNT OF ANY EXPENDITURES, INVESTMENTS, LEASES OR COMMITMENTS MADE BY SUCH PARTY; (c) All rights granted to either party hereunder shall forthwith and without further act or instrument, be assigned and revert to the original party. In addition, each party will execute any instruments requested by the other which are necessary to accomplish or confirm the foregoing. Any such assignment, transfer or conveyance shall be without consideration other than the mutual agreements contained herein diligence and effort, and other governmental actions or regulations which would prohibit either party from ordering or furnishing Products or from performing any other aspects of the obligations hereunder. Within ten (10) days from the date of commencement of an Event of Force Majeure, the party affected by such an event shall advise the other party (the "Other Party") of the date when such delay in performance commenced, and the reasons therefore as enumerated in this Agreement; likewise, within ten (10) days after the delay ends, the party affected by such an Event of Force Majeure shall advise the Other Party of the date when such delay ended, and shall also specify the redetermined time by which the performance of the obligation hereunder is to be completed. In the event that the Event of Force Mejeure continues for a period of sixty (60) days then the Other Party shall have the right to elect to terminate this Agreement upon ten (10) days notice to the party affected by such an event. 8.4 Severability. In the event any one or more of the provisions contained in this Agreement are deemed illegal or unenforceable, in whole or in part, the remaining provisions, and any partially unenforceable provisions to the extent enforceable, shall nevertheless be binding and enforceable. In the event that any act, regulation, directive, or law of a government having jurisdiction and respect of this Agreement, including its departments, agencies or courts, should make it impossible or prohibit, restrain, modify or eliminate any act or obligation of either party under this Agreement, the non-affected party shall have the right, at its option, to suspend this Agreement or the parties may, at their mutual agreement, make such modifications therein as may be necessary. 8.5 Assignment. Except as expressly provided for herein, neither party may assign or otherwise transfer any of its rights or obligations under this Agreement without the other party's prior written approval and any such assignment or transfer shall be void. This Agreement does not create, and shall not be construed as creating, any rights enforceable by any person not a party to this Agreement. 8.6 Applicable Law. This Agreement is deemed made and entered into in the State of California and shall be construed, enforced and performed in accordance with the laws of the State of California, without reference, to choice of law. THE RIGHTS AND OBLIGATIONS OF THE PARTIES IN CONNECTION WITH THIS AGREEMENT AND ANY PURCHASE OF THE PRODUCTS SHALL NOT BE GOVERNED BY THE PROVISIONS OF THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. 8.7 Dispute Resolution. Any and all disputes of whatever nature, arising between the Parties of this Agreement or the underlying business relationship, including termination thereof and statutory claims, and which are not resolved between the parties themselves, shall be submitted to binding and final arbitration to be conducted in English, in Los Angeles, California, before a panel of three arbitrators in accordance with the Commercial Arbitration Rules of the American Arbitration Association for Complex Commercial Cases in effect as of the date of this Agreement. Judgment upon the award of the arbitrators may be entered in any court having jurisdiction thereof. In the event of any proceeding in arbitration between the Parties arising in any manner out of this Agreement or the asserted breach thereof, the prevailing party shall recover court costs or costs of arbitration, as appropriate, and reasonable attorneys' fees. 8.8 Waiver. The waiver or excuse by either party hereto as to any breach, default or deficiency and the performance by the other party of any duty or obligation by the other party to be performed hereunder shall not constitute or b<|eot_id|>
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d that it has no material economic impact to the Company. 23.8 Severability: if any term or provision of this Agreement is determined to be invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other terms and provisions hereof shall remain in full force and effect, and the Parties shall negotiate in good faith in order to modify this Agreement with a provision having substantially the same legal and commercial effect as the severed provision. 23.9 Entire Agreement: this Agreement constitutes the entire agreement between the Parties and supersedes and replaces all prior discussions, representations, understandings or agreements whether verbal or written, between the Parties hereto or their agents with respect to or in connection with the subject matter hereto, save and except for the provisions of any agreements which by their nature or wording are intended to remain in full force and effect (including pre-existing confidentiality or non-disclosure undertakings not otherwise covered herein). No other documents and agreements, including either Party's standard terms and conditions, whether existing or future, will apply between the Parties with respect to the subject matter of this [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 36/110 Source: AZUL SA, F-1/A, 3/3/2017 Execution version Agreement, unless where otherwise expressly provided for in this Agreement. Each Party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy (other than for breach of contract) in respect of any statement, representation, insurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement. Nothing in this Clause shall limit or exclude any liability of either Party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment. 23.10Language: the Parties declare that they have requested and hereby confirm their express wish that this Agreement and any and all related documents be drawn up in the English language (or, if not in English, with a certified English translation). 23.11Costs and expenses: except where this Agreement provides otherwise, each Party shall pay its own costs relating to the negotiation, preparation, execution and implementation of this Agreement and of any document related hereto. 23.12Counterparts: this Agreement shall be signed in several counterparts, each of such counterparts so signed shall constitute an original, and all counterparts together shall constitute a single instrument. Any executed version delivered via facsimile transmission or electronic mail ("PDF" format) shall be binding to the same extent as an original. Any Party who delivers such an executed version agrees to subsequently deliver an original counterpart to any Party that requests it. 23.13Publicity and public announcements: the Parties shall not make public announcements, press releases and/or advertise on the signature and/or the existence of this Agreement (but not its contents) without the prior written consent of the other Party. The Repairer is entitled to use the Company's name and associated logos as a business reference for its marketing activities in relation with the Services, provided such use (i) has no adverse impact on, such as but not limited to, Company's reputation and image and (ii) complies with graphic design policy of the Company. 23.14Company's audited financial statements: during the Term of this Agreement, the Company undertakes to provide promptly the Repairer with (i) its audited financial statements and (ii) any other financial information it shall request, acting reasonably, for each relevant financial year. It is hereby agreed that any such information shall be prepared in accordance with the applicable accounting policies. 23.15For the sake of clarity and transparency, the Services to be provided under this Agreement by the Repairer will not involve the transfer of know-how to the Company by no means whatsoever. The Services shall be performed without the presence of any Company's technician and no technical report shall be delivered by the Repairer in connection therewith (except if expressly required by the Company, as foreseen on Clause 23.3.5). 24. GOVERNING LAW AND ARBITRATION 24.1 Governing law: Pursuant to and in accordance with Section 5-1401 of the New York General Obligations Law, the Parties hereto agree that this Agreement in all respects, and any claim or cause of action based upon or arising out of this Agreement, or any dealing between the Parties AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 37/110 Source: AZUL SA, F-1/A, 3/3/2017 Execution version CONFIDENTIAL TREATMENT REQUESTED relating to the subject matter of this Agreement or the transactions contemplated hereby or the Company/Repairer relationship being established, shall be governed by, and construed in accordance with, the laws of the State of New York, U.S.A. as applied to contracts to be performed wholly within the State of New York (Exclusive of Section 7-101 of the New York General Obligations Law which is inapplicable to this Agre<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>ctors: neither Party is the representative or agent of the other Party for the purposes of this Agreement and nothing herein shall be construed as authorizing either Party to act as the other Party's representative or agent. Notwithstanding any other provisions of this Agreement, this Agreement shall not be construed as a joint venture, partnership, agency, incorporation or business association. Each Party hereto shall remain an independent contractor. 23.7 Amendments: this Agreement shall only be varied or amended by a written document duly signed by duly authorized representatives of both Parties. Notwithstanding the foregoing, Exhibit 1 ("List of ATR aircraft covered under this Agreement") and the Pool may be amended from time to time by the Repairer by way of Notice sent to the Company, unless, for LRU's reference suppression/replacement, the Company does not agree the same by way of Notice within [*****] as from the receipt date of the said Notice from the Repairer, in compliance with this Agreement and provide<|eot_id|>
3.438872
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its Affiliates, licensees and sublicensees to so disclose, the development, making, conception or reduction to practice of any Joint Know-How or Joint Patents. Subject to the licenses and rights of reference granted under Sections 5.1 and 5.2 and, in the case of Harpoon, its exclusivity obligations hereunder, each Party shall have the right to Exploit the Joint Intellectual Property Rights without a duty of seeking consent from or accounting to the other Party. Notwithstanding the foregoing, with respect to (1) any [***], and (2) any [***]. 7.1.3 United States Law. The determination of whether Information and inventions are conceived, discovered, developed, or otherwise made by a Party for the purpose of allocating proprietary rights (including Patent, copyright or other intellectual property rights) therein, shall, for purposes of this Agreement, be made in accordance with Applicable Law in the United States. - 42 - Source: HARPOON THERAPEUTICS, INC., 10-K, 3/12/2020 7.1.4 Assignments. (a) Each Party shall cause all Persons who perform activities for such Party under this Agreement to prospectively or be under an obligation to assign (or, if Applicable Law does not permit such Person to agree to such assignment obligation despite such Party's using commercially reasonable efforts to negotiate such assignment obligation, provide a license under) all of their rights in any Information and inventions resulting therefrom to such Party, except where Applicable Law requires otherwise and except in the case of governmental, not-for-profit and public institutions which have standard policies against such an assignment (in which case a suitable license, or right to obtain such a license, shall be obtained). (b) Each Party will promptly disclose to the other Party in writing, the conception, discovery, development or making of any Joint Know-How or Joint Patents by Persons who perform activities for it under this Agreement. Each Party will execute and record assignments and other necessary documents consistent with such ownership promptly upon request. 7.2 Maintenance and Prosecution of Patents. 7.2.1 Patent Prosecution and Maintenance of Harpoon Patents and Joint Patents. (a) Subject to Section 7.2.1(b), Harpoon shall have the right, but not the obligation, through the use of internal or outside counsel to prepare, file, prosecute, and maintain the Harpoon Patents and Joint Patents worldwide, at Harpoon's sole cost and expense. Where a Harpoon Patent or Joint Patent [***]. Harpoon shall [***] with regard to the preparation, filing, prosecution, and maintenance of such Harpoon Patents or Joint Patents, including by providing AbbVie with a copy of material communications to and from any patent authority in the Territory regarding such Harpoon Patents or Joint <|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>ransfer, documentary, sales use, stamp, registration, value added or other similar tax that is imposed with respect to the payments or the related transfer of rights or other property pursuant to the terms of this Agreement. If the Indirect Taxes originally paid or otherwise borne by the paying Party are in whole or in part subsequently determined not to have been chargeable, all reasonably necessary steps will be taken by the receiving Party to receive a refund of these undue Indirect Taxes from the - 40 - Source: HARPOON THERAPEUTICS, INC., 10-K, 3/12/2020 applicable governmental authority or other fiscal authority and any amount of undue Indirect Taxes repaid by such authority to the receiving Party will be transferred to the paying Party within [***] of receipt. 6.10 Interest on Late Payments. If any payment due to either Party under this Agreement is not paid when due, then such paying Party shall pay interest thereon (before and after any judgment) at [***] such interest to run from the date on which payment of such sum became due until payment thereof in full together with such interest; provided however that [***], then such interest [***], as adjusted from time to time on the [***]. 6.11 Audit. AbbVie shall, shall cause its Affiliates to, and shall use commercially reasonable efforts to cause its Sublicensees to, keep complete and accurate books and records pertaining to Net Sales of Licensed Products, in sufficient detail to calculate all amounts payable hereunder. At the request of Harpoon, AbbVie shall permit an independent public accounting firm of nationally recognized standing designated by Harpoon and reasonably acceptable to AbbVie, [***], to audit the books and records maintained pursuant to this Section 6.11 to ensure the accuracy of all reports and payments made hereunder, including any permitted deductions from Net Sales pursuant to Section 1.108. Such examinations may not (a) be conducted for any [***] [***] (b) be conducted more than once in any [***] period or (c) be [***] (unless a previous audit revealed an underpayment with respect to such [***]). The accounting firm shall disclose to Harpoon only whether the reports are correct or not, and the specific details concerning any discrepancies. No other information shall be shared. Except as provided below, the cost of this audit shall be borne by Harpoon, unless the audit reveals a variance [***] from the reported amounts or [***], in which case AbbVie shall bear the cost of the audit. 6.12 Audit Dispute. In the event of a dispute with respect to any audit under Section 6.11, Harpoon 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 [***], the dispute shall be submitted for resolution to a certified public accounting firm jointly selected by each Party's certified public accountants or to such other Person as the Parties shall mutually agree (the "Audit Expert"). The decision of the Audit Expert shall be final and the costs of such determination as well as the initial audit shall be borne between the Parties in such manner as the Audit Expert shall determine. Not later than [***] after such decision and in accordance with such decision, AbbVie shall pay the additional amounts or Harpoon shall reimburse the excess payments, as applicable. 6.13 Confidentiality. The receiving Party shall treat all information subject to review under this Article 6 in accordance with the confidentiality provisions of Article 9 and the Parties shall cause the Audit Expert to enter into a reasonably acceptable confidentiality agreement with AbbVie obligating such firm to retain all such financial information in confidence pursuant to such confidentiality agreement. 6.14 [***] The development and regulatory milestone payments, first commercial sales milestone payments, sales-based milestone payments and royalties in Sections 6.2, 6.3 6.4, and 6.5 shall not apply at the same rates to Development and Commercialization of Licensed Compounds or Licensed Products [***] for eligibility to be treated for such disease, state, or condition with a Licensed Compound or Licensed Product or for monitoring patients who are or have been treated with a Licensed Compound or Licensed Product. In the event that a Licensed Compound or Licensed Product is Developed for any such purposes, [***] for the sale of such Licensed Product that [***] of such Licensed Product and [***], as applicable; provided that, for clarity, any such [***] - 41 - Source: HARPOON THERAPEUTICS, INC., 10-K, 3/12/2020 [***] [***] under this Agreement with respect to Licensed Compounds or Licensed Products that are [***]. 6.15 No Other Compensation. Each Party hereby agrees that the terms of this Agreement fully define all consideration, compensation and benefits, monetary or otherwise, to be paid, granted or delivered by one Party to the other Party in connection with the transactions contemplated herein. Neither Party previously has paid or entered into any other commitment to pay, whether orally or in writing, any of the other Party's employees, directly or indirectly, any consideration, compensation or benefits, monetary or otherwise, in connection with the transaction contemplated herein. ARTICLE 7 INTELLECTUAL PROPERTY 7.1 Ownership of Intellectual Property. 7.1.1 Ownership of Technology. Subject to Section 3.8.2(c) and Section 7.1.2, as between the Parties, each Party, or their respective Affiliates, shall own and retain all right, title, and interest in and to any and all: (a) Information and inventions that are conceived, discovered, developed, or otherwise made by or on behalf of such Party or its Affiliates (including subcontractors thereof) under or in connection with this Agreement, whether or not patented or patentable, and any and all Patents and other intellectual property rights with respect thereto, except to the extent that any such Information or invention or any Patent or intellectual property rights with respect thereto, is Joint Know-How or Joint Patents, and (b) other Information, inventions, Patents, and other intellectual property rights that are owned or otherwise Controlled (other than pursuant to the license grants set forth in Sections 5.1 and 5.2) by such Party or its Affiliates. 7.1.2 Ownership of Joint Patents and Joint Know-How. Subject to Section 3.8.2(c), as between the Parties, each Party, or their respective Affiliates, shall own an equal, undivided interest in and to any and all (a) Information and inventions that are conceived, discovered, developed or otherwise made jointly by or on behalf of Harpoon or its Affiliates (including subcontractors thereof), on the one hand, and AbbVie or its Affiliates (including subcontractors thereof), on the other hand, in connection with the work conducted under or in connection with this Agreement, in each case whether or not patented or patentable (the "Joint Know-How"), and (b) Patents (the "Joint Patents") and other intellectual property rights with respect to the Information and inventions described in subclause (a) (together with Joint Know-How and Joint Patents, the "Joint Intellectual Property Rights"). Each Party shall promptly disclose to the other Party in writing, and shall cause<|eot_id|>
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ansactions contemplated hereby are within its corporate powers; (c) it has taken necessary steps to obtain authority and all necessary consents and approvals of any other third party or Governmental Authority to execute and perform this Agreement; (d) this Agreement has been duly executed and delivered by it and constitutes its valid and binding obligation, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, or other laws affecting the rights of creditors' generally or by general principals of equity; and (e) the execution, delivery and performance of this Agreement will not conflict with or result in any breach of its charter or certificate of incorporation, bylaws, or other governing document, or any instrument, obligation, or contract to which it or its properties is bound. (b) By Licensor. Licensor represents and warrants that: i. It has the right to grant the licenses granted to Licensee hereunder; and ii. The Licensed Content and the Licensed Domain Names are, and the rights granted hereunder in connection with the Licensed Domain Names and Licensed Content are, substantially similar to the Licensed Content and the Licensed Domain Names and the rights that were granted to SINA Leju in connection therewith prior to the Effective Date. 7.2. Disclaimer. LICENSEE HEREBY ACKNOWLEDGES AND AGREES THAT EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN THE SHARE PURCHASE AGREEMENT, THE LICENSED DOMAIN NAMES AND THE LICENSED CONTENT ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, VALIDITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, AND LICENSOR HEREBY DISCLAIMS ANY AND ALL SUCH WARRANTIES. 9 ARTICLE VIII INDEMNIFICATION 8.1. Indemnification by Licensor. Licensor shall defend, indemnify and hold harmless Licensee and its Affiliates, and their respective officers, directors, employees, agents, shareholders, successors and assigns, (collectively, the "Licensee Parties") from and against any claim, suit, demand or action ("Action"), and any and all direct losses suffered or incurred by Licensee in connection with any third party claims arising out of or resulting from any breach by Licensor of any provision of this Agreement. Licensor's obligation to indemnify Licensee shall be conditioned on (a) Licensee's provision to Licensor of prompt notice of such an Action (except where any delay does not materially prejudice Licensor); (b) Licensee's reasonable cooperation with Licensor in the defense and settlement of such an Action at Licensor's cost; and (c) Licensor having exclusive control of the defense, settlement and/or compromise of such an Action (provided that Licensor may not settle any Action in a manner that adversely affects Licensee without Licensee's prior written consent, not to be unreasonably withheld or delayed). 8.2. Ind<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|> forth in Section 6.7. 6.6. Effect of Termination. (a) Upon termination (but not expiration) of this Agreement for any reason, Licensee shall be entitled to use the Licensed Domain Names and Licensed Content for a limited period of time, not to exceed ninety (90) days, during which it shall diligently work to transition to another solution. Upon expiration of this Agreement or such 90-day period, (i) all rights granted to Licensee under this Agreement with respect to the Licensed Domain Names and Licensed Content shall immediately cease, and (ii) Licensee shall immediately discontinue all use of the Licensed Domain Names and Licensed Content. 8 Source: LEJU HOLDINGS LTD, DRS (on F-1), 1/21/2014 (b) Upon termination or expiration of the Agency Agreement (other than as described in Section 6.5), Licensee's rights under Section 2.1(b) are terminated and Licensee shall immediately discontinue all use of the Licensed Content, provided, however that in the event the Agency Agreement is amended or restated, such amendment or restatement shall not be deemed a termination or expiration of the Agency Agreement. 6.7. Survival. The duties and obligations of the Parties under Articles IV, VI, VIII, IX and X and Section 7.2 of this Agreement shall survive any termination or expiration of this Agreement. ARTICLE VII REPRESENTATIONS AND WARRANTIES 7.1. Representations and Warranties. (a) By Each Party. Each of Licensee and Licensor represents and warrants to each other Party that: (a) it is a corporation duly incorporated, validly existing and in good standing under applicable Law; (b) the execution, delivery and performance of this Agreement and the consummation of the tr<|eot_id|>
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ducted, except as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, results of operations or financial condition of the Company and its Subsidiaries, taken as a whole (a "Company Material Adverse Effect"). (b) Capitalization. The authorized capital stock of the Company consists of (i) 46,000,000 shares of Common Stock and (ii) 250,000,000 shares of preferred stock, $0.001 par value per share (the "Preferred Stock"), of which 50,000 shares are designated as "Series A Junior Participating Preferred Stock". As of December 19, 2019, there were 6,004,229 shares of Common Stock issued and outstanding and no shares of Preferred Stock outstanding. As of December 19, 2019, no shares of Common Stock or Preferred Stock were reserved for issuance, except for an aggregate of 258,888 shares of Common Stock reserved for issuance upon the exercise of outstanding stock options and the settlement of restricted stock units issued under the Company's equity incentive plans and stock incentive plans. All of the issued and outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights. (c) Authority; Approvals. The Company has full corporate power and authority to execute and deliver each of the Transaction Documents to which it is a party and to consummate the transactions contemplated thereby. The execution and delivery of each of the Transaction Documents to which it is a party and the consummation by the Company of the transactions contemplated thereby, including, without limitation, the issuance of the Purchased Shares, the Warrant and the underlying Warrant Shares, have been duly and validly approved by all necessary corporate action of the Company, and no other corporate and no shareholder proceedings on the part of the Company are necessary to approve such Transaction Documents or to consummate the transactions contemplated thereby. The Board of Directors has taken all actions so that the restrictions contained in Section 203 of the Delaware General Corporation Law, as amended (the "DGCL"), applicable to a "business combination" (as defined in Section 203 of the DGCL) do not and will not apply to the execution, delivery or performance of any Transaction Document and the transactions contemplated hereby and thereby. Each of the Transaction Documents to which it is a party has been duly and validly executed and delivered by the Company and (assuming due execution and delivery by Farids and EA, as applicable) constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforcement may be limited by general principles of equity whether applied in a court of law or a court of equity and by bankruptcy, insolvency and similar laws affecting creditors' rights and remedies generally (collectively, the "Enforceability Exceptions"). (d) Non-Contravention. The execution, delivery and performance of the Transaction Documents to which it is a party, and the consummation by the Company of the transactions contemplated hereby and thereby, does not and will not (i) contravene or conflict with the Certificate of Incorporation or the Bylaws, (ii) contravene or conflict with or constitute a violation of any provision of any Law or Order binding upon the Company, (iii) constitute a default under or breach of (with or without the giving of notice or the passage of time or both) or violate or give rise to any right of termination, cancellation or acceleration of any material contract or other instrument or obligations binding upon the Company or by which any shares of the Common Stock or the Preferred Stock or any of the Company's assets is or may be bound or (iv) result in the creation or imposition of any Lien on any of the shares of Common Stock or Preferred Stock or any of the Company's assets. 8 (e) Consents and Approvals. Assuming the accuracy of the representations and warranties of each of Farids and EA as set forth in this Agreement and EA as set forth in the Exclusive Supplier Operating Agreement, as of the Closing Date, no consents or approvals of, or filings or registrations with, any federal, state or local court, governmental, legislative, judicial, administrative or regulatory authority, agency, commission, body or other governmental entity or self-regulatory organization (each, a "Governmental Entity") or of or with any other third party by or on behalf of the Company or any of its Subsidiaries are necessary for the execution and delivery by the Company of any Transaction Document to which it is a party and the consummation by the Company of the transactions contemplated thereby, except for (A) those already obtained or made, (B) the filing of any Eligible Registration Statement with the Commission pursuant to Article VI, (C) the supplemental listing application to Nasdaq with respect to the supplemental listing of the Purchased Shares and the reservation for issuance on the Nasdaq Global Market of the Warrant Shares and (D) any securities or "blue sky" filings of any state. The transactions contemplated by the Transaction Documents do not require the consent or approval by the holders of a majority of the outstanding shares of Common Stock pur<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>to vote in the election of the Board of Directors of the Company. (qq) "Warrant" means the common stock purchase warrant, dated the date hereof, issued to the EA, providing for the purchase at a purchase price per share of $8.76 of up to 960,677 Warrant Shares, attached as Exhibit C hereto. (rr) "Warrant Shares" means the shares of Common Stock issuable upon exercise of the Warrant. ARTICLE II ISSUANCE OF THE PURCHASED SHARES Section 2.1 Share Purchase. Upon the terms and subject to the conditions set forth in this Agreement, Farids hereby agrees to purchase, and the Company hereby agrees to issue and sell to Farids, at the Closing (as defined below), the Purchased Shares (the "Share Purchase"), in consideration of the payment by Farids to the Company of $999,998.68 (the "Purchase Price") and Farids assistance in developing the strategic alliance contemplated hereby. The Purchase Price shall be paid by Farids by the Company by wire transfer of immediately available funds, to one or more bank accounts designated in writing by the Company, on the Closing Date (as defined below). 6 Section 2.2 Closing. The closing of the Share Purchase (the "Closing") shall take place at the offices of Perkins Coie LLP, 1900 Sixteenth Street Suite 1400, Denver, Colorado 80202, at 11:00 a.m. Mountain Time or before 90 days after the date hereof (such , the "Closing Date"). Section 2.3 Transactions to be Effected At or Prior to the Closing. At or prior to the Closing, the transactions below shall take place (except (i) to the extent such day is not a business day, (ii) the transactions set forth in clauses (a) through (e) below shall take place on or prior to the date hereof and (iii) the transactions set forth in clauses (f) through (h) shall take place as promptly as practicable on or after the date hereof, but in no event later than the Closing Date): (a) The Board of Directors shall have taken all necessary action related to the nomination of TF for election to the Board of Directors at the Company's annual meeting of stockholders to be held on January 9, 2020 (the "Annual Meeting"), provided that the mailing and filing of proxy materials reflecting the nomination of TF to the Board of Directors shall be completed no later than two (2) business days following the date hereof. (b) The Company and Farids shall execute and deliver this Agreement. (c) The Company and EA shall execute and deliver the Exclusive Supplier Operating Agreement and, in consideration of EA entering into the Exclusive Supplier Operating Agreement and the performance of EA's obligations therein, the Company shall issue the Warrant to EA. Each of the Exclusive Supplier Operating Agreement and the Warrant is effective as of the date hereof in accordance with the terms of such document. (d) The Company and TF shall execute and deliver the Indemnification Agreement. (e) The Company and Computershare Trust Company, N.A. shall execute and deliver the Amendment. (f) The Company shall receive the approval of Nasdaq with respect to the supplemental listing of the Purchased Shares and the reservation for issuance on the Nasdaq Global Market of the Warrant Shares. (g) The Company shall issue to Farids the Purchased Shares in electronic book-entry form. (h) The Company shall deliver to Farids the irrevocable letter of instructions addressed to the Company's transfer agent, relating to the issuance of the Purchased Shares. ARTICLE III REPRESENTATIONS AND WARRANTIES Section 3.1 Representations and Warranties of the Company. The Company represents and warrants to each of Farids and EA as of the date hereof and as of the Closing Date that: 7 (a) Existence and Power. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company has all power and authority, corporate and otherwise, and all governmental licenses, franchises, permits, authorizations, consents and approvals required to own and operate its properties and assets and to carry on the business as presently conducted and as proposed to be con<|eot_id|>
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counts receivable or otherwise identify as being due. (e) "Claimant" means Shipper or any consignee, filing a request with Carrier for the refund of an overcharge, duplicate payment, or overcollection. II. FILING AND PROCESSING CLAIMS (a) A claim for overcharge, duplicate payment, or overcollection shall not be paid unless it is filed in writing with Carrier within nine (9) months from the date the shipment in question was delivered and unless all freight bills which are pertinent to the claim have been paid in full. (b) A single claim may include more than one shipment, provided the claim on each shipment involves the same issue under the Schedule or the Agreement between Carrier and Shipper or the same circumstances. III. DOCUMENTATION OF CLAIMS (a) Claims for overcharge, duplicate payment or overcollection shall be accompanied by sufficient information to allow Carrier to conduct an investigation and pay or decline the claim within the time limitations set forth in Section VII of this Item. Claims shall include the name of the claimant, its file number, if any, and the amount of the refund sought to be recovered. (b) Claims for overcharge shall be accompanied by: (1) The original freight bill. (2) The rate, classification, or commodity description or weight claimed to have been applicable and authority therefor. (3) Evidence showing that any freight bill which is pertinent to the claim has been paid in full. (4) Other documents or data which claimant believes to substantiate its claim. (c) Claims for duplicate payment and overcollection shall be accompanied by the original freight bill(s) for which charges were paid and by freight bill payment information. (d) Carrier may accept photocopies instead of original of documents required to be submitted by this Item if the claimant agrees to indemnify and hold Carrier harmless for subsequent duplicate claims which might be filed and supported by the original documents. IV. INVESTIGATION OF CLAIMS (a) Upon receipt of a claim, whether written or otherwise, Carrier shall promptly initiate an investigation and establish a file, as required by Section V of this item. (b) If Carrier discovers an overcharge, duplicate payment, or overcollection which has not been the subject of a claim, it shall promptly initiate an investigation and comply with the provisions of Section VIII of this item. (c) If in processing the claim, Carrier requires information or documents in addition to that submitted with the claim, Carrier shall promptly notify the claimant and request the information required. V. CLAIM RECORDS At the time a claim is received, Carrier shall create a separate file and assign it a unique claim file number and note that number on all correspondence with respect to the claim, including the written acknowledgement of receipt required under Section VI of this item. VI. ACKNOWLEDGEMENT OF CLAIMS Upon receipt of a written claim, Carrier shall acknowledge its receipt in writing to the claimant within 30 days after the date of receipt unless Carrier shall have paid or declined in writing within that period. VII. DISPOSITION OF CLAIMS Carrier shall pay, decline to pay, or settle each written claim within 60 days after its receipt by that Carrier, except where the claimant and Carrier agree in writing to a specific extension based upon extenuating circumstances. If the Carrier declines to pay a claim or makes settlement in an amount different from that sought, the Carrier shall notify the claimant, in writing, of the reason(s) for its action. VIII. DISPOSITION OF UNIDENTIFIED PAYMENTS, OVERCHARGES, DUPLICATE PAYMENTS AND OVERCOLLECTIONS NOT SUPPORTED BY CLAIMS If Carrier does not have sufficient information with which properly to apply an unidentified payment, Carrier shall notify the payor of the unidentified payment within 60 days of receipt of the payment and request information which will enable it to identify the payment. If Carrier does not receive the information request within 90 days from the date of the notice, Carrier may treat the unidentified payment as a payment in fact of freight charges owing it, subject to the regular claims procedure of this Item. ITEM 500: ALLOWANCE FOR USE OF SHIPPER'S TRAILER 1. When Shipper furnishes its own trailer for transportation service by Carrier, an allowance of three cents (3 cents) per running mile will be made for the miles such vehicle is operated by Carrier. Running miles shall be computed as twice the rate-making miles for each shipment. 2. The freight bill shall show the type of vehicle furnished, and the allowance for the use thereof will be shown on the invoice covering such shipment. ITEM 510: SETTING OUT TRAILERS AND TRACTORS USED FOR SPOTTING 1. When for Shipper's convenience a trailer is set out at the facilities of the Consignor or Consignee or any other site designated, a charge of $10.00 per hour or fraction thereof will apply, subject to a maximum charge of $100.00 per trailer in any consecutive twenty-four (24) hour period. Time will run from when the trailer has arrived and is available to Consignor or Consignee until Carrier is notified that the trailer is ready to be picked up. 2. When Carrier is requested by Shipper to deadhead tractors and/or trailers between Carrier's terminal and a place designated by the Consignor or Consignee, a charge of one hundred twenty-five cents (125 cents) per mile will apply for each mile traveled. Mileage will be computed in accordance with the provisions of Item 217 (Distances-Method of Computing) from the closest terminal where suitable equipment is domiciled for the service requested, subject to a minimum charge of $100.00 per vehicle or unit. 3. When, at the request of Consignor or Consignee, a tractor is used for spotting or similar services, at a place designated by the Consignor or Consignee, a charge of $35.00 per hour, will be assessed, subject to a minimum charge of $140.00 per tractor. ITEM 520: WAITING AT PORT OF ENTRY A charge of $15.00 for each half hour or fraction thereof per vehicle will apply for all waiting time of Carrier at a port of entry when trailer is to be taken from the port of entry to a loading or unloading point in Canada or Mexico, loaded or unloaded and returned to Carrier at the port of entry. The time for which charges are applied pursuant to this Item shall not be subject to Item 525 (Detention of Vehicles), or Item 560 (Overnight Layovers). ITEM 525: DETENTION OF VEHICLES 1. Except as otherwise provided in this Item, two (2) hours will be allowed for loading and three (3) hours will be allowed for unloading. A charge of $12.50 per half hour or fractional part thereof shall apply for all time consumed in excess of free time allowed for loading when due to delays caused by Shipper or Consignor and beyond Carrier's control. A charge of $50.00 per hour or fractional part thereof shall apply for all time consumed in excess of free time allowed for unloading when due to delays caused by Shipper or Consignee and beyond Carrier's control. 2. Shipments moving in MC-330 or MC-331 trailers will be allowed one and one- half (1.5) hours for loading and unloading. A charge of $12.50 per half hour or fractional part thereof shall apply for all time consumed in excess of free time allowed when due to delay caused by Consignor or Consignee and beyond Carrier's control. 3. Loading or unloading time shall be deemed to run from the time the unit arrives on the premises of a plant until all connections have <|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>r in writing to the claimant within 120 days after receipt of the claim by Carrier. Provided, however, that, if the claim cannot be processed and disposed of within 120 days after receipt thereof, Carrier shall at that time and at the expiration of each succeeding 60 day period while the claim remains pending, advise the claimant in writing of the status of the claim and the reason for the delay in making final disposition thereof. V. PROCESSING OF SALVAGE (a) Whenever a shipment transported by Carrier is damaged or alleged to be damaged and is, as a consequence, not delivered or is rejected or refused upon tender to the owner, Consignee or the person entitled to receive such shipment, Carrier, after giving due notice, whenever practical to do so, to the owner and parties that may have an interest therein, and unless advised to the contrary after giving such notice, shall undertake to sell or dispose of such commodities directly or by the employment of a competent salvage agent. Shipper, if requested to do so by Carrier, shall make a good faith effort to assist Carrier in the disposal or salvage of any damaged, contaminated or defective shipment. Carrier shall only dispose of the property in a manner that will fairly and equally protect the best interests of all persons having an interest therein. Carrier shall make an itemized record sufficient to identify the commodities involved so as to be able to correlate that to the shipment or transportation involved, and claim, if any, filed thereon. Carrier also shall assign to each lot of such property a successive lot number and note that lot number on its record and shipment of claim, if any claim is filed thereon. (b) Upon receipt of a claim on a shipment on which salvage has been processed in the manner herein before prescribed, Carrier shall record in its claim file thereon the assigned, the amount of money recovered, if any, from the disposition of such property and the date of transmittal of such money to the person or persons lawfully entitled to receive the same. ITEM 410: CLAIMS FOR OVERCHARGE, DUPLICATE PAYMENT OR OVERCOLLECTION I. DEFINITIONS (a) "Overcharge" means an amount charged that exceeds the applicable rates and charges for services. It also includes duplicate payments as defined in paragraph (b) of this section and overcollections as defined in paragraph (c) of this section when a dispute exists between the parties concerning such charges. (b) "Duplicate payment" means two or more payments for the same service. Where one or more payment is not in the exact amount of the applicable rates and charges, refunds shall be made on the basis of the excess amount over the applicable rates and charges. (c) "Overcollection" means the receipt by Carrier of a payment in excess of the rates and charges applicable to the service in question. (d) "Unidentified payment" means a payment which Carrier has received for the performance of services but which Carrier is unable to match with its open ac<|eot_id|>
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itage shall not be responsible for any Losses arising out of or attributable to Heritage's manufacturing of the Products in adherence with the Product Specifications, this Agreement, or any written orders or instruction(s) from Premier regarding the manufacture or packaging of the Products, as set forth in Section 7(a) above. (c) The Party seeking indemnification shall promptly notify the other Party hereto in writing of any suit, claim, or damage for which such Party has notice and to which these provisions may apply. In the event suit is commenced, the indemnifying Party shall have the right to control the defense of any such suit at its own cost. The appearance of the indemnifying Party in such proceeding shall not be construed as an admission of liability and shall not constitute a waiver of any of its rights, including, but not limited to, the indemnifying Party's right to hire its own counsel. 8. RISK OF LOSS AND INSURANCE (a) Title to the Products shall be in and remain with Premier from the date Products are delivered to a carrier pursuant to Premier's instructions for delivery to Premier. Heritage shall bear the risk of loss to the Products until the Products are delivered to such carrier for delivery to Premier as set forth herein. Risk of loss to the Products shall also be with Heritage during shipment between the Heritage Facilities pursuant to Section 2. (b) Heritage and Jasper shall maintain insurance of the following kinds and in the following amounts during the Term of this Agreement: i. Commercial General Liability Insurance with a limit of $[***] each occurrence and $[***] in the aggregate, including Contractual, Completed-Operations and Product-Liability Coverage with a<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>**] after the date the COA is delivered to Premier, a warehouse fee will be imposed that will equal $[***], until such Products are delivered to Premier's carrier. [***] Capability of a corrugated shipping case to withstand double stacking shall be mutually determined and agreed by both Parties. (b) Premier agrees to issue shipping instructions in full pallet increments of [***] and Heritage agrees to make the Products available for shipping within [***]. Heritage shall ship oldest Products first, unless otherwise directed in writing by Premier. Release of Products shall only be from inventory that has completed any required incubation period and Heritage quality control release protocols. 5 Source: BELLRING BRANDS, INC., S-1, 9/20/2019 (c) Heritage shall perform, and shall ensure Jasper performs, a documented inspection of all trailers before loading to confirm they are free of any visible contamination or odors and fit for use with food products. When products are properly palletized and loaded by Heritage or Jasper, Premier shall be responsible for physical, in-transit damage loss of finished Products upon Heritage or Jasper completing loading of the designated container or trailer, and sealing the same. (d) Heritage shall notify Premier via email within [***] that Products are available for shipment. (e) The following series of standard, regular, required reports and scorecard shall be provided by Heritage to Premier at the indicated frequency: 1. Weekly Production Report. 2. Monthly Inventory Reports at Supplier's end of fiscal month to include a. Inventory on hand, b. Inventory on hold, and c. Inventory adjusted. 3. Monthly Purchase Order receipt report - at the end of Supplier's fiscal month 5. TRADEMARKS Premier represents and warrants that it owns or otherwise has the right to use all trademarks (the "Trademarks") and copyrighted material (the "Copyrights") provided by Premier to Heritage, which are provided solely for use in connection with the manufacture or packaging of the Products. Heritage will not, and will ensure that Jasper does not, use any of the Trademarks or any marks that are confusingly similar to, or likely to cause confusion with regard to, the Trademarks or Copyrights owned or licensed by Premier for any other purpose without the prior written consent of Premier in each instance. Provided, however, that the foregoing covenant shall not be construed to restrict or prohibit Heritage from using any trademark, trade name, trade dress, labeling or packaging that Heritage is using in commerce as of the date of this Agreement. Nothing contained in this Section 5 is intended to or does preclude Premier from enforcing any of its intellectual property rights, including without limitation, its trademark rights. 6. QUALITY CONTROL (a) Heritage agrees to perform, at its expense, sampling and testing procedures for the Products in accordance with Schedule B, attached hereto, and all applicable governmental regulations. If additional testing, not identified in Schedule B, is required by Premier, a reasonable additional fee will be agreed upon between Heritage and Premier to cover the associated incremental cost. Other quality control items to be performed under this Agreement are as follows: (i) Normal production runs shall require Premier to provide at least two (2) non-work hour phone numbers for Premier employees who can be contacted in the event a problem occurs during a production run not being conducted during normal business hours. Said contacts and contact information shall be listed in Schedule D. (ii) Heritage shall keep retention samples in accordance with Schedule B. (iii) Heritage shall not modify any processing instructions or Specifications without obtaining Premier's prior written consent. (iv) Heritage shall evaluate Products on a regular schedule at a sufficient frequency to confirm that Products meet the Specifications, including the Post Holdings Quality Expectations Manual. Any Products not conforming to the Specifications shall not be released for shipment. 6 Source: BELLRING BRANDS, INC., S-1, 9/20/2019 7. INDEMNITY (a) Premier shall indemnify, defend and hold Heritage harmless from and against any and all loss, cost, expense, claim, suit, damage or liability (including reasonable attorneys' fees and court costs) (collectively "Losses") arising out of or relating to an infringement or alleged infringement of any Trademarks or Copyrights in connection with the Products to the extent Heritage follows Premier's instructions with regard to the proper display and use of the Trademarks and Copyrights. In addition, Premier shall indemnify, defend and hold Heritage harmless from and against any and all Losses arising out of or relating to: (i) Heritage's adherence to the Product Specifications, identified in Schedule A, or written orders or instructions given by Premier to Heritage relating to the manufacture or packaging of Products; (ii) Premier's breach of any of its obligations contained herein; and (iii) the storage, sale, marketing, distribution and consumption of the Products, other than any Losses which would be covered under Section 7(b) hereof. (b) Heritage shall indemnify, defend and hold Premier harmless from and against any Losses arising out of or relating to (i) Heritage's or Jasper's negligence or willful misconduct, (ii) the manufacturing, packaging, storing and consumption of the Products (except to the extent resulting from Heritage's compliance with Premier's Specifications), (iii) any breach of the Agreement by Heritage or (iv) ingredients or packaging materials purchased by Heritage or Jasper. Her<|eot_id|>
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] of [***] sent to Ceres by early 20[***]. 4. Next [***] of [***] x [***] made based on results from 20[***] field [***] and [***] 5. Synthesis of best practice for [***] of miscanthus based on [***] and [***], [***] and other methods to meet market costs and commercialization in different geographies B. [***] to Ceres to help [***] in [***] as early as possible 1. Approximately [***] from [***] occurring in the field in 20[***] believed to be [***]x x [***]x sent to Ceres 2. Samples of [***] of Year 2 [***] (numbers?) sent to Ceres, including a sample of [***] 3. Promising selected genotypes from [***]/[***]/[***] program [***] in [***] and sent to Ceres C. Advancing the [***] assisted [***] program as early as possible 1. DNA from relevant [***] from [***] program, [***] etc delivered to Ceres in 20[***] 2. Preliminary phenotyping of [***] in field and preliminary [***] made with Ceres 3. [***] and [***] aligned with [***] and [***] and [***] Page 4 Confidential Treatment Requested and the Redacted Material has been separately filed with the Commission CERES-IGER SCHEDULE 1 April 1, 2007 Attachment B — Budget D. Advancing the [***] program 1. xxx new [***] of [***] x [***] made based on phenotypes, presumed [***], [***] and other characters 2. xxx new [***] of M [***] x other made 3. [***] phenotype/[***] assessments of material in [***] since 20[***] reported and correlations made with assessments in previous years and with [***] 4. Selection and [***] of genotypes for further trialing for potential commercialization based on geography, [***] and [***] 5. Report on methods to [***] large scale [***] with commercial advantages Year 3 (April 1 to March 31): A. [***] research to create an economically viable business 1. [***]/[***] variation affecting [***] amongst available [***] (how many?) and their behaviour through the season/[***] reported; any clear winners [***] 2. [***]/[***] variation affecting [***] ( how many?) [***] and early [***] across different [***] and [***] reported; any clear leaders [***] and sent to Ceres. 3. Synthesis of best practice for [***] of miscanthus based on [***] and [***], [***] and other methods to meet market costs and commercialization in different geographies. 4. XXX [***] of Miscanthus [***] ([***]) (good [***]) with Miscanthus [***] made and followed by [***] where necessary. [***] of [***] sent to Ceres by early 20[***]. 5. Next [***] of [***] x [***] made based on results from 20[***] field [***] and [***] B. [***] to Ceres to help [***] in [***] as early as possible 1. Approximately [***] from [***] occurring in the field in 20[***] believed to be [***]x x [***]x sent to Ceres 2. Samples of [***] of Year 3 [***] (how many?) sent to Ceres, including a sample of [***] 3. Promising selected genotypes from [***]/[***] program [***] in [***] and sent to Ceres C. Advancing the [***] assisted [***] program as early as possible 1. DNA from relevant [***] from [***] program, [***] etc delivered to Ceres in 20[***] 2. Advanced phenotyping of [***] in field and [***] made with Ceres D. Advancing the [***] program Page 5 Confidential Treatment Requested and the Redacted Material has been separately filed with the Commission CERES-IGER SCHEDULE 1 April 1, 2007 Attachment B — Budget 1. xxx new [***] of [***] x [***] made based on phenotypes and presumed [***], [***] and [***] and [***] samples transferred to Ceres 2. xxx new [***] of M [***] x other made and [***] samples transferred to Ceres 4. Initial evaluation of [***] in field; report on [***], and commercial feasibility of [***] 5. Selection and [***] of promising genotypes from all [***] to date for further trialing for potential commercialization based on geography, [***] and [***] and selections transferred to Ceres 6. Establishment of multisite trial of promising genotypes Page 6 Confidential Treatment Requested and the Redacted Material has been separately filed with the Commission CERES-IGER SCHEDULE 1 April 1, 2007 Attachment C CERES-IGER SCHEDULE 1 April 1, 2007 Quarterly Report Format Prepared by Date 1 Confidential Project # and name Concept and Goals 2 • Concept • Goals Confidential Project # and name FTEs and Budget Projected vs. Actual Dollars FTEs 3 • People and activities Confidential Project # and name Action Items and Deliverables for the Period 4 Expected Actual Action Item or Deliverable Finish Finish Confidential Project # and name Key Milestones or Deliverables for the Period 5 • Progress on Key Milestones and Deliverables • Are we on, ahead or behind schedule Confidential Project # and name Technical Highlights 6 • 1 or 2 slides covering technical highlights Confidential Project # and name Results 7 • Several slides summarizing results (if applicable) Confidential Project # and name What's Ahead: Key Milestones and Deliverables Next 4 Quarters 8 • Quarter 1 • Quarter 2 • Quarter 3 • Quarter 4 Confidential Project # and name Research Plan 9 • Goal — Impact — Tasks — Milestones — Deliverables • Duplicate this slide as needed to cover each goal for the next period Confidential Project # and name Timeline Summary 10 T i m e t o a c h i e v e M i l e s t o n e 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 M i l e s t o n e 1 M i l e s t o n e 2 M i l e s t o n e 3 E t c • Assumptions and risk factors • Use additional slide if necessary • Use red if behind schedule until completed or otherwise resolved • Should be indicated in red as soon as the delay is identified • See issue resolution if behind schedule Confidential Project # and name IP 11 • Filings during the period • Applications in progress Confidential Project # and name SOPs 12 • List SOPS for all Key processes Confidential Project # and name Issue Resolution and Decision Making Slides These can be used to address new issues or implement corrective action or assist in decision making such as variety release, etc. 13 Confidential Project # and name Issue Resolution and Decision Making 14 • Issue (e.g. milestone 3 behind schedule) Confidential Project # and name Actual • What is happening Expected • What should be happening Issue Resolution and Decision Making 15 • Issue (e.g. milestone 3 behind schedule) • Possible alternative slide to address new issues Confidential Project # and name Needs Wants Decision 16 • Summary of decision to be made Confidential Project # and name Options 17 • Summary of options Confidential Project # and name Recommendations 18 • What do we need to do to get back on track or address new issue Confidential Project # and name Resources Required 19 Confidential Project # and name Plan and Schedule 20 Action Items Who When Confidential Project # and name Attachment D IGER BACKGROUND INTELLECTUAL PROPERTY Confidential Treatment Requested and the Redacted Material has been separately filed with the<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>ear by Year and especially for all the items listed in the attached document. This [***]% amounts to [***] pounds in contract Year 1. - Furthermore, CERES will pay for Year 1 an additional [***]% of the asked overhead ( i.e.[***]% in total of the asked overhead) for full completion of the Year 1 items A and B listed hereinafter. This additional [***]% equals [***] pounds. - For Year 2 CERES will pay an additional [***]% of the overhead costs asked for full and successful completion of Year 2 items A and C hereinafter. - For Year 3 CERES will pay an additional [***]% of the overhead costs asked for full and successful completion of Year 3 items A, B, C and D listed hereinafter. - The MANAGEMENT COMMITTEE will bring forth recommendations to the Parties at the beginning of each Year for the items that IGER should satisfy to obtain extra overheads, outlined in the framework above. - Assessment on achievements of the nominated items will be made at the end of each Year by the MANAGEMENT COMMITTEE and recommendations made to the Parties. Upon agreement, CERES will respond to an invoice from IGER as agreed. Should some items in a section not be achieved then the amount paid will be reduced on a pro-rata basis on the number of items in the section. CERES-IGER SCHEDULE 1 April 1, 2007 Attachment B — Budget Suggested milestones, for discussion, for full overhead payments The Parties agree to finalize this document within thirty (30) days from the commencement date of this SCHEDULE. Year 1 (April 1 to March 31): A. [***] research to create an economically viable business 1. [***] and [***] variation affecting [***] amongst available (numbers?) [***] and their behaviour through the season/[***] reported; any clear winners [***] 2. [***] and [***] variation affecting [***] (numbers?) [***] and early [***] across different [***] and [***] reported; any clear leaders [***] and sent to Ceres 3. XXX [***] of Miscanthus [***] ([***]?) (good [***]) with Miscanthus [***] made and followed by [***] where necessary. [***] of [***] sent to Ceres by early 20[***]. 4. First [***] of [***] x [***] made based on results from 20[***] field [***] and [***] B. [***] to Ceres to help [***] in [***] as early as possible 1. [***] of latest [***] of [***] from [***] via [***] (how many?) sent into [***] in 20[***] when requested by Ceres 2. Selected set of promising [***] including [***] lines and [***] trialled to date sent to Ceres in [***] in 20[***] for trial in [***] 3. Samples of [***] of Year 1 [***] sent to Ceres, including a sample of [***] (Numbers of [***]?) 4. Approximately [***] from [***] (how many?) occurring in the field in 20[***] believed to be [***]x x [***]x sent to Ceres C. Advancing the [***] assisted [***] program as early as possible 1. DNA from about [***] plant [***] phenotyped in the field since 20[***] and first [***] delivered to Ceres in 20[***]. 2. DNA from about new [***] plant [***] in [***] in 20[***], other [***] and other selected [***] delivered to Ceres in 20[***] D. Advancing the [***] program 1. xxx new [***] of [***] x [***] made based on phenotypes and presumed [***] 2. xxx [***] of M [***] x other made Page 3 Confidential Treatment Requested and the Redacted Material has been separately filed with the Commission CERES-IGER SCHEDULE 1 April 1, 2007 Attachment B — Budget 3. [***] phenotype/[***] assessments of material in [***] since 20[***] reported and correlations made with assessments in years 1 and 2 and with [***] E. Advancing [***] research 1. Samples (how many?) and [***] (how many?) sent to Ceres F. Enhancing [***] 1. Additional [***] made and materials brought into [***] in IGER to fill in specific [***] needed for likely commercialization locations Year 2 (April 1 to March 31): A. [***] research to create an economically viable business 1. [***]/[***] variation affecting [***] amongst large range of [***] (numbers?) and their behaviour through the season/[***] reported; any clear winners [***] 2. [***]/[***] variation affecting [***] (numbers?) [***] and early growth across different [***] and [***] reported; any clear leaders [***] and sent to Ceres 3. XXX [***] of Miscanthus [***] ([***]) (good [***]) with Miscanthus [***] made and followed by [***] where necessary. [***<|eot_id|>
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3.18 Disclosures. 3.18.1 During the Development Term, each Party shall provide the other Party at meetings of the JSC (or in advance of such meetings as part of the information that may be distributed to JSC members prior to such meetings or, if no such meeting is held in a [***], directly to the other Party) at least once during each [***] with summaries of all data known to such Party material to obtaining Regulatory Approval, and material Product safety data in all indications (including but not limited to Serious Safety Issues), including such material data relating to efficacy, clinical sites, patient enrollment and drop-out rates, CMC and other material manufacturing data, and material communications with Regulatory Authorities. 3.18.2 PB shall (a) provide SFJ with quarterly unaudited financial statements and annual audited financial statements (the "PB Financial Statements") promptly following the availability thereof (and no later than the date filed with the SEC) and provide to SFJ on a quarterly basis concurrently with the applicable PB Financial Statements [***], (b) promptly notify SFJ of achieving the Successful Phase 3 Interim Analysis and the Phase 3 Success Criteria, and (c) on or prior to the end of each [***] during the Term [***]. At least [***] during the Term, upon SFJ's request, Executive Officers of PB shall meet with Executive Officers of SFJ to review and discuss PB's financial condition and operations. [***]. 3.18.3 PB shall provide prompt written notice (a "Going Concern Notice") to SFJ if (i) PB determines in accordance with GAAP that it is probable that PB will be unable to meet its obligations as they become due within one year after the date that PB's financial statements for the then-current quarter are issued, or available to be issued or (ii) a "Going Concern" footnote is included in any of the PB Financial Statements required to be delivered by PB to SFJ pursuant to Section 3.18.2 (a "Going Concern Condition"). During the applicable Going Concern Cure Period (as defined below), PB shall have the ability to remedy the Going Concern Condition through a restructuring of PB's costs and operations (provided that such restructuring does not adversely impact PB's ability to perform its obligations hereunder) or through raising additional capital in one or more financing or strategic transactions so as to enable PB to meet its obligations as they become due within such one year period including performing all of PB's obligations hereunder. "Going Concern Cure Period" shall mean the [***] period following delivery of a Going Concern Notice, provided that if SFJ does not offer and fund Going Concern Funding as set forth in Section 4.2.4 sufficient to remedy the Going Concern Condition within such [***] period, the Going Concern Cure Period shall be extended to [***] following delivery of such Going Concern Notice. Source: PHASEBIO PHARMACEUTICALS INC, 10-K, 3/30/2020 3.19 Exclusivity Commitment of SFJ. During the applicable Exclusive Period, SFJ shall not, and shall cause its Affiliates not to, either by itself or through a Third Party, conduct human clinical trials of, or sell, offer for sale or have sold: 3.19.1 any Competing Product (other than Product) alone or in combination (whether fixed dose or co-packaged) with one (1) or more other active ingredients; 3.19.2 any combination (whether fixed dose or co-packaged) with one (1) or more other active ingredients of the Product and a Competing Product; 3.19.3 any agent that is intended as an antidote to, or is intended to neutralize, abrogate or reverse the antiplatelet activity of, (i) any Brilinta Competing Product alone or in combination (whether fixed dose or co-packaged) with one (1) or more other active ingredients or (ii) both the Ticagrelor Compound and a Brilinta Competing Product; 3.19.4 without limitation to the foregoing, any agent with dual activity as (i) an antidote to, or for use as an agent to neutralize, abrogate or reverse the antiplatelet activity of, the Ticagrelor Compound and (ii) an antidote to, or for use as an agent to neutralize, abrogate or reverse the antiplatelet activity of, any Brilinta Competing Product; or 3.19.5 any Brilinta Competing Product. 3.20 Program Transfer. In the event that, at any time after payment to PB of the Initial Development Cost Payment on the Initial Funding Date, PB shall (a) fail to pay any amounts payable to SFJ hereunder within [***] of the date such payment is due, or (b) become in default of its obligations under the AZ License (excluding (x) any such default that would not entitle AZ to terminate the AZ License and (y) any such default that is caused by SFJ's breach of its obligations under this Agreement), or (c) (i) fail to remedy the Going Concern Condition within the Going Concern Cure Period as set forth in Section 3.18.3 or (ii) refuse to accept the Going Concern Funding if offered by SFJ as set forth in Section 4.2.4, then, SFJ may deliver written notice to PB electing to cause PB's business related to the Product to be transferred to SFJ (the "Program Transfer Notice"), and shall deliver a copy of the Program Transfer Notice to MedImmune concurrently with delivery to PB, and within [***] following the delivery of the Program Transfer Notice, PB and SFJ shall execute and deliver a Program Transfer Agreement in the form attached hereto as Exhibit O (the "Program Transfer Agreement") which shall effect the Program Transfer effective as of the date SFJ delivers the Program Transfer Notice to PB. For clarity, this Section 3.20 shall not be effective prior to payment to PB of the Initial Development Cost Payment on the Initial Funding Date. ARTICLE 4 DEVELOPMENT COSTS 4.1 Development Costs. SFJ will be obligated to pay or incur up to One Hundred Twenty Million U.S. Dollars ($120,000,000.00) of Development Costs ("Maximum Development Costs") in <|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>eement to be entered into between the Parties within [***] after the Effective Date (the "Clinical Supply Agreement"). The costs for the supply of the Product for the Clinical Trials in the US, the European Clinical Trial Countries and the SFJ Source: PHASEBIO PHARMACEUTICALS INC, 10-K, 3/30/2020 Territory (the "Product Supply Costs") will be borne by PB. Each Party will provide the JDC at each JDC meeting with quarterly reports regarding inventory of the Product and the reasonably anticipated needs for the Product to ensure that PB can supply the Product in accordance with the Clinical Supply Schedule. 3.14.2 Use of the Product. 3.14.2.1 SFJ will (i) in conducting the Clinical Trials, only use Product supplied by PB or such Third Parties designated by PB; (ii) only use the Product supplied by PB or Third Parties designated by PB, and require that its Permitted Third Parties that receive any of the Product supplied by PB or Third Parties designated by PB only use such Product, for the sole purpose of conducting the Clinical Trials in accordance with the respective Protocols; and (iii) ensure subject dosing compliance per the respective Protocols for the Clinical Trials conducted in the European Clinical Trial Countries or the SFJ Territory. Dosage and Administration Instructions will be provided to SFJ by PB sufficiently in advance of the Clinical Trials' commencement. 3.14.2.2 PB in the US, and SFJ in the European Clinical Trial Countries and the SFJ Territory, will be responsible for ensuring that the Product is administered solely to the Subjects in Clinical Trials conducted by such Party in accordance with the respective Protocols. For each dose administered to a Subject in a Clinical Trial conducted by such Party, such Party will implement procedures and ensure that records are maintained specifying the date and time that such dose of the Product is administered, the amount of the Product administered to such Subject, the lot number of the Product from which such dosage came, and the number of the Subject to which such dosage was administered. Each Party shall provide copies of such records to the other Party upon the other Party's reasonable request. 3.15 Complaints Related to the Product. During the Development Term, each Party will promptly forward to the other Party any complaints that it receives related to the Product. PB in the US, and SFJ in European Clinical Trial Countries and the SFJ Territory, will respond to any complaints of which such Party becomes aware relating to the Product provided that the other Party will provide reasonable cooperation in connection therewith. Notwithstanding the foregoing, if a complaint pertains to the manufacturing, appearance or general physical characteristics of the Product or other processes at the manufacturing facility, PB will be solely responsible for responding to such complaint. 3.16 Recall of the Product in Connection with Study Prior to Approval. If the Product is recalled for safety reasons or GMP non‑compliance prior to Regulatory Approval, PB in the US, and SFJ in European Clinical Trial Countries and the SFJ Territory, will be responsible for the operational execution of such recall. PB will cooperate with SFJ in connection with any such recall in European Clinical Trial Countries or the SFJ Territory. The costs for such any such recall will be at PB's expense and not be a Development Cost, unless such recall and/or costs were based on the material breach of this Agreement, intentional misconduct, or gross negligence of SFJ or any of its Affiliates or Permitted Third Parties, in which case, SFJ will bear the expense of any such recall and such expense will not be a Development Cost. Source: PHASEBIO PHARMACEUTICALS INC, 10-K, 3/30/2020 3.17 Compliance with Laws. SFJ and its Affiliates and PB and its Affiliates will comply, and each Party will use Commercially Reasonable Efforts to ensure that all Permitted Third Parties utilized by such Party comply, with all Applicable Laws with respect to the storage, handling, disposal and transfer of the Product, and each Party assumes sole responsibility for the violation of such Applicable Laws by such Party or any of its Affiliates or its Permitted Third Parties.<|eot_id|>
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an one half of one percent (0.5%) of the gross weight of any shipment of packaged product or less than one half of one percent (0.5%) of the net weight of bulk shipment. Seller shall have the right at all times to appoint an independent surveyor. TAXES All prices are exclusive of taxes, duties, or other governmental charges levied on or in respect of the product or delivery thereof. Buyer shall pay or reimburse Seller for such taxes, duties or charges. RISK AND TITLE TRANSFER Risk of loss of and damage to product shall pass to Buyer in accordance with the Incoterm specified in Seller's Order Confirmation or separate sales contract. Without negating Seller's warranty obligations hereunder, Buyer assumes all risk and liability for loss, damage, or injury to the person or property of Buyer or other parties arising out of the use or possession of any Product sold hereunder. Unless stated otherwise in Seller's Order Confirmation or separate sales contract, title in product shall pass to Buyer simultaneously with risk of loss of and damage to product. However, if the product is shipped by Seller from the US, such title and risk shall pass to Buyer at the first point at which the delivering vessel crosses the outer boundary of the US Exclusive Economic Zone (EEZ). The EEZ extends 200 nautical miles beyond the coastal baseline defined in the United Nations Convention on the Law of the Sea or as such term is used in the said Convention. WARRANTIES There are no warranties which extend beyond the description on the face hereof, and Seller makes no warranty, expressed or implied, of satisfactory quality, merchantability, fitness for any particular use or otherwise, except that the products sold hereunder shall meet Seller's applicable standard specifications or such other specifications as may be notified by Seller to Buyer from time to time. Buyer assumes all risk whatsoever as a result of the use of the products purchased, whether used singly or in combination with other substances or in any process. Without limiting the foregoing, Seller does not recommend nor endorse the use of product in any medical application and specifically disclaims any representation or warranty, express or implied, of suitability or fitness for use, or otherwise with respect to product's use in any medical application. Buyer represents and warrants that no product purchased hereunder will be Source: WEST PHARMACEUTICAL SERVICES INC, 8-K, 1/16/2020 used or resold for use in any commercial or developmental manner in connection with medical applications without Seller's prior express written acknowledgment. Further, Buyer agrees that it will make no representations, express or implied, to any person to the effect that Seller recommends or endorses the use of product purchased hereunder in any medical application. LIMITATION OF CLAIMS Seller's total liability for all claims arising hereunder or connected with the products sold hereunder, whether based in contract, tort or otherwise, shall be no greater than an amount equal to the purchase price of the products to which any such claims relate, or at the Seller's option, and only in the case of claims regarding defective or non-conforming product, to replacement of such products, provided that in all cases Buyer shall be under an obligation to mitigate any loss as far as possible. Seller shall not in any event be liable for any special, incidental, exemplary or consequential damages. Subject to the Clauses on Quantity, Transfer of Risk and Title Transfer, Buyer shall inspect and test product delivered hereunder for damage, defect or shortage immediately upon receipt and provide Seller notice of any such damage, defect or shortage within ten (10) days of receipt. Any claim must be accompanied by documents as required by Seller, including but not limited to a certified weigh scale ticket or an independent surveyor report, and Seller shall have an opportunity to an independent assessment. All claims for any cause whatsoever, whether based in contract, negligence or other tort, strict liability, breach of warranty or otherwise, shall be deemed waived unconditionally and absolutely unless Seller receives complete written details of such claim not later than [*****] after Buyer's receipt of product as to which such claim is made. Receipt will be deemed to have taken place for purposes of this subparagraph when the product has been loaded onto Buyer's transport, or offloaded from the vessel or other means of transport on which delivery has been made when delivery is arranged by Seller. LAYTIME AND DEMURRAGE Buyer shall unload tank containers, cars, trucks and barges furnished by Seller and clear products from port, or at delivery destination, within the free time specified by tariffs or time periods on file with applicable bodies, or promptly after receipt if no such tariffs or time periods are on file. Buyer shall pay charges resulting from its failure to do to Seller or directly to the common carrier upon receipt of invoice. For bulk marine shipment, demurrage charge at load port is for account of Seller and at discharge port for Buyer's account. For sales other than FOB sales, laytime allowed, demurrage rate and applicable charter party terms shall be as specified in Seller's vessel nomination to Buyer failing which, the terms in Seller's contract of affreightment with the vessel owner shall apply and Buyer shall pay Seller or the carrier the demurrage incurred at the discharge port by Seller's stipulated deadline. Subject to the foregoing, for the first discharge terminal, laytime shall commence six (6) hours after the vessel's notice of readiness is tendered to Buyer (or its agent) or upon the vessel being all fast to the discharge terminal, whichever occurs first, and for subsequent discharge terminal(s), laytime shall commence immediately when the vessel's notice of readiness is tendered to Buyer (or its agent). Laytime shall cease upon disconnection of all cargo hoses upon completion of discharge. For FOB sales, vessels nominated by Buyer are subject to Seller's screening, inspection and acceptance process and Seller's agreement to loading-date range duration / loading-date range narrowing profile / loading-date range communication leadtime and other shipping logistics, and any claim for demurrage by Buyer shall be waived unless notice in writing of such claim is received by Seller with full supporting documentation (including the invoice and time sheet issued by the vessel) by Seller's stipulated deadline. FAILURE IN PERFORMANCE Failure by Seller to deliver on a specific date shall not entitle Buyer to repudiate this Agreement. Buyer shall not be relieved of any obligations to accept or pay for products by reason of any delay in delivery or dispatch. Furthermore, no liability shall result to either party for delay in performance or non-performance of an obligation hereunder (except an obligation to make payment) in whole or in part caused by circumstances reasonably beyond the control of the party affected, including but not limited to acts of God, terrorist activity, transportation failure, breakdowns, equipment failure, shortage or inability to obtain product or raw material for product, or good-faith compliance with any governmental order or request (whether valid or invalid) . Regardless, however, of the occurrence or nonoccurrence of any such circumstances, if for a<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>s before its effective date shall constitute acceptance. If Buyer does deliver such objections within the deadline, no delivery shall be made until parties agree on the new price, freight and/or payment terms. [*****] QUANTITY Quantity of all shipments shall be determined by Seller and shall have a shipping allowance of plus or minus five percent (+/-5%) of the quantity indicated in Seller's Order Confirmation or separate sales contract, or such other percentage as determined by Seller. To allow for standard tolerances of scales, Seller will not consider any claims for shortages of less th<|eot_id|>
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Franchised Business from the Premises without our prior written consent. You may only use the Premises for the purpose of operating your Franchised Business and for no other purpose. You may not sublet or otherwise allow any other party to operate any enterprise at your Premises without our prior written approval. 5. TRAINING 5.1. Initial Training Program 5.1.1. Before you begin operating, the two persons who you designate (and who we find acceptable) to provide managerial responsibilities (each a "Manager Trainee") must all successfully attend (at the same time) and successfully complete our initial training program (we may designate portions of the training program that each person must attend and successfully complete), which is held at our headquarters and/or another location(s) that we specify. One Manager Trainee must be your Operating Principal (who meets the criteria in Section 6.15 of this Agreement), unless we mutually agree otherwise. You may designate another person who will be active in the day-to-day activities and management of the Franchised Business to be the second Manager Trainee. You may ask that additional employees be allowed to attend the portions of the initial training that are designed for your employees, and we will have the right to approve or disapprove that request. All trainees must be persons that we find acceptable at all times to serve in their respective capacities. As of the Effective Date, our training program has two components, as follows: (a) An Advanced Operations Course for your Operating Principal, which consists of up to twelve days for your Operating Principal and is conducted at our training facilities in Broward County, Florida, or at another location that we may specify in writing. (b) A Basic Operations Course for any Manager Trainee other than your Operating Principal, which consists of up to twelve days of training and is conducted at our training facilities in Broward County, Florida, or at another location that we may specify in writing. Your Manager Trainees (other than your Operating Principal), and such of the Franchisee's other employees as we designate must attend this component of training. 5.1.2. We will issue a certificate of completion for each Manager Trainee who completes the initial training program we require to our satisfaction (each such person will be referred to as a "Certified Manager"). We have the right to determine whether a person has or has not successfully completed training. If you (or your personnel) fail to complete initial training to our satisfaction, we may permit you (or they) to repeat the course or allow you to send a substitute to the next available scheduled training session; however, we will have no obligation to extend the opening deadline in Section 4 for this purpose. Page 10 of 39 Source: PF HOSPITALITY GROUP INC., 10-12G, 9/23/2015 5.1.3. We have the right to reduce the duration or content of the training program for any trainee who has prior experience with our concept or in similar businesses. We also may allow you to train certain of your managers (which may include Certified Managers) and successors in those positions at your location. 5.1.4. Failure to complete the initial training program constitutes grounds for termination, as provided in Section 15 of this Agreement. 5.2. Opening Training and Assistance. We provide up to fourteen (14) days of pre-opening training and opening assistance at your Premises. The Operating Principal and the other Manager Trainee and such of your other employees as we designate must attend this component of training, which will begin approximately seven days before the Opening Date and conclude approximately seven days thereafter. 5.3. Additional Training by Us. We may require your Certified Managers and/or other designated persons to successfully complete additional training courses during the Term of this Agreement at a location that we specify (including an annual conference for franchisees in the System). We may also offer optional training programs. You may also request that we provide additional training at the location of your Franchised Business, and we will provide such training if we determine that we are able to do so. We may charge you a training fee and our out-of-pocket expenses for all additional training programs, whether mandatory or optional, or whether you request or we require such training, which fee shall be as set forth in the Manual or otherwise in writing. 5.4. Training by You. We have the right to specify training programs related to the System that you must conduct for your employees using approved training materials or that we will provide at our headquarters. For any training of your personnel that we conduct, you are responsible for expenses incurred while they attend training, including salaries, benefits, travel, lodging, meals, and other related expenses. We reserve the right to charge you for training additional personnel. 5.5. Training Materials and Methods. All training materials that we provide to you remain our property. We have the right to provide training programs in person, on tape, via the Internet or other electronic means, or by other means and media, as we determine. 5.6. Expenses. We will provide instructors, facilities, and materials for the initial training program at no charge, provided that all of your personnel are trained during the same training session. We reserve the right to charge a reasonable fee for training additional personnel (in excess of two), re-training persons who are repeating the course or replacing a person who did not pass. For all training, including initial training, you are responsible for any travel expenses, living expenses, wages, and other expenses incurred by your trainees. 6. OPERATIONS 6.1. Compliance with Standards. You agree to comply with all mandatory specifications and procedures set forth from time to time in our confidential operating manual (the "Manual"). You acknowledge that the accounting practices, record keeping, software, services, and operation of your Franchised Business are important to us and our other franchisees. However, you acknowledge that we have the right to vary our stand<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>sabilities Act ("ADA")). (b) After obtaining any required governmental approvals and clearances, you must submit to us, for our approval, final plans for construction based upon the preliminary plans and specifications. Once approved by us, such final plans may not be changed or modified without our prior written consent. (c) You must employ a qualified, licensed general contractor to construct the Franchised Business and complete all improvements. (d) Your architect or engineer must also comply with all applicable zoning, signage, seating capacity, parking requirements and alcoholic-beverage (i.e., beer and wine products that we designate or approve) licensing and storage requirements. (e) Within 10 days after commencing construction, you must provide us with written notice of the date you began construction. 4.3.3 We may require that you provide us a written certification from your registered architect that the Franchised Business has been constructed, furnished, equipped, and decorated in accordance with approved plans and specifications. 4.3.4 We may recommend that you use a construction project manager that we designate for constructing the Premises. If we do so and you choose not to use our recommended construction manager, you must hire a general contractor who is reasonably acceptable to us and who must have the following minimum insurance coverage: (a) commercial general liability in an amount of $2,000,000 combined single limit; (b) comprehensive automobile liability for owned, hired and non-owned motor vehicles in an amount of $1,000,000 combined single limit; (c) workers' compensation, occupational diseases and disability benefits in accordance with applicable statutory requirements; (d) employers' liability in an amount of $1,000,000; (e) employee fidelity bond of $2,000,000; and (f) umbrella form excess liability insurance in excess of the limits provided by the commercial general liability policy required above with limits of $3,000,000 per occurrence and annual aggregate. Page 9 of 39 Source: PF HOSPITALITY GROUP INC., 10-12G, 9/23/2015 4.3.5 Before you can open for business, you must satisfy all of our pre-opening requirements, whether they are set out in this Agreement, the Manuals, or as we may otherwise specify, and you must obtain our written approval prior to opening the Franchised Business. You must open the Franchised Business within seven days after obtaining our written approval for opening, unless we agree in writing to extend this deadline. 4.4. Our Review. Any reviews that we conduct under this Section 4 are only for our benefit. You acknowledge that our review and approval of a site, lease, sublease, design plans or renovation plans for a Franchised Business do not constitute a recommendation, endorsement, or guarantee of the suitability of that location or the terms of the lease, or sublease, or purchase agreement. You agree that you will take all steps necessary to determine for yourself whether a particular location and the terms of any lease, sublease, or purchase agreement for the site are beneficial and acceptable to you. 4.5 Opening Deadline. You must begin operating the Franchised Business by the opening deadline specified in Appendix A. The date you actually open the Franchised Business is the "Opening Date." 4.6 Relocation and other Uses of the Premises. You may not relocate the<|eot_id|>
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f all reports or other communications (financial or other) furnished to stockholders of the Company, and to furnish to the Remarketing Agents as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which the Securities or any class of securities of the Company is listed (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its stockholders generally or to the 20 Commission), provided that reports and financial statements furnished to or filed with the Commission, and publicly available on EDGAR, or furnished on the Company's website, shall be deemed to have been furnished to the Remarketing Agen<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>e Registration Statement, the Disclosure Package, the Final Prospectus or any Preliminary Prospectus or, when taken together with the Disclosure Package and any other such Issuer Free Writing Prospectus, included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, to promptly notify the Remarketing Agents and, if requested by the Remarketing Agents, to promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission; provided, however, that this covenant shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Company by any Remarketing Agent expressly for use therein; (e) To furnish the Remarketing Agents with copies of any Issuer Free Writing Prospectus or the Final Prospectus in such quantities as the Remarketing Agents may from time to time reasonably request, and if, at any time prior to the earlier of (i) the completion of the distribution of the Remarketed Securities and (ii) the expiration of nine months after the date of the Final Prospectus, any event shall have occurred as a result of which any Issuer Free Writing Prospectus or the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Issuer Free Writing Prospectus or the Final Prospectus were delivered, not misleading, or, if for any 19 other reason it shall be necessary during such period to amend or supplement any Issuer Free Writing Prospectus or the Final Prospectus or to file under the Exchange Act any document incorporated by reference in any Issuer Free Writing Prospectus or the Final Prospectus in order to comply with the Act or the Exchange Act, (i) to notify the Remarketing Agents and (ii) upon their request to prepare and furnish without charge to each Remarketing Agent and to any dealer in securities as many copies as such Remarketing Agent may from time to time reasonably request of an amended Issuer Free Writing Prospectus or a supplement to the Final Prospectus or an amended Final Prospectus which will correct such statement or omission or effect such compliance; and any Issuer Free Writing Prospectus and the Final Prospectus and any amendments or supplements thereto furnished to the Remarketing Agents shall be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T; (f) To make generally available to securityholders of the Company as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158); (g) During the period beginning from the Applicable Time and continuing to and including the Remarketing Settlement Date for the Remarketed Securities, not to offer, sell, contract to offer or sell or otherwise dispose of any debt securities of the Company having pricing characteristics similar to the Securities exceeding an aggregate principal amount of $3 billion, except, for the avoidance of doubt, debt securities issued under the Global Medium Term Note Program of Metropolitan Life Global Funding I, Global Medium Term Note Program of MetLife Institutional Funding II, or any commercial paper program of, or sponsored by, the Company or any subsidiaries, without the prior written consent of the Remarketing Agents, which consent shall not be unreasonably withheld; (h) During a period of five years from the effective date of the Registration Statement, to furnish to the Remarketing Agents copies o<|eot_id|>
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t, such Party shall be excused from performance hereunder so long as such event continues to prevent such performance, and provided the non-performing Party takes all reasonable steps to resume full performance. 16.15 COMPLIANCE WITH LAWS. Each Party shall comply with all prevailing laws, rules and regulations and obtain all necessary approvals, consents and permits required by the applicable 24 25 Source: NEOFORMA INC, S-1/A, 12/2/1999 agencies of the government of the jurisdictions that apply to its activities or obligations under this Agreement. 16.16 EXECUTION IN COUNTERPARTS, FACSIMILES. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. This Agreement shall become binding when any one or more counterparts hereof, individually or taken together, bear the signatures of both Parties hereto. For the purposes hereof, a facsimile copy of this Agreement, including the signature pages hereto, shall be deemed an original. [The remainder of this page is intentionally left blank.] 25 26 IN WITNESS WHEREOF, the Parties to the Agreement by their duly authorized representatives have executed this Agreement as of the date first written above. VERTICALNET, INC. NEOFORMA.COM, INC. By: /s/ MARIA V. SHAFFER By: /s/ FREDERICK RUEGSEGGER -------------------------------- --------------------------------- Maria V. Shaffer Vice President, Business Development and International Title: CFO ------------------------------ 27 EXHIBIT A CATEGORIES OF LABORATORY PRODUCTS PRODUCT GROUPING PRODUCT CLASSIFICATION POINTS TO - ---------------- ---------------------- --------- Analytical Instruments Analytical Inst-other Analytical Inst-other Analytical Instruments Atomic Absorption Atomic Absorption Analytical Instruments Balances Balances Analytical Instruments Chemistry Analyzers Chemistry Analyzers Analytical Instruments Chrom-Data Chrom-Data Analytical Instruments Chrom-GC Chrom-GC Analytical Instruments Chrom-HPLC Chrom-HPLC Analytical Instruments Chrom-Other Chrom-Other Analytical Instruments Chrom-TLC Chrom-TLC Analytical Instruments Colorimeter Colorimeter Analytical Instruments Computer Equipment Computer Equipment Analytical Instruments Electron Microscope Electron Microscope Analytical Instruments Electronics - Lab Electronics - Lab Analytical Instruments Elemental Analysis Elemental Analysis Analytical Instruments Infrared IR/UVVIS/XRAY Analytical Instruments Mass Spectrometer Mass Spectrometer Analytical Instruments Particle Size Particle Size Analytical Instruments pH / ISE pH / ISE Analytical Instruments Physical Property Test Physical Property Test Analytical Instruments Polarimeter Polarimeter Analytical Instruments Spectrophotometer Spectrophotometer Analytical Instruments Temperature Equip Temperature Equip Analytical Instruments Titrators Titrators Analytical Instruments Universal Tester Universal Tester Analytical Instruments UV / VIS IR/UVVIS/XRAY Analytical Instruments Viscometer Viscometer Analytical Instruments X-Ray IR/UVVIS/XRAY Biotechnology Biotech-other Biotech-other Biotechnology Electrophoresis Electrophoresis Biotechnology Fermenters Fermenters Biotechnology Microplates Microplates Biotechnology Molecular Biology Molecular Biology Biotechnology Scintillation Counters Scintillation Counters Clinical Laboratory Clinical Lab - Other Clinical Lab - Other Clinical Laboratory Blood / Gas Analyzers Blood / Gas Analyzers Clinical Laboratory Blood Collection Blood Collection Clinical Laboratory Clinical Chemistry Analyzer Clinical Chemistry Analyzer Clinical Laboratory Hematology Hematology Clinical Laboratory Medical Equipment Medical Equipment Clinical Laboratory Microbiology Microbiology 28 Clinical Laboratory Other Body Fluid Analyzer Other Body Fluid Analyzer Clinical Laboratory Slide Stainers Histology Glassware Beakers Beakers Glassware Bottles Bottles Glassware Condensers Condensers Glassware Flasks Flasks Glassware Funnels Funnels Glassware Glass-other Glass-other Glassware Tubes Tubes Glassware Vials Vials Lab Equipment Animal Care Animal Care Lab Equipment Antiques Antiques Lab Equipment Autoclaves Autoclaves Lab Equipment Baths, Water/Oil/Dry Baths, Water/Oil/Dry Lab Equipment Books/Manuals Books/Manuals Source: NEOFORMA INC, S-1/A, 12/2/1999 Lab Equipment Centrifuge Centrifuge Lab Equipment Chillers Chillers Lab Equipment Cleaners Cleaners Lab Equipment Critical Environments Critical Environments Lab Equipment Digesters Digesters/Mixers Lab Equipment Environmental Chambers Environmental Chambers Lab Equipment Evaporators Evaporators Lab Equipment Filtration Filtration Lab Equipment Fraction Collectors Fraction Collectors Lab Equipment Freeze Dry/Lyoph Freeze Dry/Lyoph Lab Equipment Freezers / Refrigerators Freezers / Refrigerators Lab Equipment Fume Hoods Fume Hoods Lab Equipment Furnaces Furnaces Lab Equipment Furniture - Lab Furniture - Lab Lab Equipment Glove Boxes Glove Boxes Lab Equipment Heating Apparatus Heating Apparatus Lab Equipment Histology Histology Lab Equipment Hotplates / Stirrers Hotplates / Stirrers Lab Equipment Incubators Incubators Lab Equipment Lab Equipment - Other Lab Equipment - Other Lab Equipment Liquid Handling / Pipettors Liquid Handling / Pipettors Lab Equipment Metallurgical Metallurgical Lab Equipment Microtomes Histology Lab Equipment Mixers Digesters/Mixers Lab Equipment Mobile Lab Mobile Lab Lab Equipment Motors Motors Lab Equipment Optics Optics Lab Equipment Ovens Ovens Lab Equipment Petroleum Lab Petroleum Lab Lab Equipment Pharmaceutical Pharmaceutical Lab Equipment Photography Photography 29 Lab Equipment Process / Pilot Process / Pilot Lab Equipment Pumps Pumps Lab Equipment Radioactivity Radioactivity Lab Equipment Recorders Recorders Lab Equipment Regulators / Gauges Regulators / Gauges Lab Equipment Robotics Robotics Lab Equipment Safety Safety Lab Equipment Semi-Conductor Semi-Conductor Lab Equipment Shakers Shakers Lab Equipment Stirrers / Hotplates Stirrers / Hotplates Lab Equipment Vacuum Vacuum Lab Equipment Valves / Fittings Valves / Fittings Lab Equipment Water Purification Water Purification LabSupplies Chemicals Chemi<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>addressed as follows, or to such other addresses as may be specified in a Notice given hereunder: If to VerticalNet: with a copy to: Attn: General Counsel Attn: Mario V. Shaffer VerticalNet, Inc. VerticalNet, Inc. 700 Dresher Road, Suite 100 700 Dresher Road, Suite 100 Horsham, Pennsylvania 19044 Horsham, Pennsylvania 19044 Fax No.: (215) 443-3336 Fax No.: (215) 784-1960 If to Neoforma: with a copy to: Attn: Chief Financial Officer Attn: Ralph M. Pais, Esq. Neoforma, Inc. Fenwick & West LLP 3255-7 Scott Boulevard Two Palo Alto Square Santa Clara, CA 95054 Palo Alto, CA 94306 Fax No.: 408-549-6211 Fax No.: 650-494-1417 A Notice shall be deemed to be effective upon personal delivery or, if sent via overnight delivery, upon receipt thereof. A Notice sent via facsimile is deemed effective on the same day (or if such day is not a business day, then on the next succeeding business day) if such facsimile is sent before 5:00 p.m. Philadelphia time and on the next day (or if such day is not a business day, then on the next succeeding business day) if such Notice is sent after 5:00 p.m. Philadelphia time. 16.6 AMENDMENT OR MODIFICATION. No subsequent amendment, modification or waiver of any of the provisions of this Agreement shall be effective unless in writing and signed by the Parties. 16.7 ENTIRE AGREEMENT. This Agreement sets out the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior agreements, proposals, arrangements and communications, whether oral or written, with respect to the subject matter hereof. 23 24 16.8 SEVERABILITY. If any provision of this Agreement is held by a tribunal of competent jurisdiction to be illegal, invalid, or otherwise unenforceable in any jurisdiction, then to the fullest extent permitted by law (a) the same shall not effect the other terms or provisions of this Agreement, (b) such term or provision shall be deemed modified to the extent necessary in the tribunal's opinion to render such term or provision enforceable, and the rights and obligations of the Parties shall be construed and enforced accordingly, preserving to the fullest extent the intent and agreements of the Parties set forth herein and (c) such finding of invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such term or provision in any other jurisdiction. 16.9 NO WAIVER. Failure to enforce any term of this Agreement is not a waiver of future enforcement of that or any other term. No term or provision of this Agreement will be deemed waived and no breach excused unless such waiver or excuse is in writing and signed by the Party against whom enforcement of such waiver or excuse is sought. 16.10 SURVIVAL. Sections 10.7 [PAYMENT TERMS]-10.10 [INTEREST], 11.3 [UPON TERMINATION] and 12-16; any payment obligations of the Parties hereunder accruing prior to the date of termination; and any other provision herein expressly surviving termination or necessary to interpret the rights and obligations of the Parties in connection with the termination of the term of this Agreement will survive the termination or expiration of this Agreement. 16.11 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement is intended to confer benefits, rights or remedies unto any person or entity other than the Parties and their permitted successors and assigns. 16.12 WAIVER OF JURY TRIAL. Each Party hereby irrevocably waives all rights a Party may have to a trial by jury in any legal action or proceeding arising out of or in connection with this Agreement or the transactions contemplated hereby. 16.13 TITLES. The headings appearing at the beginning of the Sections contained in this Agreement have been inserted for identification and reference purposes only and shall not be used to determine the construction or interpretation of this Agreement. The nomenclature of the defined terms in this Agreement shall only be used for the construction of this Agreement, and are not to be used for any other purpose, including, but not limited to, interpretation for accounting purposes. 16.14 FORCE MAJEURE. Neither Party shall be held to be in breach of this Agreement by reason of a force majeure event, including, but not limited to, act of God, delay in transportation, fire, flood, earthquake, storm, war, act of a public enemy, civil commotion or any law, rule, regulation, order or other action by any public authority or any other matter reasonably beyond a Party's control. To the extent failure to perform is caused by such a force majeure even<|eot_id|>
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he data and data compilations contained therein, which shall be deemed to be owned by LBIO) and any patient medical records. 5.3 Electronic Transfer. In addition to MD Anderson's reporting obligations under Section 5.2, no less than once per calendar quarter, MD Anderson shall provide to LBIO an electronic transfer of all data and results (including all raw data and process data) generated through the performance of the Research. 5.4 Other Notifications. During the performance of the Research, MD Anderson shall notify LBIO promptly if the Research reveals any unexpected result or any accident or harm occurs, and shall also comply with any safety notifications required under each Study Order. 10 6. Confidentiality and Publications. 6.1 Confidential Information. (a) "Confidential Information" means any proprietary or confidential information, technical data, trade secrets or know-how, including research, product plans, products, services, customer lists and customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, marketing, distribution and sales methods and systems, sales and profit figures, finances and other business information disclosed by a Party or its Representatives ("Disclosing Party") to the other Party or its Representatives ("Receiving Party"), whether in writing, orally or by drawings or inspection of documents or other tangible property; provided that: (i) Confidential Information shall not include any of the foregoing items to the extent that (1) they are or have become publicly known and made generally available through no wrongful act of Receiving Party, (2) they were known to Receiving Party prior to disclosure by Disclosing Party, as evidenced by pre-existing written records promptly provided to Disclosing Party by Receiving Party, (3) they were disclosed to Receiving Party without an obligation of confidentiality by a third party having a lawful right to make such disclosure, or (4) they were developed by Receiving Party without use or aid of Disclosing Party's Confidential Information, and (ii) the results of the Research (including the contents of each Report and any Inventions) shall be deemed to be LBIO's Confidential Information, subject to MD Anderson's right to publish any Research data and information as set forth in and in accordance with Section 6.4, MD Anderson's right to use any Inventions (and any Work) as set forth in and in accordance with Section 7.2, and MD Anderson's right to use any Research data and information for internal research, academic, and non-commercial patient care purposes prior to publication or public disclosure and for any purpose thereafter. LBIO shall be deemed the Disclosing Party with respect to such results of the Research, regardless of the Party initially disclosing the same. (b) Receiving Party shall take reasonable steps to ensure that Disclosing Party's Confidential Information (as defined in Section 6.1(a)) is maintained in confidence, used only for the purpose of exercising rights and performing obligations under this Agreement, and disclosed only to persons and/or entities authorized under this Agreement. As used herein, "reasonable steps" means the steps that Receiving Party takes to protect its own, similar confidential and proprietary information, which shall not be less than a reasonable standard of care. Receiving Party further agrees not to reveal, publish or otherwise disclose Disclosing Party's Confidential Information to any third party without the prior written consent of Disclosing Party as described in Section 6.4 below, however, Receiving Party is permitted to disclose Confidential Information obtained under the terms of this Agreement to its Representatives on a need-to-know basis related to the exercise of rights and performance of its obligations under this Agreement and only if such Representatives are informed by Receiving Party of the confidential nature of such information and are bound by confidentiality obligations consistent with those set forth in this Section 6.1. Receiving Party shall ensure that its Representatives having a need- to-know Disclosing Party's Confidential Information observe these obligations of confidentiality. These obligations of confidentiality and nondisclosure shall remain in effect after the termination or expiration of this Agreement for a period of five (5) years. 11 (c) Neither Party shall improperly use or disclose to the other Party or any of its directors, officers, employees or agents, any confidential information of any current or former client or other person or entity with whom such Party has an agreement or duty to keep such information confidential, and such Party shall not bring onto the premises of the other Party any such information in any medium unless consented to in writing by such client, person or entity. In the event of a Party's breach of this Section 6.1(c), the breaching Party shall ensure that the other Party may freely and fully utilize the information so disclosed for any and all purposes. 6.2 Required Disclosure of Confidential Information. (a) If Receiving Party is required by Law or court order to disclose Disclosing Party's Confidential Information, Receiving Party shall give Disclosing Party prompt written notice of such requirement such that Disclosing Party shall have the opportunity to apply for a protective order, injunction or for confidential treatment of such Confidential Information. Receiving Party shall cooperate with Disclosing Party in seeking any Disclosing Party requested protective order, injunction or confidential treatment of such Confidential Information and shall only disclose the minimal amount of such Confidential Information required under Law or court order. Notwithstanding the forgoing, any information disclosed by Receiving Party pursuant to Law or a court order shall remain Confidential Information hereunder, and may not be disclosed under any other circumstances unless and until the Confidential Information so disclosed falls into one of the exceptions set forth in subclauses (1) through (4), inclusive, in Section 6.1(a). (b) If Principal Investigator is a member of or affiliated with any committee that sets formularies or de<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>he Maximum Enrollment Target (as defined in Exhibit 1) then this table shall be applied to the incremental additional patients as if the incremental additional patients constitute their own protocol/budget. For example, if LBIO decides to add ten (10) additional patients to the clinical study in Exhibit 1, each patient will be accrued at $[* * *] per patient, and LBIO will be invoiced for percentage enrollment of these ten (10) patients based on the table above. 8 (b) In the event that the Study Order covers activities other than the performance of a clinical trial, a payment schedule will be set forth in the relevant Study Order. (c) Notwithstanding the foregoing, LBIO may suspend payment if, in LBIO's reasonable opinion after review of the Reports (as defined below), MD Anderson has not been performing the Research diligently and in the manner agreed upon herein. (d) Upon the occurrence of one of the milestones identified in the table in Section 4.3(a), or described in an applicable Study Order for a non-clinical Study according to Section 4.3(b), MD Anderson shall invoice LBIO for the related payment amount. In each case, invoices shall be itemized, including by reference to Study Order title, and otherwise shall include such supporting documentation as LBIO may reasonably request. LBIO shall pay all undisputed invoices within thirty (30) days of receipt of such invoice. (e) If the Study described in Exhibit II is not commenced, the portion of the Upfront Payment that would have been applied to that Study ($[* * *]) will be credited by MD Anderson towards the Studies described in Exhibit I and Exhibit III. (f) All terms and payments of compensation, benefits, and any other conditions of engagement, including payment of taxes, for any person working with Principal Investigator and any other support staff who may be used in the performance of a Study (including any Sub- Investigator) shall be solely a matter between MD Anderson and such individuals. Principal Investigator and any MD Anderson personnel shall not be deemed to be employees of LBIO or entitled to any benefits offered by LBIO to LBIO's employees. 5. Records and Reports. 5.1 Records. MD Anderson shall, and shall cause its Representatives to, keep appropriate records of the Research, including laboratory notebooks, in accordance with MD Anderson policies and all Laws, sufficient to properly document the results of the Research and otherwise sufficient to determine identity and dates of inventorship of Inventions (as defined in Section 7.1(a)). MD Anderson shall make such records available to LBIO upon reasonable notice during MD Anderson's normal business hours. LBIO may use the records and Reports (as defined below) for any purpose, including interactions and communications with, and/or submissions and filings to the applicable governmental or regulatory authorities. 9 5.2 Reports. MD Anderson, through the Principal Investigator, shall provide to LBIO (a) interim written reports regarding the Research, no less than once per calendar quarter, and (b) on Study-by-Study basis, (i) a draft final written Study report within thirty (30) days after completion (or earlier termination) of each such Study and (ii) a final written Study report within thirty (30) days after receipt of LBIO's comments to the draft final written Study report with respect to each such Study, which shall be given by LBIO not later than thirty (30) days after LBIO's receipt of the draft final Study report (collectively, the "Reports"); provided, that, if this schedule of reports differs from the reporting obligations provided in a Study Order, the schedule listed in the Study Order shall be followed. LBIO shall own all Reports and data compilations resulting from the Research, excluding the physical original lab notebooks themselves (but not excluding t<|eot_id|>
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blicensing and Subcontracting 11 2.3 Trademarks and Housemarks 12 2.3.1 Trademarks 12 2.3.2 Housemarks 12 2.3.3 Ownership of Inventions 12 ARTICLE 3 GOVERNANCE OF DEVELOPMENT AND COMMERCIALIZATION OF PRODUCTS 13 3.1 Joint Steering Committ<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>Exhibit 10.1 COLLABORATION AGREEMENT by and between THERAVANCE, INC. and GLAXO GROUP LIMITED Dated: November 14, 2002 TABLE OF CONTENTS ARTICLE 1 DEFINITIONS 1 ARTICLE 2 RIGHTS AND OBLIGATIONS 11 2.1 License Grants from Theravance to GSK 11 2.1.1 Development License 11 2.1.2 Commercialization License 11 2.1.3 Manufacturing License 11 2.2 Su<|eot_id|>
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cite estimates, but does not guarantee, delivery of [*****] impressions of the email messages described in this Section 4 during [*****] of the term of this Agreement and [*****] impressions during [*****] of the term of the Agreement. 4 5 CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS. c) Excite and Client agree that Client may purchase additional DeliverE messages during the term of this Agreement at a rate of [*****] impressions ("CPM"), subject to availability. 5. ADVERTISING ON THE EXCITE NETWORK a) Excite will display Client's banner advertising on [*****] in response to the keywords set forth in Exhibit A as amended from time to time by Client, and with additional keywords related to Vitamins, subject to availability, during the term of the Agreement. Excite estimates, but does not guarantee, the display of [*****] impressions of the banner advertisements described in this Section 5(a) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement. b) Excite will display Client's banner advertising in [*****] during the term of the Agreement. Excite estimates, but does not guarantee, the display of [*****] impressions of the banner advertisements described in this Section 5(b) during [*****] of the term of the Agreement and [*****] such during [*****] of the term of the Agreement. c) Excite will display Client's banner advertising in [*****] during the term of the Agreement. Excite estimates, but does not guarantee, the display of [*****] impressions of the banner advertisements described in this Section 5(c) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement. d) Excite will display Client's banner advertising in [*****] during the term of the Agreement. Excite estimates, but does not guarantee, the display of [*****] impressions of the banner advertisements described in this Section 5(d) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement. 6. LAUNCH DATE, RESPONSIBILITY FOR EXCITE NETWORK AND REPORTING a) Client and Excite will use reasonable efforts to implement the display of the promotional placements and advertising described in the Agreement by October 1, 1998 (the "Scheduled Launch Date"). The parties recognize that the Scheduled Launch Date can be met only if Client provides final versions of all graphics, text, keywords, banner advertising, promotional placements, other promotional media and valid URL links necessary to implement the promotional placements and advertising described in the Agreement (collectively, "Impression Material") to Excite fourteen (14) days prior to Scheduled Launch Date. 5 6 CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS. b) In the event that Client fails to provide the Impression Material to Excite fourteen (14) days in advance of the Scheduled Launch Date, Excite may, at its sole discretion (i) reschedule the Scheduled Launch Date at the earliest practicable date according to the availability of Excite's engineering resources after delivery of the complete Impression Material or (ii) commence delivery of Impressions based on Impression Material in Excite's possession at the time. c) Client and Excite agree that the day the promotional placements and advertising described in this Agreement are first displayed on the Excite Network will be the "Launch Date" for purposes of this Agreement. d) Excite will have sole responsibility for providing, hosting and maintaining, at its expense, the Excite Network. Excite will have sole control over the "look and feel" of the Excite Network including, but not limited to, the display, appearance and pla<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|> and adverse effects. 2. SPONSORSHIP ON THE WEBCRAWLER SHOPPING CHANNEL a) Client will be promoted as the preferred and dominant reseller of Vitamins in the Shopping Channel on the WebCrawler Site during the term of this Agreement. As such, Excite may not display banner advertising and/or promotional placements for any of Client's Competitors that are, in the aggregate, of equal or greater prominence and exposure than the aggregate of Client's links, advertising banners and promotional placements on the pages of the Shopping Channel or the WebCrawler Site. Notwithstanding the foregoing, Excite may display links to Excite's own products and services anywhere in the Excite Network, and may display links to Client's Competitors in results pages of search services in response to user queries, in general directories of Web sites, in classified advertising listings and in results in the "Jango" shopping search service throughout the Excite Network. b) A link to the Client Site (consistent with the format used on similar links on the same page) will be displayed in rotation on the first page of the health & fitness department of the WebCrawler Shopping Channel during the term of the Agreement. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placement described in this Section 2(b) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement. c) A link to the Client Site (consistent with the format used on similar links on the same page) will be displayed under the health foods category on the first page of the health & fitness groceries department of the WebCrawler Shopping Channel. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placement described in this Section 2(c) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement. 3 4 CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS. 3. ADDITIONAL SPONSORSHIP a) The parties will cooperate in good faith to identify and implement selective sponsorship and promotional opportunities for Client in the Nutrition & Vitamins department of the Health Channel on the Excite Site. Such opportunities may include sponsorship links, sponsorship boxes and/or promotional boxes. The parties hereby acknowledge that Client will be sharing such opportunities in the Nutrition & Vitamins department of the Excite Health Channel with one other reseller of vitamins. b) The parties will cooperate in good faith to identify and implement selective sponsorship and promotional opportunities for Client on the Excite Japan Site. Such opportunities may include sponsorship links, sponsorship boxes and/or promotional boxes. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placements described in this Section 3(b) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement. c) Excite estimates, but does not guarantee, delivery of a total of [*****] impressions of the Client promotional placements described in Sections 3(a) and 3(b) during the term of this Agreement. 4. DeliverE MESSAGE PROMOTIONS a) Excite and Client will cooperate in developing and delivering MatchLogic DeliverE message campaigns during the term of the Agreement as described in Exhibit B. The MatchLogic DeliverE is an opt in email service providing the opportunity to distribute messages to highly targeted audiences on the Web via email. All such message campaigns will comply with Excite's then current privacy policy which is located at http://www.excite.com/privacy_policy and is subject to change from time to time. If the privacy policy changes in a manner that has a material adverse effect on the value, functionality or implementation of the DeliverE message campaign for Client, Excite will notify Client, which will then have the option to cancel future DeliverE campaigns and both parties will be relieved of their obligations related to those canceled DeliverE campaigns, if Client, in its sole but reasonable discretion, finds such changed privacy policy objectionable. b) Ex<|eot_id|>
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ll be entitled to terminate this Agreement upon the other party seeking an order for relief under the bankruptcy laws of the State of Israel or similar laws of any other jurisdiction, a composition with or assignment for the benefit of creditors, or dissolution or liquidation. NICE shall be entitled to terminate this Agreement upon the merger or acquisition of all or substantially all the business or assets of Contractor (except if within the Flextronix's group and provided Contractor remains an Israeli entity). 16.6. EFFECT OF TERMINATION. 16.6.1. Upon notice of termination of this Agreement for any reason whatsoever, the parties shall execute rapidly and efficiently the procedure for termination of the Manufacturing Outsourcing Services by Contractor and the transfer of production to NICE as set forth hereunder and agreed between the parties, provided that Contractor will not be required to incur additional costs for the purpose of assisting NICE in the case of termination. During the notice period, Contractor will continue performance of the Manufacturing Outsourcing Services regarding all PO's received according to the Forecast and will, simultaneously, assist NICE and cooperate with it in the transfer of the Manufacturing Outsourcing Services to NICE or anyone designated by NICE and NICE will continue in performing all its obligations hereunder. 16.6.2. Upon termination of this Agreement for any reason whatsoever, without derogating from the generality of the aforesaid, NICE shall be entitled to receive from Contractor, at no charge, subject to the confidentiality obligations hereunder and Contractor's Proprietary Information, all information, know-how, samples, documentation and data, in any form or medium, in connection with the Manufacturing Outsourcing Services, whether prepared by NICE or by Contractor, and all NICE Proprietary Information which is in the possession of Contractor or anyone on its behalf, including its Permitted Subcontractors. Upon termination of this Agreement, Contractor shall return any such information to NICE notwithstanding the provisions of Section 10.6. above. 39 16.6.3. Upon termination of this Agreement for any reason whatsoever, all Non Generic Equipment and NICE Returned Components as detailed in Section 3.12. above, will be immediately returned to NICE. 16.6.4. It is clarified that upon termination, for any reason whatsoever, Contractor shall still be obligated to supply warranty services according to this Agreement to all Products supplied, this for the duration of the Warranty Period for each Product and the relevant provisions of this Agreement applying to warranty shall survive termination. 16.7. EFFECT OF TERMINATION. Upon termination of this Agreement, except in the event of termination by NICE due to breach by Contractor, NICE shall pay Contractor as follows: (i) 100% of the contract price for all finished Products in Contractor's possession or which have been delivered/being delivered to NICE, which are subject to a Purchase Order in accordance with the terms of this Agreement; (ii) 104% of the cost in APPENDIX C of all inventory of Permitted Components in Contractor's possession, which are not returnable to the vendor / supplier according to APPENDIX C or usable for other customers (as determined by Contractor in its sole discretion), whether in raw form or work in process; (iii) 104% of the cost in APPENDIX C of all inventory and inventory on order of Permitted Components which is not cancelable according to APPENDIX C; (iv) any vendor cancellation charges incurred with respect to inventory of Permitted Components accepted for cancellation or return by the vendor, and (v) disassembly charges and payments as per Section 3.8 (Cancellation of PO) resulting from the cancellation of PO's due to termination, and (vi) 100% of any other costs and payments payable by NICE hereunder at the time of termination under the specific provisions of this Agreement. Contractor will use reasonable commercial efforts to return unused inventory and to cancel pending orders for such inventory, and to otherwise mitigate the amounts payable by NICE hereunder. 16.8. Upon termination of this Agreement by NICE due to breach by Contractor, NICE shall be obligated to pay Contractor as follows: (i) 100% of the contract price for all finished Products in Contractor's possession for which the Due Date has occurred and which have been supplied to NICE' freight forwarder, which are subject to a Purchase Order in accordance with the terms of this Agreement; (ii) 100% of the cost in APPENDIX C of all inventory of Permitted Components in Contractor's possession, which are not returnable to the vendor / supplier according to APPENDIX C or usable for other customers (as determined by Contractor in its sole discretion); provided however that in the event Contractor fails to supply the Products and/or Permitted Components to NICE, for any reason whatsoever, wi<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>der Section 12.8. This Section shall not be construed or used in the construction of this Agreement as imposing on NICE any liability for which it is not otherwise liable. Further, this Section shall not be construed as derogating from any applicable law which cannot be changed or waived by contract. 16. TERM AND TERMINATION 16.1. TERM AND TERMINATION. The initial term of this Agreement shall commence on the Effective Date and extend for three (3) years thereafter ("INITIAL TERM"), with an automatic renewal for an indefinite period of time ("EXTENDED TERM"), unless terminated by the parties according to Sections 16.2. or 16.3. herein. 16.2. Notwithstanding the aforesaid in Section 16.1. and any possible implication to the contrary herein or as a result of the course of conduct of the parties, NICEshall be entitled, at its sole discretion, to terminate this Agreement, in whole or in part, at any time during the Initial Term or the Extended Term, with or without cause, upon a prior written notice of termination to Contractor of not less than forty-five (45) Days. 38 16.3. Notwithstanding the aforesaid in Section 16.1. and any possible implication to the contrary herein or as a result of the course of conduct of the parties, Contractor shall be entitled, at its sole discretion, to terminate this Agreement only during the Extended Term, with or without cause, upon a prior written notice of termination to NICE of not less than six (6) months. 16.4. Either party shall be entitled to terminate this Agreement, following a fundamental breach of this Agreement by the other party. 16.5. Either party sha<|eot_id|>
3.441485
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er this Agreement. (d) No Conflicting Grant of Rights. Such Party has the right to grant the rights contemplated under this Agreement and has not, and will not during the Term, grant any right to any Third Party that would conflict with the rights granted to the other Party hereunder. (e) Debarment. Such Party is not debarred or disqualified under the United 38 US-DOCS\105216871.19 Source: ZOGENIX, INC., 10-Q, 5/9/2019 States Federal Food, Drug and Cosmetic Act or comparable Applicable Laws in the Territory and it does not, and will not during the Term, employ or use the services of any Person who is debarred or disqualified, in connection with activities relating to the Product. In the event that either Party becomes aware of the debarment or disqualification or threatened debarment or disqualification of any Person providing services to such Party, including the Party itself and its Affiliates or Sub-distributors, that directly or indirectly relate to activities under this Agreement, such Party shall immediately notify the other Party and shall cease employing, contracting with, or retaining any such person to perform any services under this Agreement. (f) Comply with Applicable Laws. In the performance of its obligations hereunder, such Party shall comply and shall cause its and its Affiliates' employees and contractors to comply with all Applicable Laws. (g) Anti-Corruption. Such Party shall not, directly or indirectly through Third Parties, pay, promise or offer to pay, or authorize the payment of, any money or give any promise or offer to give, or authorize the giving of anything of value to a Public Official or Entity or other Person for purpose of obtaining or retaining business for or with, or directing business to, any Person, including, without limitation, Zogenix or Distributor. Without any limitation to the foregoing, such Party has not and shall not directly or indirectly promise, offer or provide any corrupt payment, gratuity, emolument, bribe, kickback, illicit gift or hospitality or other illegal or unethical benefit to a Public Official or Entity or any other Person. (h) Accuracy of<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>be done, or knowingly omit to do any act, the doing, causing or omitting of which endangers, undermines, impairs, destroys or similarly affects, in any material respect, the validity or strength of any of the Zogenix Trademarks (including any registration or pending registration application relating thereto) or the value of the goodwill pertaining to any of the Zogenix Trademarks. 9.8 Product Trademarks. (a) Selection and Ownership of Product Trademarks. All packaging, promotional materials, package inserts, and labeling for the Product in the Field in the Territory shall bear one or more Trademarks that pertain specifically to the Product, including the Trademarks in existence as of the Effective Date as set forth in Exhibit 9.8 (each, a "Product Trademark"). If the Product Trademarks in existence as of the Effective Date are not eligible for trademark protection or for use in connection with the Product in the Field in the Territory or if the Parties agree that alternative or additional Trademarks may be beneficial, Distributor may investigate appropriate Trademarks for the Product in the Territory. If the Parties identify and agree on alternative or additional Trademarks for the Product in the Territory, Zogenix shall use Commercially Reasonable Efforts to register such Trademark(s) for the Product in the Field in the Territory. Zogenix or its Affiliates shall own all right, title, and interest in and to all Product 36 US-DOCS\105216871.19 Source: ZOGENIX, INC., 10-Q, 5/9/2019 Trademarks, all corresponding trademark applications and registrations thereof, and all common law rights thereto. All goodwill of the business associated with or symbolized by the Product Trademarks shall inure to the benefit of Zogenix. Distributor acknowledges Zogenix's exclusive ownership of the Product Trademarks and agrees not to take any action inconsistent with such ownership. (b) Maintenance and Prosecution of Product Trademarks. Zogenix shall, at Zogenix's sole expense, control the registration, prosecution and maintenance of the Product Trademarks in the Territory; provided, that Zogenix shall keep Distributor reasonably informed of Zogenix's actions with respect thereto and shall consider in good faith any reasonable comments made by Distributor with respect thereto. (c) Use of Product Trademarks. Distributor shall promote, market, sell, offer for sale, import, distribute and otherwise commercialize the Product in the Field in the Territory only under the Product Trademarks. Distributor shall provide Zogenix with samples of any advertising and promotional materials that incorporate the Product Trademarks prior to distributing such materials for use. Distributor shall comply with reasonable policies provided by Zogenix from time to time to maintain the goodwill and value of the Product Trademarks. Distributor shall not, and shall cause its Affiliates not to, (i) use, seek to register, or otherwise claim rights in the Territory in any Trademark that is confusingly similar to, misleading or deceptive with respect to, or that materially dilutes, any of the Product Trademarks, or (ii) knowingly do, cause to be done, or knowingly omit to do any act, the doing, causing or omitting of which endangers, undermines, impairs, destroys or similarly affects, in any material respect, the validity or strength of any of the Product Trademarks (including any registration or pending registration application relating thereto) or the value of the goodwill pertaining to any of the Product Trademarks. (d) Enforcement of Product Trademarks. Zogenix shall have the first right, but not the obligation, at Zogenix's expense, to enforce and defend the Product Trademarks in the Territory, including (i) defending against any alleged, threatened or actual claim by a Third Party that the use of the Product Trademarks in the Territory infringes, dilutes or misappropriates any Trademark of that Third Party or constitutes unfair trade practices, or any other claims that may be brought by a Third Party against a Party in connection with the use of or relating to Product Trademarks in the Territory with respect to the Product and (ii) taking such action as Zogenix deems necessary against a Third Party based on any alleged, threatened or actual infringement, dilution or misappropriation of, or unfair trade practices or any other like offense relating to, the Product Trademarks in the Territory by a Third Party. If Zogenix elects not to enforce or defend the Product Trademarks in any such instance, then Zogenix shall promptly so notify Distributor and Distributor shall have the right, but not the obligation, at its expense, to do so. Each Party shall provide to the other Party all reasonable assistance requested by such first Party in connection with any such action, claim or suit under this Section 9.8(d), including allowing such first Party access to such other Party's documents and to such other Party's personnel who may have possession of relevant information. 37 US-DOCS\105216871.19 Source: ZOGENIX, INC., 10-Q, 5/9/2019 (e) Distributor's Housemarks. In addition to the Product Trademarks, Distributor shall have the right to brand the Product in the Territory with those trademarks of Distributor that are associated with Distributor's name or identity and are pre-approved in writing by Zogenix ("Distributor Housemarks"). Distributor shall own all rights in the Distributor Housemarks, and all goodwill in the Distributor Housemarks shall accrue to Distributor. Distributor and its Affiliates and Sub-distributor shall not use any trademarks, other than the Zogenix Trademarks, Product Trademarks and the approved Distributor Housemarks, in connection with the Commercialization of the Product in the Field in the Territory, without the prior written consent of Zogenix. ARTICLE 10. REPRESENTATIONS, WARRANTIES AND COVENANTS; LIMITATION OF LIABILITY 10.1 Mutual Representations, Warranties and Covenants. Each Party hereby represents and warrants to the other Party, as of the Effective Date, as follows: (a) Duly Organized. Such Party is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, is qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or the ownership of its properties requires such qualification and failure to have such would prevent such Party from performing its obligations under this Agreement. (b) Due Authorization; Binding Agreement. The execution, delivery and performance of this Agreement by such Party have been duly authorized by all necessary corporate action. This Agreement is a legal and valid obligation binding on such Party and enforceable in accordance with its terms and does not: (i) to such Party's knowledge and belief, violate any law, rule, regulation, order, writ, judgment, decree, determination or award of any court, governmental body or administrative or other agency having jurisdiction over such Party; nor (ii) conflict with, or constitute a default under, any agreement, instrument or understanding, oral or written, to which such Party is a party or by which it is bound. (c) Consents. Such Party has obtained, or is not required to obtain, the consent, approval, order or authorization of any Third Party, or has completed, or is not required to complete, any registration, qualification, designation, declaration or filing with any Regulatory Authority or governmental authority in connection with the execution and delivery of this Agreement and the performance by such Party of its obligations und<|eot_id|>
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fees and costs incurred as determined by the court in any such action. If Heritage or Premier become engaged in litigation (i) that is in any way connected with this Agreement and (ii) in which either or both of the Parties assert and file one or more claims against the other, the prevailing Party shall be entitled to an award of reasonable attorneys' fees, court costs and out-of-pocket expenses, as determined by the trial court. 20. INDEPENDENT CONTRACTOR The relationship of Heritage to Premier under this Agreement shall be that of an independent contractor and no agency or employment relationship shall be implied by this Agreement. Accordingly, Heritage shall be responsible for payment of all taxes including federal, state and local taxes arising out of Heritage's activities under this Agreement, including, but not limited to, federal and state income tax, social security tax, unemployment insurance tax, and any other taxes or business license fees as required. 21. PRODUCT RECALLS Premier shall have the sole right, exercisable in its discretion, to initiate and direct the content and scope of a recall, market withdrawal, stock recovery, product correction and/or advisory safety communication (any one or more referred to as a "Recall Action") regarding the Products. At Premier's option, Premier can direct Heritage to, and upon such direction Heritage shall, conduct such Recall Action (and Heritage shall ensure Jasper's cooperation). Premier shall determine, in its sole discretion, the manner, text and timing of any publicity to be given such matters upon prior consultation with Heritage. In the event a Recall Action is initiated or directed by Premier, Heritage agrees to fully cooperate and take all such steps as are reasonably requested to implement the Recall Action in a timely and complete manner. Any and all action to be taken in connection with a Recall Action shall be in accordance with FDA policies and other applicable laws and regulations. Heritage shall bear all costs, fees and out-of-pocket expenses associated with any Recall Action which results from (i) Heritage's or Jasper's negligence or willful misconduct, (ii) Heritage's or Jasper's failure to comply with Product Specifications or the Post Holdings Quality Expectations Manual set forth on Schedule A, (iii) any breach of this Agreement by Heritage or (iv) ingredients or packaging materials purchased by Heritage or Jasper. In all other cases, Premier shall bear all costs associated with any Recall Action. [Signature Page Next Following] 12 Source: BELLRING BRANDS, INC., S-1, 9/20/2019 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by a duly authorized officer on the day and year first above written. PREMIER NUTRITION CORPORATION STREMICKS HERITAGE FOODS, LLC BY: /s/ Darcy Davenport BY: /s/ Sam Stremick NAME (print): Darcy Davenport NAME (print): Sam Stremick TITLE: President TITLE: President DATE: 1/8/18 DATE: 1/8/18 13 Source: BELLRING BRANDS, INC., S-1, 9/20/2019 [The schedules described below have been omitted pursuant to Item 601(a)(5) of Registration S-K.] Schedules: A. Products Processing and Analytical Requirements B. HERITAGE Records C. Ingredients & Materials to be supplied by HERITAGE and PREMIER, waste allowance, pricing schedule and all other terms and conditions of sale. D. Premier Nutrition Contacts E. Post Holdings Quality Expectations Manual Source: BELLRING BRANDS, INC., S-1, 9/20/2019<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|> attached hereto and incorporated herein, as amended from time to time, constitute the entire agreement of the Parties relating to the manufacture, packaging, storage, and shipping of the Products, and any prior or contemporaneous agreements or understandings relating thereto are superseded hereby. This Agreement may not be amended except by an instrument in writing duly executed on behalf of the Party against whom such amendment is sought to be enforced. All headings utilized herein are inserted for reference only and shall have no effect on the meaning or construction of any terms of this Agreement. Notwithstanding the above, Premier shall have the right to supplement, modify or amend, from time to time, the Specifications set forth on Schedule A attached hereto; provided, however, that no such modification or amendment shall become part of this Agreement until the same is delivered in writing to Heritage. All such modified products and their formulations are and shall remain the proprietary and sole property of Premier unless otherwise specified. 17. BINDING EFFECT This Agreement, schedules or addenda attached hereto and incorporated herein, shall be binding upon and shall inure to the benefit of the Parties hereto and their respective assignees and successors in interest. This Agreement is not assignable or transferable by either Party, in whole or in part, without the prior written consent of the other Party; provided, however that Premier may assign this Agreement in the event that Premier is sold, merged into or with another entity, or undergoes a "change in control". "Change in control" shall include without limitation (i) the cumulative sale, assignment or other transfer of voting or beneficial equity securities of Premier representing more than fifty percent (50%) of its voting or beneficial equity securities; (ii) Premier being a constituent party to a merger, reorganization or similar transaction; or (iii) a sale, assignment or other transfer of substantially all of Premier s assets or business. 18. NON-EXCLUSIVITY AND NON-COMPETITION (a) Nothing herein shall be construed to create a requirements contract or to require Premier to purchase any Products, other than the Minimum Annual Order Volume as specified in 2 (c). Premier reserves the right to buy Products or similar product from other co-packers, manufacturers, or third-parties. 11 Source: BELLRING BRANDS, INC., S-1, 9/20/2019 (b) [***] 19. ATTORNEY FEES Should either Heritage or Premier be required to institute legal action to enforce any of its rights set forth in this Agreement, then the prevailing Party shall be entitled to reimbursement for all reasonable attorneys'<|eot_id|>
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Year. (b) As additional remuneration hereunder, Company agrees to pay Licensor an Additional License Fee of One Million Five Hundred Thousand Dollars ($1,500,000) to be paid -2- in quarterly installments on or before January 1, April 1, July 1 and October 1 of the first Contract Year. (c) Licensor agrees that Duval must achieve and maintain Exempt Status on the PGA Tour throughout each Contract Year and must participate as a player in a minimum of fifteen (15) official PGA Tour events each Contract Year (Minimum Annual Performance Requirements). Licensor also agrees that the Additional License Fee set forth in Section 4 (b), is an advance payment earned at a rate of $375,000 on each annual anniversary date beginning December 31, 2000. In the event Duval does not meet the Minimum Annual Performance Requirements for a Contract Year, $375,000 of the Additional License Fee will be deemed to be unearned. Any unearned Additional License Fee is fully &bbsp; refundable and due Company no later then January 31st of the following year. In the event the Company terminates the Agreement in accordance with Section 16, any unearned Additional License Fee will be fully refundable and due the Company as set forth in Section 16. 5. ADDITIONAL REMUNERATION. It is agreed that should Duval achieve any of the accomplishments set forth in the following schedule during the Contract Period, then Company will pay Licensor the additional remuneration set forth below for each such accomplishment due to the increased value in the Duval Identification. Accomplishment Additional Remuneration -------------- ----------------------- PGA Tour Win $25,000 PGA Tour 2-5 place finish $10,000 World Championship Event Win $40,000 World Championship Event 2-5 place finish $15,000 Major Win (Masters, U.S. Open, British Open, PGA Championship) $100,000 Major 2-5 place finish $25,000 Named to Ryder Cup or President's Cup Team $15,000 Player of the Year $40,000 All additional remuneration will be due within thirty (30) days of each such accomplishment. Company agrees that all additional remuneration earned by Licensor during each Contract Year will be added to the Annual Fee for each remaining Contract Year during the Contract Period. 6. PAYMENTS. Licensor may elect to have payments made by check, wire transfer, or bank transfer. Unless such election has been made in writing, all payments shall be made by check drawn to the order of "David Duval Enterprises, Inc." and delivered to c/o IMG Center, -3- 1360 East 9th Street, Cleveland, Ohio 44114, Attention: Treasurer. Past due payments hereunder shall bear interest at the rate of (a) one and one-half percent (1-1/2%) per month, or (b) the maximum interest rate permissible under law, whichever is less. All amounts herein are in United States Dollars. 7. MARKETING COMMITMENT. Company agrees that it will aggressively promote Duval and his association with Company and Company Products each Contract Year during the Contract Period. 8. SERVICES OF DUVAL. (a) If Company desires to utilize the services of Duval as a model in connection with Company advertising to promote its products or for personal appearances to promote Company, Licensor agrees, at the reques<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>ENDORSEMENT AGREEMENT THIS AGREEMENT, made and entered into as of this 1st day of January, 2000, by and between MOSSIMO, INC., 2450 White Road, 2nd Floor, Irvine, California 92614 ("Company"), and DAVID DUVAL ENTERPRISES, INC. c/o International Management, Inc., IMG Center, 1360 East 9th Street, Suite 100, Cleveland, Ohio 44114 ("Licensor"): WITNESSETH: WHEREAS, David Duval ("Duval") is recognized as a highly skilled professional golfer. WHEREAS, Company desires to obtain the rights to use the name, fame, image and athletic renown of Duval in connection with the advertisement and promotion of its products as provided herein; WHEREAS, Duval has licensed all such rights to Licensor, along with the right to sublicense such rights to third parties. NOW, THEREFORE, the parties agree as follows: 1. DEFINITIONS. As used herein, the following terms shall be defined as set forth below: (a) "Contract Period" shall mean that period of time commencing on January 1, 2000 and concluding December 31, 2003, unless terminated sooner as provided herein. (b) "Contract Year" shall mean the consecutive 12-month period beginning on any January 1st during the Contract Period. (c) "Products" shall mean casual apparel consisting of men's pants, shirts, sweaters, windshirts and raingear. (d) "Duval Identification" means the right to use, subject to the provisions hereof, Duval's name, fame, nickname, initials, autograph, voice, video or film portrayals, facsimile signature, photograph, likeness and image or facsimile image, and any other means of endorsement by Duval used in connection with the advertisement and promotion of Company's Products. (e) "Contract Territory" shall mean worldwide. (f) "Outerwear" shall mean the golf shirts, sweaters, windshirts and raingear worn by Duval when he plays professional golf. -1- (g) "Exempt Status" shall mean Duval has earned full playing privileges on the PGA Tour each year of the contract term. 2. GRANT OF RIGHTS. In consideration of the remuneration to be paid to Licensor pursuant hereto, Licensor grants to Company the right and license during the Contract Period to use the Duval Identification solely in connection with the advertisement and promotion of Company's Products within the Contract Territory as set forth herein. Licensor agrees not to grant the right to use the Duval Identification to anyone other than Company in connection with the advertisement and promotion of Products. It is understood that Company may not use the Duval Identification in connection with any items for sale or resale, other than Company Products as specified herein. 3. PRIOR APPROVAL. Company agrees that no use of the Duval Identification nor any item used in connection with the Duval Identification will be made hereunder unless and until the same has been approved by Licensor. Licensor agrees that any material, advertising or otherwise, submitted for approval as provided&sbsp;herein may be deemed by Company to have been approved hereunder if the same is not disapproved in writing within ten (10) business days after receipt thereof. Licensor agrees that any material submitted hereunder will not be unreasonably disapproved and, if it is disapproved, that Company will be advised of the specific grounds therefor. If Company desires immediate approval of advertising material hereunder, Company shall have the right to directly contact Licensor's authorized agent to obtain such approval. Company agrees to protect, indemnify and save harmless Licensor, Duval and their authorized agent, or any of them, from and against any and all expenses, damages, claims, suits, actions, judgments and costs whatsoever, arising out of, or in any way connected with, any advertising material furnished by, or on behalf of, Company. 4. REMUNERATION. (a) In consideration of the rights herein granted hereunder, Company shall pay to Licensor the annual fee set forth in the schedule below (the "Annual Fee"). Year Annual Fee ---- ---------- 2000 $850,000 2001 $850,000 plus amounts paid under Section 5 in 2000 2002 $850,000 plus amounts paid under Section 5 in 2000 and 2001 2003 $850,000 plus amounts paid under Section 5 in 2000-2002 One-half of the Annual Fee will be due on or before January 1 and July 1 of each Contract <|eot_id|>
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the vehicle, and the performance of the vehicle. After the Useful Life, you must remove all Proprietary Marks and any other indicia associating the Delivery Vehicle with the System, and immediately purchase or lease a new Delivery Vehicle. 6.5.2. We have the right to specify the makes and models of Delivery Vehicles approved for use by our franchisees, and anticipate that we will make changes over time to reflect and take advantage of advances in technology and/or alternative energy powered vehicles. 6.6. Alcohol Permits. Before you begin operating the Franchised Business you must obtain, and at all times thereafter you must maintain, all licenses and permits required to sell, dispense, and store beer and wine beverages and be prepared to offer and sell such beer and wine products to customers at the Premises as we designate as mandatory product offerings, unless you obtain from us a written waiver of this requirement. You must comply with all laws and regulations relating to the selling, dispensing, and storing of alcoholic beverages. You must also comply with the standards, specifications, and terms that we may establish regarding the offer, sale, and presentation of alcoholic beverages, as require or approved products. You must obtain and maintain appropriate insurance coverage for you and for our benefit, including any minimum coverages that we may establish. 6.7. Image Standards. You must keep the Premises, vehicles, equipment, and uniforms used in the Franchised Business and/or by your employees in the highest degree of cleanliness, orderliness, appearance, sanitation, and repair in accordance with our standards and specifications, including but not limited to those set out in our Manuals. 6.8. Employees. Your employees must wear uniforms, or comply with such other dress code as we may require, and otherwise identify themselves with the Proprietary Marks at all times in the manner we specify while on a job for the Franchised Business. 6.9. Employment Responsibilities. You have sole responsibility for all employment decisions and functions related to your Franchised Business, including hiring, firing, compensation, benefits, work hours, work rules, record-keeping, supervision, and discipline of employees. You must take such steps as are necessary to ensure that your employees preserve good customer relations; render competent, prompt, courteous, and knowledgeable service; and meet any minimum standards that we may establish from time to time in the Manual, which may include standards as to the minimum number of employees, which we may determine, necessary to meet the anticipated volume of business and to achieve the goals of the System. 6.10. Customer Service Program. You acknowledge that providing superior customer service is a vital component of the System. You must participate in customer service programs, which we have the right to specify from time to time in the Manual. Such programs may include the use of independent evaluation service to conduct "mystery customer" quality control, customer satisfaction surveys, or any other quality control or evaluation programs. If you receive an unsatisfactory or failing report in connection with any such program, you must immediately implement any remedial actions we require and pay us all expenses we incurred to have the evaluation service evaluate the Franchised Business, and all expenses we may have incurred to inspect the Franchised Business thereafter. 6.11. Customer List. You must create and maintain, in such manner as we may from time to time require, a current customer list (the "Customer List") containing as to each of your customers, such customer's name, e-mail address, location address, telephone number and zip code (9 digits). You must provide a copy of such list to us on a quarterly basis (or at such other intervals as we may prescribe). The Customer List is, and remains, our exclusive property, you hereby assign to us all rights you now have or hereafter may acquire in the Customer List. After the expiration or termination of this Agreement, you may not retain, use or disclose the Customer List, or any of the information contained therein, without our written authorization. Page 13 of 39 Source: PF HOSPITALITY GROUP INC., 10-12G, 9/23/2015 6.12. Major Accounts 6.12.1. You acknowledge that our negotiation of Major Accounts, including rates and services to be performed, enhances the potential value of the System and inures to your benefit as well as to our benefit and that of other Restaurant franchisees. As noted in Section 1.3 [Our Limitations and Our Reserved Rights] above, we reserve the right to provide products and services to all Major Accounts. We may offer you the right to provide products and services to a Major Account within your Delivery/Catering and Advertising Area. If you accept the obligation to provide products and services to a Major Account, you must service such Major Account on our behalf, in accordance with the pricing and other terms that we negotiate with the Major Account customer. You may not enter into any relationship with a Major Account customer that we deem to conflict with the customer's Major Account arrangement with us. We will have the right to handle all b<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>ns that we establish from time to time; and/or (b) be purchased only from suppliers that we have expressly approved; and/or (c) be purchased only from a single source (which may include us or our affiliates or a buying cooperative that we organize). To the extent that we establish specifications, require approval of suppliers, or designate specific suppliers for particular items, we will publish our requirements in the Manual. 6.4.2. If you would like to use or offer food items (other than the Secret Recipe Products), equipment, supplies, materials, and other products and services that we have not approved, or purchase from a vendor, supplier, distributor, or other source (together, "supplier(s)") that we have not approved, then you must submit to us a written request for approval. We have the ongoing right to inspect any proposed supplier's facilities and to test samples of the proposed products or services. You agree to pay us an amount not to exceed the reasonable cost of the inspection and our actual cost of testing the proposed product or service, including personnel and travel costs, whether or not we ultimately approve the supplier. We have the right to grant, deny, or revoke approval of products, services, and suppliers. We will notify you in writing of our decision as soon as practicable following our evaluation. We reserve the right to reinspect the facilities and products of any approved supplier and to revoke approval if we find that the supplier fails to meet any of our then-current criteria. If you receive a notice of revocation of approval, you agree to immediately stop buying products or services from the disapproved supplier and, in the case of revocation based on failure of products to meet our standards, you agree to dispose of your remaining inventory of the disapproved supplier's products as we direct. 6.4.3. If you wish to test market an item that we have not approved, then, so long as we have given you our prior written approval, you may do so for so long, and on such terms, that we mutually agree upon (a "Test"), and the item so tested, and all associated formulae, plans, and materials, will become our property. If, following the Test, we determine that we will approve the tested item, then for so long as we deem that item to be an "approved item" under this Agreement, you will have the right to use that item under the terms of this Agreement; and we will have the right to use and market that item as we see fit, including but not limited to use in our own Restaurants as well as that of other licensees and franchisees, without compensation to you. You agree to sign such documents (and require your employees and any independent contractors that you have engaged to sign such documents) as we may require in order to implement the provisions of this Section 6.4.3 [Sourcing of Other Products, Equipment and Supplies]. 6.4.4. We and our affiliates may receive payments or other compensation from suppliers on account of such suppliers' dealings with you and other franchisees; and, we may use all amounts so received for any purpose we and our affiliates deem appropriate. 6.5. Delivery Vehicles. If you wish to use a vehicle to provide delivery services (a "Delivery Vehicle") as part of your Franchised Business, you must comply with the specifications and standards that we may periodically prescribe in the Manuals for Delivery Vehicles. Our specifications and standards may include, among other things: designating Delivery Vehicles specific make and model; limitations on the Useful Life for a Delivery Vehicle and standards for maintenance or repair services. Page 12 of 39 Source: PF HOSPITALITY GROUP INC., 10-12G, 9/23/2015 6.5.1. The term "Useful Life" means the period of time after which you must stop using the Delivery Vehicle for the Franchised Business. We have the right to determine the Useful Life of any Delivery Vehicle, which may include reasonable standards as to how many model years old the vehicle may be, the appearance of <|eot_id|>
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k Vehicle Gel filled into unit packages and sterilized, including labeling and packaging, as further described in the applicable Specifications. 2 9012190/26 1.20 "First Commercial Sale" means, with respect to any Licensed Product and with respect to any country of the Territory, the first sale of such Licensed Product by Vericel or an Affiliate or Sublicensee of Vericel to a Third Party in such country after such Licensed Product has been granted Regulatory Approval by the appropriate Regulatory Authority(ies) for such country. 1.21 "Force Majeure Event" has the meaning set forth in Section 10.1. 1.22 "Initial Term" has the meaning set forth in Section 8.1. 1.23 "Intermediate Drug Product" means the formulated Intermediate Drug Substance as a bulk lyophilized powder, prior to filling and finishing, for use in the Product, as further described in the applicable Specifications. 1.24 "Intermediate Drug Substance" means formulated mixture of proteolytic enzymes enriched in bromelain in solution manufactured for use in manufacturing the Intermediate Drug Product. 1.25 "Key Material" means, with respect to a given Product, those key Materials for the Manufacture of such Product as designated by the Parties. Schedule 1.26 will include a list of the then-current Key Materials, as designated by the Parties, which will be updated by the Parties from time to time during the Term to reflect additions and deletions thereof. 1.26 "Key Materials Suppliers" means, with respect to a given Product, the entities that MediWound, its Affiliate or its Third Party manufacturer has engaged (whether as of the Effective Date or from time to time during the Term) to manufacture, supply, furnish or provide the Key Materials for such Product. Schedule 1.26 will include a list of the then-current Key Materials Suppliers for each Product, which will be updated by MediWound from time to time during the Term to reflect additions and deletions thereof. 1.27 "Latent Defect" means, with respect to a Product supplied by MediWound to Vericel hereunder, a defect existing at the time of delivery of such Product to Vericel that causes such Product to fail to conform to the corresponding Product Warranty for such Product, which defect is not reasonably obvious to Vericel upon inspection of such Product during the [***] period pursuant to Section 2.12 following such delivery but is discovered at a later time. 1.28 "Liability" has the meaning set forth in Section 7.1. 1.29 "License Agreement" has the meaning set forth in the recitals of this Agreement. 1.30 "Manufacture" or "Manufacturing" means to make, produce, manufacture, process, fill, finish, package, label, perform quality assurance testing, release a compound or product or any component thereof. When used as a noun, "Manufacture" or "Manufacturing" means any and all activities involved in Manufacturing a compound or product or any component thereof. 3 9012190/26 1.31 "Materials" means, with respect to a given Product, all raw materials, Bulk Vehicle Gel (where MediWound is supplying a Product other than Bulk Vehicle Gel), Intermediate Drug Product (where MediWound is supplying a Product other than Intermediate Drug Product), supplies, components, excipients, and intermediates, labels and packaging materials necessary to Manufacture and ship such Product in accordance with the applicable Specifications. 1.32 "Maximum Capacity" has the meaning set forth in Section 2.6. 1.33 "MediWound" has the meaning set forth in the Preamble. 1.34 "MediWound Indemnified Party" has the meaning set forth in Section 7.2. 1.35 "Minimum Shelf Life" has the meaning set forth in Section 2.10. 1.36 "Non-Conforming Product" has the meaning set forth in Section 2.12. 1.37 "Parties" has the meaning set forth in the Preamble. 1.38 "Product" means, as applicable, the (a) Intermediate Drug Product, (b) Bulk Vehicle Gel and (c) Finished Product. 1.39 "Product Warranty" has the meaning set forth in Section 6.3. 1.40 "Purchase Order" shall mean a firm, written order for purchase of one or more Products submitted by Vericel to MediWound that complies with the terms and conditions of this Agreement. 1.41 "Quality Agreement" has the meaning set forth in Section 3.8. 1.42 "Recall" means a recall, withdrawal or field correction of a Product. 1.43 "Regulatory Change" has the meaning set forth in Section 4.4. 1.44 "Regulatory Standards" means all applicable Laws within the Territory applicable to the Manufacturing and shipment of the Product or any aspect thereof and the obligations of MediWound hereunder, including, without limitation, (a) the FD&C Act (or similar requirements of the countries for which the Product will be distributed), (b) cGMPs, and (c) the rules and regulations promulgated under or by a Regulatory Authority or any successor agency or other comparable agency theret<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>Exhibit 10.10 CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND REPLACED WITH "[***]". SUCH IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO THE COMPANY IF DISCLOSED. SUPPLY AGREEMENT by and between MEDIWOUND LTD. and VERICEL CORPORATION May 6, 2019 TABLE OF CONTENTS Page ARTICLE 1 DEFINITIONS 1 ARTICLE 2 SUPPLY OF PRODUCTS 5 2.1 Scope of Agreement 5 2.2 Exclusive Supply 6 2.3 Materials 6 2.4 Labeling 6 2.5 Subcontracting 7 2.6 Facilities 8 2.7 Establishment of Second Source 9 2.8 Forecasting and Ordering 9 2.9 Delivery 11 2.10 Dating 12 2.11 Safety Stock 12 2.12 Non-Conforming Product 12 2.13 Shortages 13 2.14 Supply Failures 13 ARTICLE 3 COMPLIANCE, QUALITY AND ENVIRONMENTAL 14 3.1 Certificates of Analysis; Release 14 3.2 Records 14 3.3 Regulatory Compliance 14 3.4 Audit 15 3.5 Results of Audits and /or Regulatory Inspection 16 3.6 Regulatory Information 16 3.7 Recall 16 3.8 Quality Agreement 16 ARTICLE 4 CHANGES 17 4.1 Changes 17 4.2 Changes to Facility 17 4.3 Discretionary Manufacturing Changes 17 4.4 Regulatory Changes 18 4.5 Ongoing Regulatory Assistance 18 ARTICLE 5 PRICE AND PAYMENT TERMS 19 5.1 Supply Price 19 5.2 Price Mechanics 19 5.3 Cost Savings 19 5.4 Payments 20 ii 9012190/26 5.5 Late Payments 20 5.6 Taxes 20 ARTICLE 6 REPRESENTATIONS, WARRANTIES AND COVENANTS 21 6.1 Mutual Representations and Warranties 21 6.2 Compliance with Law 21 6.3 Product Warranty 21 6.4 No Liens 21 6.5 Debarment 21 ARTICLE 7 INDEMNITY, INSURANCE 22 7.1 Indemnification by MediWound 22 7.2 Indemnification by Vericel 22 7.3 No Right of Indemnification under License Agreement 23 7.4 Procedure 23 7.5 Disclaimer 24 7.6 LIMITATION OF LIABILITY 24 7.7 Insurance 25 ARTICLE 8 TERM AND TERMINATION 25 8.1 Term 25 8.2 Automatic Termination 25 8.3 Termination for Breach 25 8.4 Termination by Vericel 25 8.5 Termination by MediWound 26 8.6 Effects of Termination 26 8.7 Survival 26 ARTICLE 9 INTELLECTUAL PROPERTY RIGHTS 27 9.1 Manufacturing License Grant 27 9.2 Trademarks License Grant. 27 9.3 Ownership 27 ARTICLE 10 FORCE MAJEURE 27 10.1 Excusing Performance 27 10.2 Notice of Force Majeure Event 27 10.3 Resumption; Termination 27 ARTICLE 11 MISCELLANEOUS 28 11.1 Assignment 28 11.2 Further Actions 28 11.3 Notices 28 11.4 Amendment 29 11.5 Waiver 29 iii 9012190/26 11.6 Severability 29 11.7 Descriptive Headings 29 11.8 Interpretation 29 11.9 Governing Law 30 11.10 Consent to Jurisdiction 30 11.11 Entire Agreement 31 11.12 Representation by Legal Counsel 31 11.13 Counterparts 31 11.14 No Third Party Rights or Obligations 31 11.15 Confidentiality 31 11.16 Bankruptcy 32 iv 9012190/26 SUPPLY AGREEMENT THIS SUPPLY AGREEMENT (the "Agreement") is entered into as of May 6, 2019 (the "Effective Date"), by and between Vericel Corporation, a corporation organized and existing under the laws of Michigan and having a principal place of business at 64 Sidney Street, Cambridge, MA 02139 ("Vericel") and MediWound Ltd., a corporation organized and existing under the laws of Israel and having a principal place of business at 42 Hayarkon Street, Yavne, Israel 8122745 ("MediWound"). Vericel and MediWound may each be referred to herein individually as a "Party" and collectively as the "Parties." RECITALS WHEREAS, Vericel and MediWound are parties to that certain License Agreement of even date herewith (the "License Agreement"), pursuant to which Vericel acquired an exclusive license to certain rights from MediWound; and WHEREAS, in connection with the License Agreement, the Parties contemplate that during the Term, MediWound will provide certain manufacturing and other related services to Vericel in accordance with the terms and conditions set forth herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: Article 1 DEFINITIONS The following terms have the meanings set forth below. Capitalized terms which are used but not defined herein have the meanings ascribed to such terms in the License Agreement. 1.1 "Additional Service" shall mean any service in addition to the Manufacture of a Product, as such services are identified on Exhibit B attached hereto, or such other service as may be requested by Vericel and agreed to by MediWound from time to time. 1.2 "Additional Service Fee" shall mean the fee, cost and/or expense to be paid by Vericel to MediWound for the performance of Additional Services, as such fee, cost and/or expense is agreed to by Vericel and MediWound in writing in respect of such Additional Services (plus VAT or similar taxes, if applicable). 1.3 "Agreement" has the meaning set forth in the Preamble. 1.4 "Batch" shall mean one (1) production lot of a Product. 1.5 "Binding Forecast" has the meaning set forth in Section 2.8(a). 1.6 "Binding Orders" has the meaning set forth in Section 2.8(b). 1.7 "BLA" means (a) a Biologics License Application as defined in the FD&C Act and the regulations promulgated thereunder, or (b) any equivalent or comparable application, registration or certification in any other country or region in the Territory. 1 9012190/26 1.8 "Bulk Vehicle Gel" means the formulated NexoBrid product gel in bulk form, prior to filling and finishing, as further described in the applicable Specifications. 1.9 "Business Day" means a day other than a Friday, Saturday, Sunday or bank or other public holiday in New York, New York or Yavne, Israel. 1.10 "cGMP" means the then-current good manufacturing practices for pharmaceuticals, as set forth in the United States Federal Food, Drug, and Cosmetic Act, as amended, and applicable regulations promulgated thereunder, as amended from time to time, and such equivalent or similar standards for good manufacturing practice as are required by other Governmental Authorities in countries in which Products are intended to be manufactured or sold. 1.11 "Change Notification Period" has the meaning set forth in Section 4.1. 1.12 "Confidential Information" has the meaning set forth in the License Agreement insofar as such information is disclosed pursuant to this Agreement. The terms of this Agreement are the Confidential Information of both Parties, subject to Section 11.15. 1.13 "Conforming Product" means, with respect to the applicable Product, that, as of the date of delivery to Vericel or its designated Affiliate or contractor in accordance with Section 2.9(c) hereof, such Product (a) meets, and was Manufactured in accordance with, the applicable Specifications, Regulatory Standards (including cGMP where applicable) and the requirements set forth in the Quality Agreement, (b) is free from defects in materials and workmanship, (c) is not adulterated or misbranded within the meaning of the FD&C Act (or similar requirements of the countries for which the Product will be distributed), and (d) is not an article which may not, under the provisions of the FD&C Act, be introduced into interstate commerce. 1.14 "Cost Savings Change" has the meaning set forth in Section 5.3. 1.15 "Discretionary Manufacturing Changes" has the meaning set forth in Section 4.1. 1.16 "Effective Date" has the meaning set forth in the Preamble. 1.17 "Excess Amount" has the meaning set forth in Section 2.8(b). 1.18 "Facility" means MediWound facility located at 42 Hayarkon Street, Yavne, Israel 8122745 and any other facility approved by Vericel in accordance with Section 2.6. 1.19 "Finished Product" means finished NexoBrid product, comprising the Intermediate Drug Product filled into unit packages and Bul<|eot_id|>
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by law, rule, or regulation or by this Agreement to be paid or filed by Vendor. (c) Upon AT&T's request, the Parties shall consult with respect to the basis and rates upon which Vendor shall pay any taxes or fees for which AT&T is obligated to reimburse Vendor under this Agreement. If AT&T determines that, in good faith and pursuant to applicable Law, any such taxes or fees are not payable or should be paid on a basis less than the full price or at rates less than the full tax rate, AT&T shall notify Vendor in writing of such determinations, Vendor shall make payment in accordance with such determinations, and AT&T shall be responsible for such determinations. If collection is sought by the taxing authority for a greater amount of taxes than that so determined by AT<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>equested by AT&T related to the inquiry. (f) Except as provided in Subsection (d), all reasonable out-of-pocket costs and expenses incurred by AT&T in connection with an AT&T Audit shall be paid by AT&T. Vendor shall be solely responsible for all costs and expenses incurred by Vendor in connection with its obligations under this Section. In the event that either Party requires that an audit be performed by an independent auditor, unless otherwise specified herein, the Party requesting such independent auditor will be responsible for the costs and expenses associated with the independent auditor. (g) With respect to AT&T requests for audits or inspections of Vendor's Subcontractors, the following applies: (i) If Vendor's agreement with its applicable Subcontractor permits an AT&T Audit, AT&T shall be permitted to conduct such audit directly or through a third party representative. Vendor shall work with AT&T in facilitating the Subcontractor's cooperation for an expeditious and thorough audit or inspection. (ii) If Vendor's contract with its applicable Subcontractor precludes AT&T from directly conducting an audit or inspection, Vendor shall use reasonable best efforts to enable AT&T to perform an audit of the Subcontractor with Vendor coordinating the audit process. Failing those efforts, Vendor shall, upon AT&T's request and at AT&T's expense, conduct the audit or inspection on behalf of AT&T, subject to terms agreed to by Vendor and AT&T for the Subcontractor audit, such as areas to be audited, applicable fees, and the timeframe for reporting audit results to AT&T. If AT&T's request for a Vendor audit or inspection arises from, in AT&T's good faith opinion, materially or consistently deficient Service provided by the Subcontractor under AT&T's account, and the audit in both Parties' opinions confirms such deficiencies, Vendor shall not charge AT&T a fee for the Vendor's audit of its Subcontractor. (iii) If Vendor's contract with its applicable Subcontractor does not allow Vendor access to the facilities and systems of Subcontractor required to conduct the audit described in Subsection (b) above, then Vendor shall provide a list of such Subcontractors and the services being provided by such Subcontractor to AT&T for its review. To the extent AT&T deems it reasonably necessary to require such access, then Vendor will renegotiate its contract with the applicable Subcontractor in order to obtain the audit rights described in Subsection (b) above. Proprietary and Confidential This Agreement and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Vendor except under written agreement by the contracting parties. 36 Source: ATN INTERNATIONAL, INC., 10-Q, 11/8/2019 3.32 Restricted Entities. Vendor may not deliver or obtain any Material or Deliverables from or use any Restricted Entities to provide any Services under this Agreement, without prior written consent from AT&T. Vendor may not use, in connection with any Deliverable, Material or Service provided hereunder, any element, equipment, location, instrumentality or the like where a Restricted Entity has a security interest in that element, equipment, location, instrumentality or the like. Vendor may not obtain financing from any Restricted Entity or use any Cell Sites or Material owned, leased from, operated or financed by any Restricted Entity. 3.33 Severability. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the Parties agree that the remaining provisions of this Agreement shall remain in full force if both the economic and legal substance of the transactions contemplated by this Agreement are not affected in any manner that is materially adverse to either Party by severing the provision determined to be invalid, illegal, or unenforceable. 3.34 Supplier Citizenship and Sustainability. Vendor shall conduct business with an abiding respect for corporate citizenship, sustainability, and human rights ("Citizenship and Sustainability"). Upon AT&T's request, which request may only be made once per calendar year, Vendor shall provide to AT&T reasonable information, reports, or survey responses to demonstrate Vendor's operation of its business in the context of Citizenship and Sustainability. 3.35 Survival of Obligations. Obligations and rights under this Agreement that by their nature would reasonably continue beyond the termination or expiration of this Agreement (including those in the Sections entitled "Compliance with Laws," "Construction and Interpretation," "Cumulative Remedies," "Entire Agreement," "Governing Law," "Information," "Indemnity," "Infringement," "Insurance," "Limitation of Damages," "Order of Precedence," "Ownership of Paid-For Development, Use and Reservation of Rights," "Publicity," "Severability," "AT&T Supplier Information Security Requirements (SISR)," "Warranty," "Customer Information," "Dispute Resolution" and the representations, warranties, indemnities and Termination Remedies) will survive the termination or expiration of this Agreement. 3.36 Taxes (a) Vendor shall invoice AT&T the amount of any federal excise, state, and local transaction taxes imposed upon the sale of Material, Delivery of Deliverables, and provision of Services under this Agreement. All such taxes must be stated as separate items on the applicable Material, Deliverable, or Services invoice listing the taxing jurisdiction imposing the tax. Installation, labor and other non-taxable charges must be separately stated. AT&T shall pay all applicable taxes to Vendor that are stated on and at the time the Material, Deliverables, or Services invoice is submitted by Vendor. Vendor shall remit taxes to the appropriate taxing authorities. Vendor shall honor tax exemption certificates, and other appropriate documents, which AT&T provides to Vendor, pursuant to relevant tax provisions of the taxing jurisdiction providing the exemption. Proprietary and Confidential This Agreement and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Vendor except under written agreement by the contracting parties. 37 Source: ATN INTERNATIONAL, INC., 10-Q, 11/8/2019 (b) Vendor will pay any penalty, interest, additional tax, or other charge that may be levied or assessed as a result of the delay or failure of Vendor, for any reason other than AT&T's failure to reimburse Vendor in a timely manner for such amounts, to pay any tax or file any return or information required <|eot_id|>
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signatures on all such documentation are genuine. Such Secretary's certificate shall contain a certificate of an officer of Client, other than the officer executing the Secretary's certificate, stating that the person executing the Secretary's certificate was validly elected to, and is the Secretary or an Assistant Secretary of Client and that his signature on the certificate is genuine. 6. A shareholder list, preferably in machine readable format, certified as true and complete by the person preparing the list, for the issued and outstanding Shares, setting forth as to each holder, his/her name and address, tax identification number certified by the shareholder pursuant to requirements of the Internal Revenue Code and applicable regulations, the number of Shares held, the Share certificate numbers and the existence of any stop orders or other transfer restrictions. 7. Opinion of counsel for Client, addressed to Agent, to the effect that: a) the Shares issued and outstanding on the date hereof have been duly authorized, validly issued and are fully paid and are non-assessable; b) the Shares issued and outstanding on the date hereof have been duly registered under the Securities Act of 1933, as amended, and such registration has become effective, or are exempt from such registration; and have been duly registered under the Securities Exchange Act of 1934, as amended, or are exempt from such registration; c) the use of facsimile signatures by Agent in connection with the countersigning and registering of Share certificates of Client has been duly authorized by Client and is valid and effective; and d) the execution and delivery of this Agreement do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the charter or the by-laws of Client, any law or regulation, any order or decree of any court or public authority having jurisdiction, or any mortgage, indenture, contract, agreement or undertaking to which Client is a party or by which it is bound and this Agreement is enforceable C-2 against Client in accordance with it terms, except as limited by bankruptcy, insolvency, moratorium, reorganization and other similar laws affecting the enforcement of creditors' rights generally. 8. A completed Internal Revenue Service Form 2678. 9. A completed Form W-8 or W-9, as applicable. Client further agrees to deliver an opinion of counsel as provided in this Exhibit C, Section 7(a) and (b) upon any future original issuance of Shares for which Agent will act as transfer agent hereunder. C-3 NOTIFICATION OF CHANGES Client shall promptly notify Agent of the following: 1. Any change in the name of Client, amendment of its certificate of incorporation or its by-laws; 2. Any change in the title of a Class of Stock from that set forth in the first column of Exhibit A; 3. Any change in the Number of Authorized Shares from that set forth in the second column of Exhibit A; 4. Any change in existing agreements or any entry into new agreements changing the Number of Authorized Shares Reserved for Future Issuance Under Existing Agreements from that listed in the fourth column of Exhibit A hereto; 5. Any change in the number of outstanding Shares subject to stop orders or other transfer limitations; 6. The listing or delisting of any Shares on any stock exchange; 7. The appointment after the date hereof of any co-Transfer Agent, Registrar (other than Agent) or any co-Registrar for any of the Shares; 8. The merger of Client into, or the consolidation of Client with, or the sale or other transfer of the assets of Client substantially as an entirety to, another person; or the merger or consolidation of another person into or with Client; and 9. Any other change in the affairs of Client of which Agent must have knowledge to perform properly its duties under this Agreement. C-4<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>he officer(s) of Client, who executed this Agreement as well as any certificates or papers delivered to Agent pursuant to this Agreement (including without limitation any Share certificates, as such certificates may be amended from time to time), were validly elected or appointed to, and are the incumbents of, the offices they purported to hold at the time of such execution and delivery, are authorized to execute this Agreement as well as all other certificates or papers delivered hereunder, and that their <|eot_id|>
5.267297
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include Program Samples. "FCE" is defined in the preamble. "FCE Background Information" means Background Information that: (a) was developed or acquired by FCE independently of a Project, and (b) is provided by FCE for use in a Project under this Agreement. FCE Background Information does not include Program Information. "FCE Background Sample" means a non-commercial sample of material, component, device, or the like that: (a) was developed or acquired by FCE independently of a Project, and (b) is provided by FCE for use in a Project under this Agreement. FCE Background Samples does not include Program Samples. "FTE" means a full-time employee of FCE or an equivalent thereof, dedicated to the conduct of the Program based on a total of one thousand eight hundred and fifty-six (1,856) hours per year of direct project work per year. FTEs will include engineers, scientists, and any other functions mutually agreed to by the Steering Committee. Non-devoted personnel (e.g., FCE's Board of Directors, management, secretarial, administrative, human resources, finance, purchasing, shipping and receiving, information technology specialists, lawyers, cleaning and food service personnel) are not FTEs. Individuals may be counted as fractional FTEs by using the individual's total hours of work for FCE on the Program (as opposed to total hours of work) as the numerator and 1,856 as the denominator. For clarity, the phrase "direct project work" means the applicable person is engaged in activities contemplated to be performed by Project Description and excludes time incurred by a person on indirect work-related functions, such as time spent on management, training, general meetings, workplace events, completing time cards, and similar administrative functions, except for attendance at Steering Committee meetings. Page 26 of 31 Source: FUELCELL ENERGY INC, 8-K, 11/6/2019 "FTE Costs" means the product of the FTE Rate and the hours worked of the total number of FTEs. "FTE Rate" means the hourly amount agreed to by the Parties per FTE. As of the Effective Date, the FTE Rate for scientists and engineers is three-hundred and twenty-seven United States dollars ($327.00 USD) and the FTE Rate for all other FTEs is one- hundred and ninety-four United States dollars ($194.00 USD). Increases in the FTE Rate must be approved by the Steering Committee. "Generation 1 Technology" is defined in the Definition Agreement. "Generation 2 Technology" is defined in the Definition Agreement. "Gross Negligence" means any act or failure to act (whether sole, joint or concurrent) which seriously and substantially deviates from a diligent course of action or which is in reckless disregard of or indifference to the harmful consequences. "Hydrogen Applications" means applications in which the MCFCs are used solely for hydrogen generation in combination with power generation or combined heat and power generation. "Initial Payment" is defined in Paragraph 10.01(b) (Project Costs). "Inlet CO2 Concentration" means CO2 concentration in the cathode inlet measured at room temperature conditions (about 23oC) via gas chromatography, as calibrated according to conventional methods. "Inlet O2 Concentration" means O2 concentration in the cathode inlet measured at room temperature conditions (about 23oC) via gas chromatography, as calibrated according to conventional methods. "Inlet Water Concentration" means water concentration in the cathode inlet measured at room temperature conditions (about 23oC) via gas chromatography, as calibrated according to conventional methods. "8th Inning Invoice" is defined in Paragraph 10.01(d) (Project Costs). "9th Inning Invoice" is defined in Paragraph 10.01(d) (Project Costs). "License Agreement" means the agreement between the Parties effective June 11, 2019 entitled License Agreement bearing ExxonMobil Document No. LAW-2019-3245. "Major Competitor" means a company with a market capitalization in excess of fifty billion United States dollars ($50 billion USD) and whose principal business involves exploration for, and/or production of, crude oil and/or natural gas, manufacture of petroleum products and/or transportation and/or sale of crude oil, natural gas, and/or petroleum products. "Memorandum of Understanding" means the non-binding agreement between ExxonMobil and FCE effective August 26, 2019. "Milestone 1" is defined in the Definition Agreement. "Milestone 2" is defined in the Definition Agreement. "Milestone Payments" is defined in Paragraph 10.03 (Milestone Payments). "Molten Carbon Fuel Cells" or "MCFCs" means a powerplant system including MCFC Stacks and Balance of Plant based on a fuel cell that comprises an electrolyte, an anode, and a cathode wherein the electrolyte comprises one or more carbonate salts that are molten (liquid) at operating temperatures. An "MCFC Stack" is a set of fuel cells connected electrically in series, arranged vertically or horizontally, that share common ducting for the c<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>icable, its parent company); e) the approval by such entity's board of directors or shareholders of any reorganization or transaction that would cause any of the situations described in clauses (a) through (d) to occur; or f) the approval by the board of directors or other governing body or the shareholders or other equity holders of FCE of any plan or proposal for its liquidation or dissolution. The occurrence or non-occurrence of a Change in Control does not alter or limit section 14.01 of this Agreement. "Confidential Background Information" means, collectively, any and all Background Information that a Party is required to keep confidential pursuant to the terms and conditions of this Agreement. "Confidential Information" means, collectively, any and all Confidential Program Information, Confidential Background Information, and any other types of information, that a Party is required to keep confidential pursuant to the terms and conditions of this Agreement. "Confidential Program Information" means, collectively, any and all Program Information that FCE is required to keep confidential pursuant to the terms and conditions of this Agreement. Page 25 of 31 Source: FUELCELL ENERGY INC, 8-K, 11/6/2019 "Cure Period" means a period commencing on the date the defaulting Party receives the written notice of breach or default from the non-defaulting Party pursuant to Paragraph 12.03 and continuing until thirty (30) calendar days thereafter; provided, however, that if prior to the expiration of this period the defaulting Party provides the non-defaulting Party with written evidence that the breach or default cannot reasonably be cured within such period and the defaulting Party has promptly commenced and is diligently pursuing efforts to cure the breach or default, then the Cure Period shall continue as long as such diligent efforts to cure continue, but not beyond the date that is sixty (60) days after the expiration of the initial thirty (30) calendar day Cure Period. "Definition Agreement" means the agreement between the Parties effective as of October 31, 2019, bearing ExxonMobil Document No. LAW-2019-3850. "Disclosing Party" means the Party that discloses, directly or indirectly, information or other materials to the Receiving Party hereunder. "Direct Costs" means reimbursable costs, approved in advance by the Steering Committee, which are (i) operational expenditures of FCE associated with the Program not included in the FTE Cost, including subcontractors, (ii) material or capital expenditures of FCE associated with the Program; and (iii) approved FCE travel costs to attend SC meetings or conferences, and use of contractors in furtherance of a Project. "Effective Date" means October 31, 2019. "Exclusivity and Technology Access Fee" is defined in Paragraph 10.02 (Up-front Exclusivity and Technology Access Fee Payment). "ExxonMobil" is defined in the preamble. "ExxonMobil Background Information" means Background Information that: (a) was developed or acquired by ExxonMobil independently of a Project, and (b) is provided by ExxonMobil for use in a Project under this Agreement. ExxonMobil Background Information does not include Program Information. "ExxonMobil Background Sample" means a non-commercial sample of material, component, device, or the like that: (a) was developed or acquired by ExxonMobil independently of the Project, and (b) is provided by ExxonMobil for use in a Project under this Agreement. ExxonMobil Background Samples does not<|eot_id|>
5.471253
5.471253
works of product labeling in electronic version and promotional materials for the Products for the Territory. Green Cross shall be responsible for how and the manner in which Products shall be presented and described in the Territory to the medical community in any promotional materials for a Product intended to be disseminated in the Territory, and the placement of the name and logos of Green Cross t<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|> the scope of this Agreement in the Territory, MacroGenics shall notify Green Cross of any such activity and consult with Green Cross with respect thereto; provided, however, that MacroGenics shall not undertake any such activity if and to the extent such activity would have a material adverse affect on Green Cross. 4. ADJUSTMENT OF PHASE II CLINICAL DEVELOPMENT PLAN. If the Parties agree to add additional patients or Indications to the Phase II Clinical Development Plan, or replace the Indication specified therein as of the Effective Date with a new Indication, then the Parties shall negotiate in good faith to agree upon the terms applicable to such expansion or change. *** = Portions of this exhibit have been omitted pursuant to a request for confidential treatment. An unredacted version of this exhibit has been filed separately with the Commission. 20 5. COMMERCIALIZATION 5.1 Overview. Green Cross shall have full responsibility and authority for all aspects of the Commercialization of Products in the Territory at its sole expense, including, without limitation, developing and executing a plan for commercial launch, obtaining all required approvals from Regulatory Authorities for Commercialization (including, without limitation, reimbursement activities), marketing and promotion, booking sales and distribution and performance of related services, providing customer support, including handling medical queries, and performing other related functions. Green Cross shall use Commercially Reasonable Efforts to Commercialize the Products. Green Cross shall update MacroGenics regarding its Commercialization activities at regular meetings of the JSC as contemplated by Section 2.1.(e). As between Green Cross and MacroGenics, ***. Green Cross shall bear all of the costs and expenses incurred in connection with all such Commercialization activities in the Territory. Green Cross shall timely notify MacroGenics as to the occurrence of the First Commercial Sale in the Territory. 5.2 Product Labeling; Promotional Materials. Green Cross shall Commercialize the Products in the Territory under the worldwide brand specified by MacroGenics ("Product Brand"), except to the extent such branding is not permitted by any applicable Regulatory Authority, or deemed culturally inappropriate, in the Territory, in which case MacroGenics shall specify an alternate Product Brand. Except for the depiction of trademarks, logos and other symbols that are intended to identify MacroGenics' as a company or the manufacturer or owner of a Product, Green Cross shall be responsible for designing and supplying the printable art<|eot_id|>
3.150147
3.150147
lopment of Investigational markers in compliance with the investigational CDx budget that forms part of the R&D Plan. FMI shall pay […***…] of the FMI Development Cost for Approved Markers. Such reimbursement of FMI Development Cost shall be paid […***…] in arrears. Each […***…], FMI shall invoice Roche for its share of the FMI Development Cost incurred in the […***…]. Invoices shall be payable within […***…] after receipt by Roche of an invoice from FMI. 8.5.2 PMA Event Payments For each PMA approval corresponding to a Roche product, Roche shall pay FMI […***…], within […***…] after the occurrence of such event and receipt by Roche of an invoice from FMI. 8.5.3 Commercial Success Event Payments Roche shall pay FMI the following milestone payments upon achievement of CDx Assay report volumes by tissue type within the first […***…] after […***…] of the associated CDx Assay as specified below: (i) CDx Assays Including Investigational/Approved Marker(s) for […***…]: […***…]. (ii) CDx Assays Including Investigational/Approved Marker(s) for […***…]: […***…]. Upon achievement of each of the CDx Assay volumes under this Section 8.5.3, FMI shall timely notify Roche and payment shall be made by Roche within […***…] after achieving the applicable event and the receipt by Roche of an invoice from FMI. In the event the Parties wish to develop another CDx Assay other than those specified above for […***…] and […***…] pursuant to a CDx R&D Plan, the Parties shall mutually agree to […***…] milestones and payments for achieving them. 8.6 General Terms All rates and costs set forth herein shall remain firm for the Agreement Term and the services to be performed under each Work Stream, unless otherwise agreed to in writing, shall be at the FTE Rate. FMI has an affirmative obligation to use Commercially Reasonable Efforts to negotiate favorable terms for all FMI Development Cost that will be passed through FMI to Roche. FMI shall extend to Roche the benefit of any and all discounts and savings provided to FMI in connection with FMI Development Cost that will be passed through to Roche. Roche shall […***…], any amounts in excess of the agreed upon budget. ***Confidential Treatment Requested*** - 38 - 8.7 Disclosure of Payments FMI acknowledges that Roche may be obligated to disclose this financial arrangement, including all fees, payments and transfers of value, as may be advisable or required under Applicable Law, including the US Sunshine Act. 9. Accounting and reporti<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>Plan). Roche will pay FMI […***…] if FMI successfully […***…] set forth in the R&D Plan ("Initial Roche ctDNA Assay") within […***…] from [… ***…] (the "First ctDNA Milestone Date"). Payment by Roche shall be made within […***…] after achieving the First ctDNA Milestone Date and the receipt by Roche of an invoice from FMI. In addition, Roche will pay FMI […***…] if FMI successfully […***…] as agreed to in the R&D Plan; provided that […***…] (the "Second ctDNA Milestone Date"). Payment by Roche shall be made within […***…] after achieving the Second ctDNA Milestone Date and the receipt by Roche of an invoice from FMI. The Parties may develop additional ctDNA Assays for use as Clinical Study assays, subject to an agreed financial structure for such work under the R&D Plan. Such additional development work will be conducted, if at all, pursuant to an amendment to this Agreement or a separate written agreement between the Parties. ***Confidential Treatment Requested*** - 37 - 8.5 CDx Development Financial Terms 8.5.1 CDx Development Costs Roche shall pay FMI […***…] of FMI Development Cost for CDx Deve<|eot_id|>
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would not be enforced as written under Illinois law, then the parties agree that those covenants will instead be interpreted and construed under the laws of the state in which the Franchised Business is located. Nothing in this Section 27.1 is intended by the parties to invoke the application of any franchise, business opportunity, antitrust, implied covenant, unfair competition, fiduciary, and/or other doctrine of law of the State of Illinois (or any other state) that would not otherwise apply without this Section 27.1 2. Section 27.2 of the Franchise Agreement is amended by the addition of the following: Notwithstanding anything to the contrary contained in this Section 27.2, any claims arising under the Illinois Franchise Disclosure Act may be brought in Illinois. 3. Section 27.7 of the Franchise Agreement is deleted in its entirety and the following Section 27.7 is substituted in lieu thereof: 27.7 Must bring claims within one year. Each party to this agreement agrees that any and all claims and actions arising out of or relating to this agreement, the parties' relationship, and/or your operation of the franchised business, brought by any party hereto against the other, shall be commenced within one (1) year from the occurrence of the facts giving rise to such claim or action, or, it is expressly acknowledged and agreed by all parties, such claim or action shall be irrevocably barred; provided, however, that the time limit for filing claims contained in this Section 27.7 shall not apply FDD Exhibit H-5 to claims or actions arising under the Illinois Franchise Disclosure Act. 4. Section 27 is amended by the addition of the following new Section 27.10 which shall be an integral part of the Franchise Agreement: 27.10 Nothing contained in this Agreement shall be deemed to waive any right you may have under the Illinois Franchise Disclosure Act of 1987. If anything in this Agreement is deemed to be contrary to or inconsistent with the Act, the terms of the Act will control. 5. This Amendment shall be effective only to the extent that the jurisdictional requirements of the Illinois law are met independently of and without reference to this Amendment. This Amendment shall have no effect if the jurisdictional requirements of the Illinois law are not met. IN WITNESS WHEREOF, we and you agree to be bound by the terms of this Amendment to be effective as of the Effective Date of the Franchise Agreement. GOOSEHEAD INSURANCE AGENCY, LLC FRANCHISEE By: By: Name: P. Ryan Langston Name: Title: Vice President and General Counsel Title: FDD Exhibit H-6 ADDENDUM TO GOOSEHEAD INSURANCE AGENCY, LLC FRANCHISE DISCLOSURE DOCUMENT FOR THE STATE OF MARYLAND In recognition of the requirements of the Maryland Franchise Registration and Disclosure Law, the Franchise Disclosure Document for Goosehead Insurance Agency, LLC for use in the State of Maryland shall be amended as follows: 1. Item 17, "Renewal, Termination, Transfer and Dispute Resolution," shall be amended by the addition of the following language: The Franchise Agreement provides for termination upon bankruptcy of the franchisee. This provision may not be enforceable under the U.S. Bankruptcy Code (11 U.S.C. Section 101, et seq.). Any claims arising under the Maryland Franchise Registration and Disclosure Law must be brought within 3 years after the grant of the franchise. Any general release required as a condition of renewal, sale, and/or assignment/transfer shall not apply to any liability under the Maryland Franchise Registration and Disclosure Law. 2. Exhibit I, "Franchisee Compliance Questionnaire," shall be amended by the addition of the following at the end of Exhibit I: The representations under this Franchisee Compliance Questionnaire are not intended, nor shall they act as a release, estoppel or waiver of any liability incurred under the Maryland Franchise Registration and Disclosure Law. 3. Each provision of this Addendum to the Disclosure Document shall be effective only to the extent, with respect to such provision, that the jurisdictional requirements of the Maryland Franchise Registration and Disclosure Law are met independently without reference to this Addendum. FDD Exhibit H-7 AMENDMENT TO GOOSEHEAD INSURANCE AGENCY, LLC FRANCHISE AGREEMENT FOR THE STATE OF MARYLAND In recognition of the requirements of the Maryland Franchise Registration and Disclosure Law, the parties to the attached Goosehead Insurance Agency, LLC Franchise Agreement (the "Agreement") agree as follows: 1. Section 2.2.7 of the Agreement, under the heading "Term and Renewal," shall be deleted in its entirety and shall have no force or effect, and the following shall be substituted in lieu thereof: 2.2.7 You agree to sign and deliver to us a release, in a form that we will provide (which will be a mutual release with limited exclusions), which will release all claims against us and our affiliates, and our respective officers, directors, members, managers, agents, and employees. If you are an entity, then your affiliates and your direct and indirect owners (and any other parties that we reasonably request) must also sign and deliver that release to us, excluding only such claims as the Franchisee may have under the Maryland Franchise Registration and Disclosure Law; 2. Section 16.5.1 of the Agreement, under the heading "Transfer of Interest," shall be deleted in its entirety and shall have no force or effect, and the following shall be substituted in lieu thereof: 16.5.1 The transferor must have executed a general release, in a form satisfactory to us, of any and all claims against us and our affiliates, successors, and assigns, and their respective officers, directors, members, managers, shareholders, partners, agents, representatives, servants, and employees in their corporate and individual capacities including, without limitation, claims arising under this Agreement, any other agreement between you and us, and/or our respective affiliates, and federal, state, and local laws and rules, excluding only such claims as the Franchisee may have under the Maryland Franchise Registration and Disclosure Law; 3. Sections 27.1, 27.2, and 27.7 of the Agreement, under the heading "Applicable and Dispute Resolution," shall be amended by the addition of the following language: A franchisee may bring a lawsuit in Maryland for claims arising under the Maryl<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>iver of Franchisee's rights under the Franchise Investment Law (California Corporations Code Section 31000-31516). Business and Professions Code Section 20010 voids a waiver of Franchisee's rights under the Franchise Relations Act (Business and Professions Code Sections 20000-20043). 5. We maintain an Internet website at www.goosehead.com. OUR WEBSITE HAS NOT BEEN REVIEWED OR APPROVED BY THE CALIFORNIA DEPARTMENT OF BUSINESS OVERSIGHT. ANY COMPLAINTS CONCERNING THE CONTENT OF THIS WEBSITE MAY BE DIRECTED TO THE CALIFORNIA DEPARTMENT OF BUSINESS OVERSIGHT AT www.dbo.ca.gov. 6. This Addendum shall be effective only to the extent that jurisdictional requirements of the California Franchise Investment Law or the California Franchise Relations Act are met independently of and without reference to this Addendum. This Addendum shall have no effect if the jurisdictional requirements of the California Franchise Investment Law or the California Franchise Relations Act are not met. FDD Exhibit H-2 AMENDMENT TO GOOSEHEAD INSURANCE AGENCY, LLC FRANCHISE AGREEMENT FOR THE STATE OF CALIFORNIA In recognition of the requirements of California's Franchise Investment Law and the California Franchise Relations Act, the Goosehead Insurance Agency, LLC Franchise Agreement shall be supplemented as follows: 1. Section 17.3 of the Franchise Agreement is amended to read as follows: 17.3 Termination with Notice and Opportunity to Cure. Except as otherwise provided in Sections 17.1 and 17.2 of this Agreement, you will have 60 days after your receipt from us of a written notice of default within which to remedy any default under this Agreement and to provide evidence thereof to us. You may avoid termination by immediately initiating a remedy to cure such default and curing it to our satisfaction within the sixty-day period, and by promptly providing proof thereof to us. If any such default is not cured within the specified time, or such longer period as applicable law may require, this Agreement will terminate without further notice to you, effective immediately upon the expiration of the sixty-day period or such longer period as applicable law may require. You will be in default pursuant to this Section 17.3 for failure substantially to comply with any of the requirements imposed by this Agreement, as it may from time to time reasonably be supplemented by the Manual, or failure to carry out the terms of this Agreement in good faith. Such defaults include, but are not limited to, the following illustrative events: 2. This Amendment shall be effective only to the extent that jurisdictional requirements of the California Franchise Investment Law or the California Franchise Relations Act are met independently of and without reference to this Amendment. This Amendment shall have no effect if the jurisdictional requirements of the California Franchise Investment Law or the California Franchise Relations Act are not met. IN WITNESS WHEREOF, we and you agree to be bound by the terms of this Amendment to be effective as of the Effective Date of the Franchise Agreement. GOOSEHEAD INSURANCE AGENCY, LLC FRANCHISEE By: By: Name: P. Ryan Langston Name: Title: Vice President and General Counsel Title: FDD Exhibit H-3 ADDENDUM TO GOOSEHEAD INSURANCE AGENCY, LLC FRANCHISE DISCLOSURE DOCUMENT FOR THE STATE OF ILLINOIS In recognition of the requirements of the Illinois law, the Goosehead Insurance Agency, LLC Franchise Disclosure Document shall be supplemented as follows: 1. The Risk Factors on the Franchise Disclosure Document cover page of this disclosure document are modified to comply with Section 4 of the Illinois Franchise Disclosure Act, which provides that any provision in a franchise agreement that designates jurisdiction or venue in a forum outside of Illinois is void. 2. Item 17 of the disclosure document is modified by substituting the following in place of provisions v. and w., in the chart: PROVISION SECTION IN FRANCHISE AGREEMENT SUMMARY v. Choice of forum Section 25.5 Litigation may be brought in Illinois. w. Choice of law Section 25.1 Except to the extent governed by the Lanham Act, Illinois law (including the Illinois Franchise Disclosure Act) will apply to Illinois franchisees. and by adding the following paragraph to the end of the chart: "THE CONDITIONS UNDER WHICH YOUR FRANCHISE CAN BE TERMINATED AND YOUR RIGHTS UPON NON-RENEWAL MAY BE AFFECTED BY ILLINOIS LAW: 815 ILCS 705/19 AND 20.". 3. This Addendum is effective only to the extent that the jurisdictional requirements of the Illinois law are met independently of and without reference to this Addendum. This Addendum will have no effect if the jurisdictional requirements of the Illinois law are not met. FDD Exhibit H-4 AMENDMENT TO GOOSEHEAD INSURANCE AGENCY, LLC FRANCHISE AGREEMENT FOR THE STATE OF ILLINOIS In recognition of the requirements of the Illinois law, the Goosehead Insurance Agency, LLC Franchise Agreement shall be supplemented as follows: 1. Section 27.1 of the Franchise Agreement is deleted in its entirety and the following Section 27.1 is substituted in lieu thereof: 27.1 This Agreement takes effect when we accept and sign this document. This Agreement will be interpreted and construed exclusively under the laws of the State of Illinois, which laws will prevail in the event of any conflict of law (without regard to, and without giving effect to, the application of Illinois choice-of-law rules); provided, however, that if the covenants in Section 19 of this Agreement<|eot_id|>
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cooperation agreement between The Meet Group and Harvest Capital will be included as an exhibit to a Current Report on Form 8-K that The Meet Group will file with the Securities and Exchange Commission. Morgan, Lewis & Bockius LLP served as legal counsel to The Meet Group. Olshan Frome Wolosky LLP served as legal advisor to Harvest Capital. The Meet Group also announced today that it has appointed The Blueshirt Group to lead its investor relations communications and strategy. The Blueshirt Group is a leading tech-focused investor relations firm that specializes in investor relations, IPO advisory, financial communications, financial media relations and crisis management. About Jim Parmelee Mr. Parmelee brings over 25 years of technology industry experience. He is currently an advisor to Hamilton Robinson Capital Partners, a middle market focused private equity firm. Jim was previously a Managing Director in Peak Ten Management LLC, where he was responsible for the firm's investments in the software, Internet and technology infrastructure verticals. Before Peak Ten, Jim was a Partner in Union Square Advisors, an M&A advisory firm focused on the technology sector, where he led the firm's global Information Technology infrastructure practice. Jim was previously a leading data networking and telecom equipment equity research analyst at Credit Suisse First Boston (now Credit Suisse). Jim was highly ranked by external polls throughout his research career including being named six times to Institutional Investor Magazine's All America Research Team. 19 About The Meet Group The Meet Group (NASDAQ: MEET) is a fast-growing portfolio of mobile apps designed to meet the universal need for human connection. Using innovative products and sophisticated data science, The Meet Group keeps its approximately 2.8 million mobile daily active users engaged and originates untold numbers of casual chats, friendships, dates, and marriages. The Meet Group offers advertisers the opportunity to reach customers on a global scale with hundreds of millions of daily mobile ad impressions. The Meet Group utilizes high user density, economies of scale, and leading monetization strategies with the goal of maximizing adjusted EBITDA. Our apps - currently MeetMe , Skout , Tagged , and Hi5 - let users in more than 100 countries chat, share photos, stream live video, and discuss topics of interest, and are available on iPhone, iPad, and Android in multiple la<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>ly for the benefit of the party to whom such representations, warranties or agreements are made, and shall confer no rights, benefits, remedies, obligations, or liabilities hereunder, whether legal or equitable, in any other person or entity, and no other person or entity shall be entitled to rely thereon. 26. Counterparts; Facsimile / PDF Signatures. This Agreement and any amendments hereto may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by the other parties hereto. In the event that any signature to this Agreement or any amendment hereto is delivered by facsimile transmission or by e-mail delivery of a portable document format (.pdf or similar format) data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or ".pdf" signature page were an original thereof. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] [SIGNATURE PAGE FOLLOWS] 15 [SIGNATURE PAGE TO COOPERATION AGREEMENT] IN WITNESS WHEREOF the parties have duly executed and delivered this Agreement as of the date first above written. THE MEET GROUP, INC. By: /s/ Frederic Beckley Name: Frederic Beckley Title: General Counsel & EVP Business Affairs HARVEST SMALL CAP PARTNERS MASTER, LTD. By: Harvest Capital Strategies LLC Investment Manager By: /s/ Jeffrey B. Osher Name: Jeffrey B. Osher Title: Managing Director HARVEST SMALL CAP PARTNERS, L.P. By: Harvest Capital Strategies LLC Investment Manager By: /s/ Jeffrey B. Osher Name: Jeffrey B. Osher Title: Managing Director HARVEST SMALL CAP PARTNERS GP, LLC By: Harvest Capital Strategies LLC Investment Manager of the Limited Partner By: /s/ Jeffrey B. Osher Name: Jeffrey B. Osher Title: Managing Director HARVEST CAPITAL STRATEGIES LLC By: /s/ Jeffrey B. Osher Name: Jeffrey B. Osher Title: Managing Director /s/ Jeffrey B. Osher JEFFREY B. OSHER 16 CERTAIN PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. SUCH OMITTED PORTIONS, WHICH ARE MARKED WITH BRACKETS [ ] AND AN ASTERISK*, HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. EXHIBIT A DIRECTOR CANDIDATE POOL [***] 17 EXHIBIT B STOCKHOLDERS, AFFILIATES, AND OWNERSHIP Investor Shares of Common Stock Beneficially Owned Harvest Small Cap Partners Master, Ltd. 2,763,182 Harvest Small Cap Partners, L.P. 1,661,818 Aggregate total beneficially owned by the Investor Group: 4,425,000 18 EXHIBIT C FORM OF PRESS RELEASE THE MEET GROUP REACHES AGREEMENT WITH HARVEST CAPITAL Agrees to Appoint Two New Independent Directors to The Meet Group's Board NEW HOPE, PA, June 27, 2017 - The Meet Group, Inc. (NASDAQ: MEET), a public market leader in the mobile meeting space, today announced that it has entered into a cooperation agreement with Harvest Capital Strategies LLC and its affiliates, which, in the aggregate, beneficially owns approximately 6.3% of The Meet Group's outstanding shares, regarding the composition of The Meet Group's Board of Directors. Under the terms of the agreement, The Meet Group has agreed to appoint to its Board two new independent directors: Jim Parmelee, who has agreed to join the Meet Group Board effective immediately, and a second director mutually acceptable to The Meet Group and Harvest Capital to be identified within the next ninety days. Spencer G. Rhodes, The Meet Group's Chairman of the Board, stated, "We are pleased to have reached this cooperation agreement with Harvest Capital, as we believe this outcome serves the best interests of The Meet Group and its stockholders. We are also pleased to welcome Jim Parmelee to our Board and look forward to the insights and experience he will bring." Jeffrey B. Osher, the Managing Director of Harvest Capital, stated, "We have spent considerable time with The Meet Group's senior management team and strongly support their strategy of creating a compelling portfolio of mobile meeting apps. Under Geoff Cook's leadership, The Meet Group has methodically grown its global platform while delivering consistent profitability and cash flow. We look forward to continuing our collaboration with The Meet Group's Board and senior management team as they execute on their long-term growth initiatives and focus on shareholder value creation." Pursuant to the cooperation agreement, Harvest Capital has agreed that, until the certification of the shareholder vote at The Meet Group's 2018 Annual Meeting of Stockholders, it will abide by certain customary standstill provisions. The <|eot_id|>
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aging and Labeling or Commercialization of the Antibody or a Product hereunder during or after the Term (including, for clarity, any product liability Losses resulting therefrom) by Aimmune (or its Affiliates, Sublicensees, subcontractors, wholesalers or distributors) or their respective officers, directors, employees, agents or consultants, in each case except to the extent that such Losses are subject to indemnification by Xencor pursuant to Section 11.1. 11.3 Indemnification Procedures. 11.3.1 A Party believing that it is entitled to indemnification under, as applicable, Section 11.1 or Section 11.2 (an "Indemnified Party") shall give prompt written notification to the other Party (the "Indemnifying Party") of the commencement of any Claim for which indemnification may be sought or, if earlier, upon the assertion of any such Claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Claim as provided in this Section 11.3.1 shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually materially prejudiced as a result of such failure to give notice). Within [***] ([***]) days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such Claim with counsel reasonably satisfactory to the Indemnified Party. If a Party believes that a Claim presented to it for indemnification is one as to which the Party seeking indemnification is not entitled to indemnification under, as applicable, Section 11.1 or Section 11.2, it shall so notify the Party seeking indemnification. 11.3.2 If the Indemnifying Party elects to assume the defense of such Claim, the Indemnified Party may participate in such defense at its own expense; provided, that if the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such Claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith. 11.3.3 The Indemnifying Party shall keep the Indemnified Party advised of the status of such Claim and the defense thereof and shall consider recommendations made by the Indemnified Party with respect thereto. 35 Source: AIMMUNE THERAPEUTICS, INC., 8-K, 2/5/2020 11.3.4 The Indemnified Party shall not agree to any settlement of such Claim without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not agree to any settlement of such Claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party or adversely affects the Indemnified Party without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld. 11.4 Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, OR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES ARISING FROM OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION 11.4 IS INTENDED TO OR SHALL LIMIT OR RESTRICT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF ANY PARTY UNDER SECTION 11.1 or 11.2, OR DAMAGES AVAILABLE FOR A PARTY'S BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER ARTICLE 12. 11.5 Insurance. Aimmune shall procure and maintain insurance, including clinical trials insurance and product liability insurance, adequate to cover its obligations hereunder and which is consistent with normal business practices of prudent companies similarly situated at all times during which the Product is being clinically tested in human subjects or commercially distributed or sold by Aimmune pursuant to this Agreement; provided, that any such clinical trials insurance coverage shall, prior to the First Commercial Sale of a Product, in no event be less than [***] Dollars ($[***]) per loss occurrence, and product liability insurance coverage shall, after such First Commercial Sale, in no event be less than [***] Dollars ($[***]) per loss occurrence. It is understood that such insurance shall not be construed to create a limit of Aimmune's liability with respect to its indemnification obligations under this ARTICLE 11. Aimmune shall provide Xencor with written evidence of such insurance prior to commencement of this Agreement and upon expiration of any one coverage. Aimmune shall provide Xencor with written notice at least [***] ([***]) days prior to the cancellation, nonrenewal or material change in such insurance or self-insurance which materially adversely affects the rights of Xencor hereunder. ARTICLE 12 CONFIDENTIALITY 12.1 Confidential Information. 12.1.1 The Parties agree that during the Term, and for a period of [***] ([***]) years thereafter, a Party receiving Confidential Information of the other Party will (X) maintain in confidence such Confidential Information to the same extent such Party maintains its own proprietary information of simil<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>is the subject of ongoing clinical research and development and that Xencor cannot ensure the safety or usefulness of the Product or that the Product will receive Regulatory Approvals. 33 Source: AIMMUNE THERAPEUTICS, INC., 8-K, 2/5/2020 10.5 No Other Representations or Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR NON-MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, ARE MADE OR GIVEN BY OR ON BEHALF OF A PARTY. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ALL REPRESENTATIONS AND WARRANTIES, WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, ARE HEREBY EXPRESSLY EXCLUDED. 10.6 Compliance. 10.6.1 Compliance with Anti-Corruption Laws. In connection with this Agreement, each Party represents, warrants and covenants to the other Party that it has complied and will comply with all Applicable Laws (including Anti-Corruption Laws) and industry codes dealing with government procurement, conflicts of interest, corruption or bribery, including, if applicable, the U.S. Foreign Corrupt Practices Act of 1977, as amended, and any laws enacted to implement the Organization of Economic Cooperation and Development Convention on Combating Bribery of Foreign Officials in International Business Transactions. 10.6.2 Prohibited Conduct. In connection with this Agreement, each Party represents, warrants and covenants to the other Party that it has not made, offered, given, promised to give, or authorized, and will not make, offer, give, promise to give, or authorize, any bribe, kickback, payment or transfer of anything of value, directly or indirectly, to any person or to any Government Official for the purpose of: (i) improperly influencing any act or decision of the person or Government Official; (ii) inducing the person or Government Official to do or omit to do an act in violation of a lawful or otherwise required duty; (iii) securing any improper advantage; or (iv) inducing the person or Government Official to improperly influence the act or decision of any organization, including any government or government instrumentality, in order to assist such Party in obtaining or retaining business. ARTICLE 11 INDEMNIFICATION 11.1 Indemnification by Xencor. Xencor hereby agrees to save, indemnify, defend and hold Aimmune, its Affiliates, and their respective directors, officers, agents and employees harmless from and against any and all losses, damages, liabilities, costs and expenses (including reasonable attorneys' fees and expenses) (collectively, "Losses") arising in connection with any and all charges, complaints, actions, suits, proceedings, hearings, investigations, claims, demands, judgments, orders, decrees, stipulations or injunctions by a Third Party (each a "Claim") resulting or otherwise arising from (i) any breach by Xencor of any of its representations, warranties, covenants or obligations pursuant to this Agreement, (ii) the Development, Manufacturing, Commercialization (if applicable, after the Term) or the performance of a Clinical Trial for the Antibody or Product conducted by or on behalf of Xencor (or its Affiliates, licensees (other than Aimmune and its Affiliates and Sublicensees), sublicensees, or independent contractors), prior to the Effective Date or after the Term, provided that this Section (ii) is not intended to extend to strict liability Claims relating to the Product, (iii) [***], and (iv) the negligence or willful misconduct by Xencor or its Affiliates, licensees, sublicensees or subcontractors or their respective officers, directors, employees, agents or consultants in performing any obligations under this Agreement, in each case except to the extent that such Losses are subject to indemnification by Aimmune pursuant to Section 11.2. 34 Source: AIMMUNE THERAPEUTICS, INC., 8-K, 2/5/2020 11.2 Indemnification by Aimmune. Aimmune hereby agrees to save, indemnify, defend and hold Xencor, its Affiliates, and their respective directors, agents and employees harmless from and against any and all Losses arising in connection with any and all Claims resulting or otherwise arising from (i) any breach by Aimmune of any of its representations, warranties, covenants or obligations pursuant to this Agreement, (ii) [***], (iii) the negligence or willful misconduct by Aimmune (or its Affiliates, Sublicensees, subcontractors, wholesalers or distributors) or their respective officers, directors, employees, agents or consultants in performing any obligations under this Agreement, or (iv) the Development, Manufacturing, Pack<|eot_id|>
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ds; (c) attending, if so requested by Oaktree US, meetings held with such investors; (d) if required by Oaktree US, arranging the administration of and receiving and collating application forms from such investors and passing the completed applications to Oaktree US for processing; and (e) the provision of any other marketing service as Oaktree US may require from time to time in Europe and the Middle East. 3. FEES 3.1 In consideration of the provision of services under this Agreement, Oaktree US will pay the Sub-Advisor such fees as may be agreed between the parties from time to time (the "Service Fee"). 3.2 At Oaktree US' discretion, the Service Fee shall be reduced by any management fees received directly by the Sub-Advisor for investment management services provided to any party pursuant to this Agreement. The Service Fee shall also be reduced by any amounts earned on cash and cash-equivalents held by the Sub-Advisor pursuant to this Agreement. 3.3 The Service Fee shall be reviewed by Oaktree US and the Sub-Advisor once annually (or as the parties agree) for continued appropriateness and in particular, to account for any changes in the Sub-Advisor's business. 4. ADMINISTRATIVE FUNCTIONS Oaktree US and its affiliates will provide all fund and investor accounting, fund investor reporting, custodial services and similar administrative functions required in respect of the Funds. Oaktree US will provide such services in a manner and quality consistent with past practices in connection with the management of the Funds. 5. CUSTODY 5.1 All documents of or evidencing title to the Funds' investments shall be held in safe custody facilities by a custodian to be selected by Oaktree US (the "Custodian") subject to the terms of a custody agreement made between Oaktree US and the Custodian and subject to such other arrangements and procedures as may be agreed between Oaktree US and the Custodian from time to time. The Sub-Advisor shall at no time have custody or physical control of the invested assets of the Funds nor shall it be liable for any act or omission of the Custodian. 5.2 Oaktree US shall take such additional steps (in addition to the authorities and powers hereby conferred) as are necessary to procure that the Sub- Advisor is able, on behalf of <|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>er 2018 BETWEEN: (1) Oaktree Capital Management, L.P. a Delaware limited partnership of 333 South Grand Avenue, 28th Floor, Los Angeles, CA 90071 ("Oaktree US"); and (2) Oaktree Capital Management (International) Limited, a private limited company (registered number 11311066) registered in England and Wales of Verde, 10 Bressenden Place, London, SW1E 5DH (the "Sub-Advisor"). RECITALS (A) Oaktree US is general partner and/or investment manager of the funds and separate accounts referred to in Schedule 2 (the "Funds"). (B) The Funds were established under the applicable limited partnership or other governing agreements (the "Fund Agreements"). (C) The Sub-Advisor has been constituted for the purposes of carrying on the business of a fund manager and advisor in the United Kingdom. The Sub- Advisor is authorised and regulated by the United Kingdom's Financial Conduct Authority (the "FCA") under Part IV of the Financial Services and Markets Act 2000 ("FSMA") (with registration number 814006). (D) The Sub-Advisor currently provides certain unregulated services to Oaktree US under a services agreement dated 11 June 2018, which shall be terminated on the date of this Agreement (the "Terminated Agreement"). (E) Oaktree US may in the future appoint the Sub-Advisor as a sub-advisor or sub-manager in connection with such collective investment schemes, mutual funds, separate accounts or companies as may be agreed from time to time (together, the "New Fund(s)"), upon the terms and conditions set forth in this Agreement. THE PARTIES AGREE AS FOLLOWS: 1. APPOINTMENT AND SCOPE OF AUTHORITY 1.1 The parties hereby agree that the Terminated Agreement shall terminate and cease to have effect for all purposes, and shall simultaneously be replaced by this Agreement, with effect from 25 September 2018 (the "Effective Date"). For the avoidance of doubt, the appointment of the Sub-Advisor to provide services to Oaktree US shall be continuous before, on and after the Effective Date, but shall have effect from and after the Effective Date solely subject to the terms and conditions of this Agreement. 1.2 Oaktree US hereby confirms the appointment of the Sub-Advisor as sub-investment manager and sub-advisor to the Funds and to provide the services set out in Clause 2, and the Sub-Advisor accepts such appointments, on the terms and conditions set forth in this Agreement. 1.3 Oaktree US furthermore hereby appoints the Sub-Advisor to provide certain marketing and promotion services in relation to the Funds as set out in Clause 2, on the terms and conditions set forth in this Agreement and the Sub-Advisor accepts such appointment. 1.4 The Sub-Advisor acknowledges that it is a relying adviser under the U.S. Investment Advisers Act of 1940 (as amended) (the "Advisers Act") and the rules and regulations promulgated thereunder. If and to the extent the assets of any Discretionary Fund or Restricted Fund managed by Oaktree US are treated as "plan assets" as determined pursuant to 29 C.F.R. 2501.3-101 (or any successor thereto), the Sub-Advisor acknowledges that it will be a fiduciary for purposes of the U.S. Employee Retirement Income Security Act of 1974 ("ERISA") with respect to each employee benefit plan subject to section 406 of ERISA or section 4975 of the Internal Revenue Code of 1986 whose assets are deemed to be held by the applicable Fund to the extent required under ERISA to continue to manage or sub-advise the applicable Funds. 1.5 The appointment of the Sub-Advisor pursuant to this Agreement shall be subject always to: 2 (a) the terms and conditions in the relevant Fund Agreements governing the Funds, and the Sub-Advisor hereby agrees to observe the terms and conditions in such Fund Agreements; (b) any restrictions, limitations or conditions on, or any amendments made to, the Sub-Advisor's authority which may be imposed by Oaktree US as general partner and/or investment manager of the Funds from time to time; and (c) Oaktree US's power and authority to act at all times in respect of any of the Funds as general partner and/or investment manager of the Funds (as applicable) 1.6 Without limiting the discretion of Oaktree US pursuant to Clause 1.5(b), Oaktree US may limit the scope of the Sub-Advisor's appointment in respect of any of the Funds by means of: (a) limiting the appointment to sub-advisory services in respect of a section of the relevant Fund's portfolio of investments; (b) limiting the appointment to sub-advisory services in respect of a particular investment or investments; (c) limiting the Sub-Advisor's responsibility in respect of the monitoring and/or realisation of an investment or investments; or (d) retaining discretion to decide upon the acquisition, disposal, conversion or underwriting of investments. 1.7 Without limiting the discretion of Oaktree US pursuant to Clause 1.5(b), Oaktree US reserves the right as general partner and/or investment manager, in the interests of the Funds, to undertake the management of the Funds' investments and assets to the exclusion of the Sub-Advisor during any period in which the Sub-Advisor is unable to perform its duties under this Agreement due to the permanent or temporary absence of the investment professional(s) employed for the time being by the Sub-Advisor (whether due to holiday, sickness or otherwise). 1.8 The provisions in Clauses 1.5 to 1.7 shall have overriding effect against all other provisions of this Agreement. 1.9 The Sub-Advisor shall act honestly, with due skill, care and diligence and fairly and in the best interest of the Partnership in carrying out its obligations under this Agreement and shall use all reasonable endeavours to perform its obligations under this Agreement in accordance with FSMA, the FCA Rules and any other laws, regulations, guidelines and guidance as may be in force from time to time and applicable to the Funds and their business or to the Sub-Advisor ("Applicable Law"). 2. SERVICES 2.1 Without limiting the discretion of Oaktree US pursuant to Clause 1.5(b), and without prejudice to Clauses 1.6 and 1.7, the Sub-Advisor shall be appointed to assist Oaktree US with the management of the investments and assets of the Funds. 2.2 In connection with the appointment pursuant to Clause 2.1 but subject at all times to Clause 1: (a) Oaktree US hereby delegates to the Sub-Advisor all such powers, authorities and discretions as shall be necessary to enable the Sub-Advisor to perform its duties as sub-manager under this Agreement; and (b) the Sub-Advisor shall have full power and authority hereunder to decide whether the Funds should acquire or dispose of an investment and Oaktree US grants the Sub-Advisor discretion, without consultation to Oaktree US, to: (i) make investment decisions with respect to invested assets of the Funds; and (ii) enter into such investment documents and effect such transactions (including, if applicable, instructing the Custodian (as defined in Clause 5.1 below) of the Funds in respect of transfers, withdrawals or receipts of money) as may be necessary or proper in connection with the performance by the Sub-Advisor of its duties hereunder. 3 2.3 Without limiting the discretion of Oaktree US pursuant to Clause 1.5(b), and without prejudice to Clauses 1.6 and 1.7, the marketing and promotion services to be provided by the Sub-Advisor in respect of the Funds will be: (a) assisting Oaktree US to promote any Fund to potential investors in Europe and the Middle East to facilitate subscriptions from such investors; (b) advising Oaktree US concerning all actions which it appears to the Sub-Advisor that Oaktree US should consider taking to achieve effective promotion of investor interest in such Fun<|eot_id|>
9.429278
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rther that nothing in this Paragraph 2(b)(i) will limit Fox's indemnification under Paragraph 14 or any other rights and remedies Fox may have under this Agreement. Licensee shall use all commercially reasonable efforts to cause the Licensed CSPs to make available to end users the Wireless Products for each of the Major Releases and Targeted Releases no later than ***** prior to the initial theatrical release of each of the Major Releases and Targeted Releases. (c) Distribution: (i) CSP Distribution: Licensee shall distribute the Wireless Products to end users through the Licensed CSPs and each Licensed CSP's respective Internet portals and distribution systems ("Distribution Channel"). (A) Minimum Subscriber Market Penetration: Licensee shall use all commercially reasonable efforts to secure distribution of the Wireless Products through CSPs and to ensure that the Wireless Products are Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ ***** The omitted portions of this exhibit have been filed with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 promulgated under the Securities Act of 1933. -6- Source: GLU MOBILE INC, S-1/A, 3/19/2007 available on substantially all medium and high volume handsets of all Licensed CSPs, which for the purposes of this obligation shall include VGSL. (1) Major Releases: Licensee furthermore shall use all commercially reasonable efforts to achieve the following market penetration targets in Europe for the Major Releases ("Market Penetration Targets"): (1) distribution of the Wireless Products for the Major Releases through CSP's that hold at least ***** (*****%) of the subscribers in Western Europe during the ***** of this Agreement; and (2) distribution of the Wireless Products for the Major Releases through CSP's that hold at least ***** percent (*****%) of the subscribers in Western Europe during the ***** of this Agreement. If Licensee fails to reach the Market Penetration Targets Fox shall in its sole discretion have the right to terminate Licensee's exclusivity under this Agreement. In the event of termination of Licensee's exclusivity for Licensee's failure to achieve the Market Penetration Targets, Fox shall not distribute the Wireless Products which have been developed by Licensee prior to such termination, without first obtaining a license from Licensee on terms to be mutually agreed in each party's reasonable discretion, for the exploitation of the Licensee Materials. (2) Targeted Releases: Fox acknowledges that Licensee may not be able to secure placement of all Targeted Releases at the levels set forth for the Market Penetration Targets defined in the previous sub-Paragraph. Notwithstanding the foregoing, Licensee shall use all commercially reasonable efforts to secure the widest possible distribution of the Wireless Products derived from the Targeted Releases in Europe. (ii) VGSL and T-Mobile Distribution: For the Territories (as defined in Paragraph 3 below) set forth in Paragraph 2(c)(ii)(A) below, Licensee expressly acknowledges and agrees that Fox has entered into the VGSL Agreement with VGSL for the development of certain Wireless Products as set forth in Paragraph 2(a)(ii) above, and for the distribution of such Wireless Products. Fox has also entered into a separate agreement with T-Mobile to permit T-Mobile to distribute certain Wireless Products to end users outside of the United States the "T-Mobile Agreement"). Licensee hereby grants all licenses to Fox to enable Fox to provide Wireless Products to VGSL and T-Mobile for distribution to VGSL and T-Mobile subscribers outside of the United States in accordance with the terms of this Agreement, and shall further deliver such Wireless Products to VGSL and T-Mobile on behalf of Fox. Licensee further acknowledges and agrees that pursuant to the VGSL Agreement and the T-Mobile Agreement, VGSL and T-Mobile will remit directly to Fox all receipts generated from sales of the Wireless Products to VGSL and T-Mobile subscribers. Fox will pass through all such receipts received from VGSL and T-Mobile to Licensee and such receipts shall be treated as Gross Receipts, as defined in Paragraph 7(a)(ii) below, for the purpose of this Agreement. Licensee shall not enter into an exclusive distribution agreement with Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ ***** The omitted portions of this exhibit have been filed with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 promulgated under the Securities Act of 1933. -7- Source: GLU MOBILE INC, S-1/A, 3/19/2007 a CSP in any of the VGSL Territories listed in Paragraph 2(c)(ii)(A) below, and Fox has not granted and will not grant any exclusive distrib<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>es mandated by such Licensed CSPs so as to enable the release of the Wireless Products ***** prior to the initial theatrical release of each Property in each of the Territories as defined in Paragraph 3 below (the "Wireless Products Latest Commencement Date"). If Licensee fails to make the Wireless Products commercially available to the CSPs by the Wireless Products Latest Commencement Date, and such failure is not due solely to any delay by Fox in delivery of the PSM Materials, Fox shall have the right to terminate this Agreement immediately upon notice to Licensee and all rights to utilize the PSM shall automatically revert to Fox; provided that, subject to Paragraph 9(b)(ii) below, Fox will not exercise the right to terminate with respect to any delayed delivery of Wireless Products for films that have their initial theatrical release prior to June 30, 2005; and provided fu<|eot_id|>
5.049031
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the MHC and the Bank and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Regulations, Section 563b.7(f)(1)(i), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that their opinion of the aggregate pro forma market value of the Company, the MHC and the Bank expressed in their Appraisal dated as of December __, 1999, and most recently updated, remains in effect. (j) The Company, the MHC and the Bank shall not have sustained since the date of the latest financial statements included in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Registration Statement and Prospectus and since the respective dates as of which information is given in the Registration Statement and Prospectus, there shall not have been any change in the long- term debt of the Company, the MHC or the Bank other than debt incurred in relation to the purchase of Shares by the Bank's Eligible Plans, or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company or the Bank, otherwise than as set forth or 31 contemplated in the Registration Statement and Prospectus, the effect of which, in any such case described above, is in the Agent's reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Subscription Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus. (k) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the OTS approving the MHC Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission declaring the Registration Statement effective; (iii) certificate of good standing from the OTS evidencing the good standing of the Company; (iv) a certificate from the FDIC evidencing the Bank's insurance of accounts; (v) a certificate of the FHLB-Dallas evidencing the Bank's membership thereof; (vi) a certificate from the OTS evidencing the Company's and the MHC's standing as registered savings and loan holding companies; (vii) a copy of the Bank's federal stock charter; and (viii) a copy of the Company's federal charter; and (viii) a copy of the MHC's federal charter. (l) Subsequent to the date hereof, there shall not have occurred any of the following: (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange or in the over-the-counter market, or quotations halted generally on the Nasdaq, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the NASD or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, federal savings institutions or a general moratorium on the withdrawal of deposits from commercial banks or federal savings institutions declared by federal authorities; (iii) the engagement by the United States in hostilities which<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>eatened against the Company, the MHC or the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the business, operations, financial condition or income of the Company, the MHC and the Bank taken as a whole; and (v) the Shares have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company, the MHC and the Bank. (g) Concurrently with the execution of this Agreement, the Agent shall receive a letter from The Accounting & Consulting Group L.L.P. dated as of the date of the Prospectus and addressed to the Agent: (i) confirming that The Accounting & Consulting Group L.L.P. is a firm of independent public accounts within the meaning of Rule 101 of the Code of Professional Ethics of the American Institute of Certified Public Accountants and applicable regulations of the OTS and stating in effect that in its opinion the consolidated financial statements, schedules and related notes of the Bank as of September 30, 1999 and 1998 and for each of the three years in the period ended September 30, 1998, as are included in the Prospectus and covered by their opinion included therein, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the OTS and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a reading of the latest available unaudited interim consolidated financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Board of Directors and members of the Bank and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the unaudited financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the OTS and generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (b) during the period from the date of the latest unaudited consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in borrowings, other than normal deposit fluctuations, by the Bank; or (c) there was any decrease in the consolidated net assets of the Bank at the date of such letter as compared with amounts 30 shown in the latest unaudited consolidated statement of condition included in the Prospectus; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (f), they have compared with the general accounting records of the Bank, which are subject to the internal controls of the Bank, the accounting system and other data prepared by the Bank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have reported on the results of such comparisons. (h) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by The Accounting & Consulting Group L.L.P. in the letter delivered by it pursuant to subsection (f) of this Section 7, the "specified date" referred to in clause (ii) of subsection (f) thereof to be a date specified in such letter, which shall not be more than three business days prior to the Closing Date. (i) At the Closing Date, the Agent shall receive a letter from RP Financial LC, dated the date thereof and addressed to counsel for the Agent (i) confirming that said firm is independent of the Company,<|eot_id|>
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tries. Such financing statements may indicate the SFJ Collateral as substantially the same as the SFJ Collateral described in Section 7.1 or words of similar effect, or as being of an equal or lesser scope, or with greater detail, all in SFJ's reasonable discretion. 7.4 Subordination to SVB Loan. On or before the Initial Funding Date, PB shall negotiate in good faith and enter into a subordination agreement with SVB and SFJ reflecting in all material respects the terms described on Exhibit P attached hereto, pursuant to which SFJ will subordinate to SVB all PB Obligations and all Liens in the SFJ Collateral in favor of SFJ of indebtedness of PB to SVB, which agreement shall (a) limit the aggregate principal amount of indebtedness of PB to SVB that will be senior to SFJ at [***], (b) include a provision pursuant to which in certain circumstances SFJ shall be entitled in its discretion to purchase or repay all obligations (other than contingent indemnity obligations) owing by PB to SVB arising under or in connection with the SVB Loan Agreement in exchange for a release of SVB's Liens on PB's assets, (c) include an obligation on the part of SFJ to, in connection with any refinancing or Source: PHASEBIO PHARMACEUTICALS INC, 10-K, 3/30/2020 replacement of the SVB Loan Agreement, enter into a new subordination agreement with a new lender(s) on terms and conditions that are taken as a whole not less favorable in any material respect to SFJ than those set forth in the subordination agreement to be entered into with SVB, and (d) otherwise be in form and substance reasonably satisfactory to SFJ. Upon the execution of such new subordination agreement with such new lender(s), references herein to "SVB" shall refer to such new lender(s), references herein to the "SVB Loan" shall refer to the loans provided by such new lender (provided that the aggregate principal amount of such loans shall not exceed [***]), references herein to the "SVB Collateral" shall refer to the collateral securing such new loan, and references herein to the "SVB Loan Agreement" shall refer to such loan and security agreement or similar document entered into with such new lender(s). 7.5 Negative Covenants. 7.5.1 Incurrence of Certain Indebtedness. PB shall not, without SFJ's prior written consent, create, incur, assume, or be liable for any Indebtedness, or permit any subsidiary of PB to do so, other than Permitted Indebtedness. 7.5.2 Subordinated Debt. PB shall not (a) make or permit any payment on any Subordinated Debt, except to the extent permitted by the terms of the subordination, intercreditor, or other similar agreement to which such Subordinated Debt is subject, or (b) amend any provision in any document relating to Subordinated Debt which would provide for earlier or greater principal, interest, or other cash payments thereon, or materially adversely affect the subordination thereof to PB Obligations owed to SFJ. 7.5.3 Encumbrances. PB shall not, without SFJ's prior written consent: 7.5.3.1 create, incur, allow, or suffer any Lien on any of the PB Intellectual Property, or assign or convey any right to receive income with respect to the PB Intellectual Property (other than royalty and other license fee obligations to licensors thereof in accordance with the applicable license agreement), including the sale of any PB Intellectual Property, or permit any of its subsidiaries to do so, other than Liens in favor of SVB (subject in all respects to the terms and conditions of the subordination agreement contemplated by Section 7.4 hereof) and other Permitted Liens that are permitted pursuant to the terms of this Agreement; or 7.5.3.2 except as and to the extent permitted by Section 7.5.6, enter into any agreement, document, instrument or other arrangement (except with or in favor of SFJ or SVB) with any Person which directly or indirectly prohibits or has the effect of prohibiting PB or any subsidiary of PB from assigning, mortgaging, pledging, granting a security interest in or upon or encumbering any proceeds from PB Intellectual Property. 7.5.4 Distributions; Investments. PB shall not, without SFJ's prior written consent, (a) pay any dividends or make any distribution or payment on account of or redeem, retire or purchase any capital stock, provided that (i) PB may convert any of its equity convertible securities into other equity securities (or cash for partial shares) pursuant to the terms of such equity convertible securities or otherwise in exchange thereof, (ii) PB may pay dividends Source: PHASEBIO PHARMACEUTICALS INC, 10-K, 3/30/2020 solely in common stock, and (iii) PB may repurchase the stock of former employees or consultants pursuant to stock repurchase agreements, provided that the aggregate amount of all such repurchases does not exceed [***] Dollars ($[***]) per fiscal year; or (b) directly or indirectly make any Prohibited Investment (including, without limitation, by the formation of or through any subsidiary), or permit any of its subsidiaries to do so. For the avoidance of doubt, nothing in this Section 7.5.4 shall limit the ability of PB to pay or settle on conversion (in cash or equity) any convertible indebtedness. 7.5.5 Licensing Transactions. PB shall have the right, without SFJ's consent, to enter into any Excluded Licensing Transaction. PB shall not, without SFJ's prior written consent, enter into a Licensing Transaction unless such Licensing Transaction is an Excluded Licensing Transaction (in which case such prohibition shall not apply and no such consent of SFJ shall be required); provided that SFJ shall only be entitled to withhold such consent as to a Licensing Transaction other than an Excluded Licensing Transaction in the event SFJ reasonably determines, and provides PB with written notice of its determination within [***] of PB providing to SFJ a non-binding term sheet or comparable document summarizing the material terms of the proposed Licensing Transaction [***], that PB entering into such Licensing Transaction would [***] ("Material Impact"). If PB disagrees with SFJ's determination, the matter shall be submitted to arbitration before a single neutral arbitrator under the American Arbitration Association's (AAA's) expedited arbitration rules, which arbitrator shall be mutually agreeable to both Parties and have significant expertise on the subject matter to be decided (provided that if the Parties have not mutually agreed on such arbitrator within [***] after the applicable demand for arbitration, the AAA shall designate such arbitrator), such arbitration to be concluded and the arbitrator's award to be rendered within [***] of the applicable demand for arbitration. The sole issue to be decided in the arbitration shall be whether the entry into such Licensing Transaction by PB would have a substantial likelihood of having a Material Impact. In the event the arbitrator agrees with SFJ, PB shall not be entitled to enter into such Licensing Transaction. In the event the arbitrator agrees with PB, PB shall be entitled to enter into the Licensing Transaction; [***], and, [***]. 7.5.6 Sales of Royalty Streams. PB shall not sell, transfer or assign, directly or indirectly, in whole or in part, any rights to receive payments of royalties or license fees with respect to the Product or the PB Intellectual Property (including any Accounts with respect to such royalties or license fees), other than to a wholly owned direct or indirect subsidiary of PB (it being understood that the foregoing shall not restrict the creation of any Permitted Lien). 7.5.7 Further Negative Pledges. PB shall not, from and after the Effective Date, enter into any agreement that prohibits or limits the ability of PB to create, incur, assume or suffer<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>at such security interest shall attach immediately at such time as such Applicable Law Source: PHASEBIO PHARMACEUTICALS INC, 10-K, 3/30/2020 is not effective or applicable, or such prohibition, breach, default or termination is no longer applicable or is waived, and to the extent severable, shall attach immediately to any portion of the SFJ Collateral that does not result in such consequences or (2) any of PB's rights, title or interest in any of the outstanding voting capital stock or other ownership interests of a CFC in excess of 65% of the voting power of all classes of capital stock or other ownership interests of CFC entitled to vote. This Agreement shall create a continuing security interest in the SFJ Collateral which shall remain in effect until all PB Obligations (other than contingent indemnity obligations) have been paid or otherwise satisfied in full in accordance with this Agreement and/or, if applicable, the Program Transfer Agreement. Upon payment or other satisfaction of all PB Obligations (other than contingent obligation), SFJ shall, at the sole cost and expense of PB, release its Liens in the SFJ Collateral and all rights therein shall revert to PB. 7.2 Priority of Security Interest. PB represents, warrants and covenants that, subject to fulfilment of PB's obligations under Section 7.4 and SFJ making any filings necessary to achieve such perfection, the security interest granted to SFJ pursuant to this ARTICLE 7 (the "SFJ Security Interest") on the Initial Funding Date shall be and shall at all times thereafter continue to be a first- priority perfected security interest in the SFJ Collateral (subject only to the lien of SVB arising under the SVB Loan Agreement, subject in all respects to the terms and conditions of the subordination agreement contemplated by Section 7.4 hereof, and other Permitted Liens that are permitted pursuant to the terms of this Agreement). 7.3 Authorization to File Financing Statements. PB hereby authorizes SFJ to file, on or at any time from time to time after PB's receipt of the Initial Development Cost Payment on the Initial Funding Date, and PB shall execute and deliver to SFJ (as applicable), financing statements, amendments to financing statements, continuation financing statements, termination statements, security agreements relating to the SFJ Collateral constituting intellectual property, fixture filings (if applicable), notices and other documents and instruments, in form satisfactory to SFJ as SFJ may reasonably request, to perfect and continue perfected, maintain the priority of or provide notice of SFJ's security interest in the SFJ Collateral and to accomplish the purpose of this Agreement, without notice to PB, with all appropriate jurisdictions located within the United States and the Designated European Coun<|eot_id|>
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ping dates will be assigned by Cisco as close as practicable to the Distributor's requested date based on Cisco's then-current lead times for the Products. Cisco will communicate scheduled shipping dates in the order acknowledgement or on Cisco.com. Cisco will ship Product in compliance with Distributor Freight Policy set forth in Exhibit D. If no guidance is contained on Exhibit D for any particular shipment, Cisco shall select the carrier. 5.2 For shipments to the United States, shipping terms are [*****], which shall appear on Cisco's order acknowledgement or be accessible via Cisco.com. Title and risk of loss shall pass from Cisco to Distributor [*****]. For orders placed and/or shipments to destinations outside of the United States but within the Territory ("International Orders"), Distributor may need to contract with, and/or order from, a Cisco affiliate. Different shipping terms may apply to International Orders, as Cisco shall specify at the time and as shall be recorded in Distributor's agreement with such Cisco affiliate or otherwise set out on Cisco.com. 5.3 CISCO SHALL NOT BE LIABLE FOR LOSS, DAMAGE OR PENALTY FOR DELAY IN DELIVERY OR FOR FAILURE TO GIVE NOTICE OF ANY DELAY. EXCEPT IN ACCORDANCE WITH THE APPLICABLE DELIVERY TERMS SET FORTH IN THIS AGREEMENT, CISCO SHALL NOT HAVE ANY Source: SCANSOURCE, INC., 10-K, 8/22/2019 Exhibit 10.38 LIABILITY IN CONNECTION WITH SHIPMENT, NOR SHALL THE CARRIER BE DEEMED TO BE AN AGENT OF CISCO. 6.0 PAYMENT. 6.1 Prices for Products shall be those specified in Cisco's then-current Global or Value Added Distributor Price List. [*****] As provided in sub- section 3.2, in its discretion, Cisco may choose to make products or services which are on the Global Price List but not on the Value Added Distributor Price List available to Distributor. The prices for such products or services will be provided by Cisco to Distributor at the time Cisco makes such products available. 6.2 Upon and subject to credit approval by Cisco, payment terms shall be [*****] days from shipping date. All payments shall be made in the currency in which the Price List is quoted for the applicable Purchase Order [*****]. 6.3 The purchase price does not include any federal, state or local taxes, or sales, use, excise, ad <|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|> for redistribution, from Cisco under this Agreement. Distributor hereby guarantees the performance by such Affiliates of the financial and other contractual obligations set forth in this Agreement and represents and warrants that it is empowered to enter into this Agreement on behalf of such Affiliates, and to bind (and does so bind) such Affiliates to the terms and conditions of this Agreement. Cisco may require certain of the listed Affiliates to execute an agreement with Cisco or an affiliate of Cisco such that the legal relationship shall be between Cisco or Cisco's affiliate and Distributor's Affiliate. Any breach by Distributor or by an Affiliate of (i) this Agreement, or (ii) any other agreement between Cisco and Distributor or an Affiliate of either party, shall entitle Cisco to terminate this Agreement and/or any such agreement with Affiliate and/or any other Affiliate pursuant to Section 18. The limit of liability set forth in this Agreement shall be deemed an aggregate limit of liability, not per Affiliate, regardless of whether an Affiliate or Affiliates has executed a separate agreement with Cisco or a Cisco Affiliate permitting such Affiliate to purchase under the terms of this Agreement. In addition, any reporting requirements hereunder shall be performed solely by Distributor. All reporting information related to Distributor or any Affiliate(s) shall be aggregated and submitted as part of a single report, as required herein. 3.0 APPOINTMENT OF DISTRIBUTOR. 3.1 By this Agreement, Cisco makes, and Distributor accepts, the appointment of Distributor as an authorized, non-exclusive distributor of Products and Services to Resellers located in the Territory. Distributor agrees to use its best efforts to distribute Product solely to Resellers located in the Territory. Those Resellers may resell Product only to End Users who intend to use the Product in the Territory. All Resellers to which Distributor distributes Product must meet Cisco's then-current guidelines for Resellers, as amended from time to time. 3.2 Distributor is authorized to resell only those Products and Services which are listed on the Value Added Distributor Price List. Notwithstanding the foregoing, Cisco may, in its discretion, make available for purchase and resale by Distributor, but not for stocking by Distributor, certain other products and/or services which are listed on the Global Price List. Upon such products or services being made available to Distributor, such products and services will be deemed to be Products and Services as defined herein. 3.3 Products Requirements. For new Products or Services added to the Global or Value Added Distributor Price List, including products or services which become available to Cisco as a result of an acquisition by Cisco of another entity, Cisco may impose certification, installation, or training requirements on Distributor prior to allowing Distributor to purchase, resell, or provide support for such Products or Services. 3.4 Distributor agrees not to solicit orders for Products or Services, or to engage salespeople or establish warehouses or other distribution centers for the redistribution of Products or Services, outside the Territory, except to the extent advertising is placed in a particular advertising medium (except catalogs) which is distributed both inside and outside of the Territory. Source: SCANSOURCE, INC., 10-K, 8/22/2019 Exhibit 10.38 3.5 Unauthorized Cisco Products. Distributor acknowledges that the purchase and Resale of Non-Genuine or Unauthorized Cisco Products are not within the scope of this Agreement and Integrator is not entitled to the rights granted herein with respect to the resale of such Non-Genuine or Unauthorized Cisco Products. For all Unauthorized Cisco Products, Cisco reserves the right to withhold any warranty or Cisco Support on such products, unless such products pass a Cisco equipment inspection and Cisco receives payment for the applicable equipment inspection and/or software license fees, as required in the then​ current Software Transfer and Licensing Policy. A printed copy of the Software Transfe and Licensing Policy, in effect on the Effective Date of this Agreement and available at http://www.cisco.com/warp/public/csc/refurb_equipment/swpolicy.html, shall accompany this agreement. This policy is subject to change without notice. If Cisco determines that Reseller has Resold and/or redistributed Unauthorized Cisco Products purchased from Unauthorized Sources, then Cisco may, at Cisco's sole discretion: (a) audit Reseller's purchase and resale records of Cisco Product and relevant records pursuant to Section 17.0 (Reports and Records) and/or (b) invoice Reseller for all reasonable costs incurred by Cisco in its performance of the Audit and/or (c) suspend all Product shipments to Reseller. 4.0 ORDERS. 4.1 Upon and subject to credit approval by Cisco at the time of Cisco's receipt of any Purchase Order, Distributor shall purchase or license Products or Services by issuing a Purchase Order, signed, if requested by Cisco, or (in the case of electronic transmission) sent by its authorized representative, indicating specific Products and Services, Cisco Product numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable and contract reference, if any. No contingency contained on any Purchase Order shall be binding upon Cisco. The terms of this Agreement shall apply, regardless of any additional or conflicting terms on any Purchase Order or other correspondence or documentation submitted by Distributor to Cisco, and any such additional or conflicting terms are deemed rejected by Cisco. 4.2 Cisco shall use commercially reasonable efforts to provide order acknowledgement information within [*****] business days for all Purchase Orders placed on Cisco.com or within [*****] business days of Purchase Orders faxed or hand delivered to Cisco. Cisco Customer Service will review and accept or decline all Purchase Orders for the Cisco entity that will supply the Products or Services, and no other person is authorized to accept Purchase Orders on behalf of Cisco. Cisco Customer Service may accept a Purchase Order even if some of the information required by Section 4.1 above is missing or incomplete. In relation to Services, Cisco will confirm acceptance of a Purchase Order for Services by issuing a list of Products covered by such Services (the "Equipment List"). 4.3 Distributor may defer Product shipment for up to [*****] from the original shipping date scheduled by Cisco, provided written or electronic notice (issued, in either case, by an authorized representative of Distributor) is received by Cisco at least [*****] days before the originally scheduled shipping date. Cancelled Purchase Orders, rescheduled shipments or Product configuration changes requested by Distributor less than [*****] days before the original scheduled shipping date shall be subject to (a) acceptance by Cisco, and (b) a charge of [*****] of the total invoice amount relating to the affected Products. Cisco reserves the right to reschedule shipment in cases of configuration changes requested by Distributor within [*****] days of scheduled shipment. No cancellation shall be accepted by Cisco where Products are purchased with implementation Services, including design, customization or installation Services, except as may be set forth in the agreement or Statement of Work under which the Services are to be rendered. 5.0 SHIPPING AND DELIVERY 5.1 Scheduled ship<|eot_id|>
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appropriately · A user can create a new account and login using an existing account · A user can upload a video, vote for a video, comment on a video, share a video, report a video, follow another user, follow a campaign, and set up their user profile · An admin user can login to the Admin Module, create campaigns, delete comments, delete videos, export user information and monitor key metrics Upon Acceptance approval by Licensee per Section 13, VOTOCAST will assist in publishing the Mobile Apps on the AppStore and on GooglePlay. 10 Source: VITALIBIS, INC., 8-K, 3/16/2018 EXHIBIT C SERVICE LEVELS VOTOCAST shall provide support to Licensee, in English, through e-mail (support@VOTOCAST.com), five (5) days a week, eight hours a day (9:00 to 5:00 PST). Monday to Friday, excluding federal and banking holidays. Licensee shall be solely responsible for support to Licensee Users. Licensee agrees that VOTOCAST is responsible only for providing the Services, and is not responsible for providing any services or performing any tasks not specifically set forth in Exhibit A. unless such services or tasks are mutually agreed upon in writing by authorized representatives of the Parties. Severity Response Time Severity 1 Every Two Hours (24x7) Severity 2 Every 8 Hours (9AM-5PM PST) Severity 3 Every 48 Hours (9A1V1-5PM PST) Severity 4 Every 72 Hours (9AM-5PM PST) "Response Time" means the time beginning when Licensee informs VOTOCAST of a Support incident and ending when the Support incident is either resolved or a reasonable fix is implemented. Support Incident Severity Definitions and Responses: Classifications. By mutual agreement (following the definitions noted here below), Support incidents will be classified by type as a Severity I, 2, 3 or 4. Severity 1 Definition - Critical business impact, including Licensee being unable to use one or more of the features resulting in a critical impact on operations. This condition requires immediate resolution. Severity 1 Condition - Issue has a critical business impact and / or a crippling effect on the Licensee's business. Examples include the following: · The production system is down · Critical features are unusable · Data is not accessible · Company has repeated production outages that are disrupting the success of their business NOTE: A critical situation does not automatically imply Severity 1. The associated problem's business impact sets the Severity. Severity 2 Definition — To the extent not a Severity 1, significant business impact, including when one of the critical features is usable but is severely limited. Severity 2 Conditions. Examples include the following: · Non-production system data is inaccessible · Degraded performance having serious negative impact on business · A database/application error has occurred, severely hampering business operability Severity 3 Definition — To the extent not a Severity I or a Severity 2, some business impact, including when one of the critical features is usable but with less significant features (e.g., not critical to operations) being unavailable. 11 Source: VITALIBIS, INC., 8-K, 3/16/2018 Severity 3 Conditions. Examples include the following: · Aesthetic formatting inconsistencies · Degraded performance such as unusually slow application response causing user dissatisfaction and reported complaints · Acceptable (by Licensee) workarounds available for incidents initially classified as Severity I or Severity 2 Severity 4 Definition — To the extent not a Severity I, Severity 2 or Se<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>racking and validation purposes, the Total Number of Video Views will be shown within the Admin Database as a cumulative metric. 3. Scone of Services: - Branded iOS Mobile App - Branded Android Mobile App - Application APIs - Application SDKs - Admin Database Unless specifically noted othenwise, the scope of all services provided by VOTOCAST is limited to the usage and ongoing support of the Services only, and does not include analysis, operation, integration, development, additional training or modification of other custom or OEM packaged software applications, hardware or systems. Such services can be requested by Licensee and negotiated under a separate SOW. PRICES ARE STRICTLY CONFIDENTIAL. NO PART OF THIS DOCUMENT, ESPECIALLY PRICING INFORMATION, MAY BE DISCLOSED IN ANY MANNER TO A THIRD PARTY WITHOUT THE PRIOR WRITTEN CONSENT OF VOTOCAST. 9 Source: VITALIBIS, INC., 8-K, 3/16/2018 EXHIBIT B ACCEPTANCE CRITERIA Acceptance criteria shall be as follows: · Licensee Content was applied to the Mobile Apps<|eot_id|>
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uch infringement would not have occurred using the Software by itself or (iv) Corio's copying, distribution or use of the Software after receiving Changepoint's written notice to Corio of a third party claim of infringement applicable to the Software. 8.3 BY CORIO. Corio shall indemnify, defend and hold harmless Changepoint and its affiliated companies from any and all damages, liabilities, costs and expenses (including reasonable attorneys' fees) awarded by a court against Changepoint and its affiliated companies, and from settlements approved in writing by Corio, for infringement of any patent, copyright, trademark or trade right secret of a third party arising out (i) use of the Software by Corio other than as set forth in the Documentation or as authorized by this Agreement; (ii) modification of the Software by Corio except as authorized by Changepoint or by this Agreement, when such infringement would not have occurred but for such unauthorized modification, (iii) Corio's copying, distribution or use of the Software after receiving Changepoint's written notice to Corio of a third party claim of infringement applicable to the Software, or (iv) a combination of the Software with other hardware or software product or service, if such infringement would not have occurred using the Software alone. Corio's obligation to indemnify Changepoint is subject to Changepoint providing Corio with prompt written notice of any such claim and promptly tendering the control and the defense and settlement of any such claim to Corio at Corio's expense and with Corio's choice of counsel. Nothing in this provision shall limit Corio's immediate duty to defend Changepoint against any such claims. Changepoint shall cooperate with Corio, at Corio's expense, in defending or settling any such claims and Changepoint may join in defense with counsel of its choice at its own expense. 9 LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 2.7, 8, 10 AND 12.3 OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CORIO HEREUNDER FOR THE TRANSACTION WHICH THE LIABILITY RELATES TO DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE CAUSE OF 13 ACTION FIRST ARISING, EVEN IF IT IS A CONTINUOUS ONE, OR IN THE AGGREGATE, WITH RESPECT OF ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE TOTAL AMOUNT ACTUALLY PAID BY CORIO UNDER THIS AGREEMENT TO CHANGEPOINT. EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 2.7, 8, 10 AND 12.3 OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, INCIDENTIAL, SPECIAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PARTIES AGREE THAT THIS SECTION 9 REPRESENTS A REASONABLE ALLOCATION OF RISK. 10 CONFIDENTIALITY. Each party hereby agrees that it shall not use any Confidential Information received from the other party other than as expressly permitted under the terms of the non-disclosure agreement in effect between the parties dated October 29, 1999, which is incorporated herein by reference and made a part hereof. For purposes of this Agreement, "Confidential Information" means the definition given to that term in such non-disclosure agreement. The parties agree that Changepoint's Software and Documentation (except that Documentation which this Agreement contemplates will be provided to Customers) shall be deemed Confidential Information subject to that non-disclosure agreement. The terms and conditions of this Agreement shall also be deemed Confidential Information subject to that non-disclosure agreement, but the terms of this Agreement may be disclosed by a party in connection with a significant transaction involving the merger or sale of all or a substantial part of the assets of the receiving party. Further, each party represents and warrants that their respective employees, agents, contractors or consultants that will be provided the other party's confidential information have or will have signed agreements with customary terms containing confidentiality provisions and assignment of inventions ("EMPLOYEE NDA/INVENTION AGREEMENT"). Each party covenants that during the term of this Agreement, it will continue to require all of such employees, agents, contractors or consultants to sign an Employee NDA/Invention Agreement. 11 TERM AND TERMINATION. 11.1 TERM. The term of this Agreement shall commence on the Effective Date and, subject to the provisions of this Agreement, shall continue in full force and effect for an initial period of five (5) years. Thereafter, this Agreement shall automatically renew for subsequent one (1) year periods unless either party provides the other party with written notification at least thirty (30) days prior to the expiration of the initial five (5) year term or any one (1) year renewal thereof of its intention to terminate this Agreement. 11.2 TERMINATION. If either party breaches any material term or condition of this Agreement and fails to cure such breach within sixty (60) days after receiving written notice of the breach, the nonbreaching party may terminate this Agreement on written notice at any time following the end of such sixty (60) day period. Notwithstanding the foregoing, Corio shall have thirty (30) calendar days after receipt of written notice from Changepoint to cure any nonpayment. Compliance by the Software with the Software's Documentation after expiration of the Warranty Period shall be deemed a material condition of this Agreement. To the extent permitted by applicable law, either party may terminate this Agreement by 14 notice in writing to the other party in the event that (i) a receiver, trustee, liquidator, administrator or administrative receiver should be appointed for either party or its property, (ii) either party should become insolvent or unable to pay its debts as they mature or cease to pay its debts as they mature in the ordinary course of business, or makes an assignment for the benefit of creditors or makes a proposal to its creditors or files a notice of intention to do so, (iii) any proceedings should be commenced against either party under any bankruptcy, insolvency or debtor's relief law, and such proceedings are not vacated or set aside within fifteen (15) days from the date of commencement thereof, or (iv) either party is liquidated or dissolved (except as part of an assignment permitted under Section 14.1 of this Agreement). 11.3 EFFECT OF TERMINATION OR EXPIRATION. The following Sections shall survive the termination or expiration of this Agreement according to the provisions of this Section 11.3: 2.1, 2,2, 2.3, 4.2, 4,5, 4.6, 4.7, 5.3, 7, 8, 9, 10, 12, 14 and Exh<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>r settling such claims and Corio or its Customer may join in defense with counsel of its choice at its own expense. If the Software is, or in the opinion of Changepoint may become, the subject of any claim of infringement or if it is adjudicatively determined that the Software infringes, then Changepoint may, at its sole option and expense, either (i) procure for Corio the right from such third party to use the Software, (ii) replace or modify the Software with other suitable and substantially equivalent products so that the Software becomes noninfringing, or if (i) and (ii) are not practicable after Changepoint has exhausted all reasonable efforts, (iii) terminate this Agreement. 8.2 LIMITATIONS. Changepoint shall have no liability for any infringement based on (i) the use of the Software other than as set forth in the Documentation; (ii) the modification of the Software by a party other than Changepoint, when such infringement would not have occurred but for such modification, (iii) the combination of the Software with any other hardware or software product or service when s<|eot_id|>
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plated herein have been duly authorized by all necessary -18- corporate action of the Company and the Association, and, to the best knowledge of such counsel, will not constitute a material breach of, or default under, or result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Company or the Association which are material to their business considered as one enterprise, pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Association is a party or by which any of them may be bound, or to which any of the property or assets of the Company or the Association is subject. In addition, such action will not result in any contravention of the provisions of the certificate of incorporation or bylaws of the Company or the Association or any applicable law, act, regulation or order or court order, writ, injunction or decree. The charter of the Association in stock form has been approved by the OTS. (xix) To the best knowledge of such counsel, the Company and the Association have good and marketable title to all properties and assets described in the Registration Statement as owned by them, free and clear of all liens, charges, encumbrances or restrictions, except such as are described in the Registration Statement or are not material in relation to the business of the Company and the Association considered as one enterprise; and to the best of such counsel's knowledge, all of the leases and subleases material to the business of the Company and the Association under which the Company and the Association hold properties, as described in the Registration Statement, are in full force and effect. (xx) The Company and the Association are not in violation of any directive from the OTS or the FDIC to make any material change in the method of conducting their business and the Company and the Association have conducted and are conducting their business so as to comply in all material respects with all applicable statutes and regulations (including, without limitation, regulations, decisions, directives and orders of the OTS and the FDIC). (xxi) The information in the Registration Statement and Offering Prospectus under the captions "Regulation," "Certain Restrictions on Acquisitions of the Company," "The Conversion," "Description of Capital Stock" and the information in response to Items 7(d)(l), 7(f), 7(g) and 7(i) of the Form PS of the Conversion Regulations, to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects (except as to the financial statements and other financial data included therein as to which such counsel need express no opinion). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion satisfactory to Capital Resources, upon the opinion of other counsel of good standing (providing that such counsel states that Capital Resources is justified in relying upon such specified opinion or opinions), and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and the Association and public officials (but not on conclusions of law which may be set forth in said certificates); provided copies of any such opinion(s) or certificates are delivered pursuant hereto or to Capital Resources together with the opinion to be rendered hereunder by special counsel to the Company and the Association. Such counsel may assume that any agreement is the valid and binding obligation of any parties to such agreement other than the Company or the Association. (2) The letter of Malizia, Spidi, Sloane & Fisch, P.C., counsel for the Company and the Association addressed to Capital Resources, dated the Closing Date, in form and substance to the effect that: -19- During the preparation of the Conversion Application, the Registration Statement and the Offering Prospectus, such counsel participated in conferences with management of, and the independent public accountants for the Company and the Association. Based upon such conferences and a review of corporate records of the Company and the Association as such counsel conducted in connection with the preparation of the Registration Statement and Conversion Application, nothing has come to their attention that would lead them to believe that the Conversion Application, the Registration Statement, the Offering Prospectus, or any amendment or supplement thereto (other than the financial statements and other financial and statistical data and stock valuation information included therein, as to which such counsel need express no view), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (3) The favorable opinion, dated as of the Closing Date, of Serchuk & Zelermyer, LLP, Capital Resources' counsel, with respect to such matters as Capital Resources may reasonably require. Such opinion may rely upon the opinions of counsel to the Company and the Association, and as to matters of fact, upon certificates of officers and directors of the Company and the Association delivered pursuant hereto or as such counsel shall reasonably request. (d) At the Closing Date, counsel to Capital Resources shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to render the opinion as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained. (e) At the Closing Date, Capital Resources shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of the Company and of the Chief Executive Officer and Chief Financial Officer of the Association, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Offering Prospectus and, in their opinion, at the time the Offering Prospectus became authorized for final use, the Offering Prospectus did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Offering Prospectus became authorized for final use, in their opinion no event has occurred which should have been set forth in an amendment or supplement to the Offering Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business prospects or business affairs of the Company or the Association, and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement and the Offering Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business affairs or business prospects of the Company or the Association, independently, or of the Comp<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>by which it or its property may be bound which contravention would be material to the business of the Company and the Association considered as one enterprise; the execution and delivery of this Agreement by the Company and the Association, the incurring of the obligations herein set forth and the consummation of the transactions contem<|eot_id|>
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lan Template Schedule 3.2 (d): Form of Reconciliation Statement Schedule 3.3(c): Income Statement Definitions and Allocation Methods Schedule 4.2 (a): Steering Committee Schedule 6.11(a): Additional Roundup Products Schedule 6.11(f): Additional Roundup Products Trademarks iv SECOND AMENDED AND RESTATED EXCLUSIVE AGENCY AND MARKETING AGREEMENT THIS SECOND AMENDED AND RESTATED EXCLUSIVE AGENCY AND MARKETING AGREEMENT by and between Monsanto Company, a Delaware corporation ("Monsanto"), and The Scotts Company LLC, an Ohio limited liability company (f/k/a The Scotts Company, an Ohio corporation) (the "Agent"), is entered into on August 31, 2017 (the "Execution Date"), and shall amend and restate and supersede in its entirety the Amended and Restated Exclusive Agency Marketing Agreement and all other agreements to the extent addressed by or incorporated into this Agreement, dated as of September 30, 1998, as amended and restated as of November 11, 1998, and as amended and/or restated from time to time (collectively, the "Original Agreement"), with respect to the countries and territories described in this Agreement. Other countries and territories included in the Original Agreement that, as of the Execution Date, will no longer be addressed in this Agreement will be addressed in a separate agreement, effective as of the Execution Date, with respect to such countries and territories by and between Monsanto and the purchaser of Agent's international business. Monsanto and the Agent are sometimes referred to herein as the "parties." WITNESSETH: WHEREAS, Monsanto is engaged in the research, development, and commercialization of certain agricultural products; WHEREAS, Monsanto has developed and sells Roundup Products (as defined below) and is the exclusive owner of all rights, patents, licenses, and trademarks associated therewith, and possesses the knowledge, know-how, technical information, and expertise regarding the process and manufacture of Roundup Products; WHEREAS, the Agent has certain expertise in the promotion, distribution, marketing, and sale of home and garden products; WHEREAS, Monsanto does not currently possess, nor desire to establish, a distribution system for Roundup Products; WHEREAS, the Agent's distribution system is well-suited for the promotion, distribution, marketing, and sale of Roundup Products; WHEREAS, Monsanto desires that the Agent serve as Monsanto's exclusive agent for the marketing and distribution of Roundup Products, and the Agent desires to so serve, all on the terms set forth in this Agreement; and 1 NOW, THEREFORE, in consideration of the foregoing, the terms and provisions contained herein, and other good and valuable consideration, the rec<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>Exhibit 10.14(a) SECOND AMENDED AND RESTATED EXCLUSIVE AGENCY AND MARKETING AGREEMENT by and between MONSANTO COMPANY and THE SCOTTS COMPANY LLC Effective as of September 30, 1998 TABLE OF CONTENTS Article 1 - DEFINITIONS AND RULES OF CONSTRUCTION 1 Section 1.1 Definitions 1 Section 1.2 Rules of Construction and Interpretation 9 Article 2 - EXCLUSIVE AGENCY AND DISTRIBUTORSHIP 9 Section 2.1 Appointment of the Exclusive Agent 9 Section 2.2 The Agent's Obligations and Standards 10 Section 2.3 Appointment of Sub-Agents and Sub-Distributors 13 Section 2.4 Limitations on Agent 13 Section 2.5 Changes to Markets 13 Section 2.6 Scotts Miracle-Gro Sale Procedures 15 Section 2.7 Compliance 15 Article 3 - ACCOUNTING AND CASH FLOW FOR THE ROUNDUP L&G BUSINESS 17 Section 3.1 Bookkeeping and Financial Reporting 17 Section 3.2 Ordering, Invoicing and Cash Flow Cycle 18 Section 3.3 Expenses and Allocation Rules 19 Section 3.4 Resolution of Disputes Arising under Article 3 20 Section 3.5 Fixed Contribution to Expenses 20 Section 3.6 Commission 20 Section 3.7 [Intentionally deleted] 21 Section 3.8 Additional Commission 21 Article 4 - ROUNDUP L&G BUSINESS MANAGEMENT STRUCTURE 23 Section 4.1 Underlying principles for the Roundup L&G Business Management Structure. 23 Section 4.2 Steering Committee 23 Section 4.3 Business Units 25 Section 4.4 Global Support Team 25 Article 5 - DUTIES AND OBLIGATIONS OF MONSANTO 26 Section 5.1 Monsanto's Obligations and Rights 26 Section 5.2 Warranties 27 Article 6 - REPORTS AND ADDITIONAL OBLIGATIONS OF THE PARTIES 27 Section 6.1 Cooperation 27 Section 6.2 Use of EDI 27 ii Section 6.3 The Agent's Systems and Reporting Obligation 27 Section 6.4 Employee Incentives 28 Section 6.5 Insurance 28 Section 6.6 Liens 28 Section 6.7 Promoting Safe Use-Practices 29 Section 6.8 Monsanto Inspection Rights 29 Section 6.9 Recalls 29 Section 6.10 New Roundup Products 29 Section 6.11 Additional Roundup Products 32 Section 6.12 Confidentiality 34 Section 6.13 Noncompetition 35 Section 6.14 Industrial Property 37 Section 6.15 Conflicts of Interest 38 Section 6.16 Records Retention 39 Section 6.17 Additional Covenant of the Agent 39 Section 6.18 Roundup Telephone Number 39 Section 6.19 Additional Obligations 39 Article 7 - [Reserved] 39 Article 8 - REPRESENTATIONS, WARRANTIES, AND COVENANTS 39 Section 8.1 The Agent's Representations and Warranties 39 Section 8.2 Monsanto's Representations and Warranties 40 Article 9 - INDEMNIFICATION 41 Section 9.1 Indemnification and Claims Procedures 41 Article 10 - TERMS, TERMINATION, AND FORCE MAJEURE 42 Section 10.1 Terms 42 Section 10.2 [Reserved] 42 Section 10.3 [Reserved] 42 Section 10.4 Termination by Monsanto 42 Section 10.5 Termination by the Agent 47 Section 10.6 Roundup Sale 50 Section 10.7 Effect of Termination 52 Section 10.8 Force Majeure 53 iii Section 10.9 [Intentionally deleted] 53 Article 11 - MISCELLANEOUS 53 Section 11.1 Relationship of the Parties 53 Section 11.2 Interpretation in accordance with GAAP 54 Section 11.3 Currency 54 Section 11.4 Monsanto Obligations 54 Section 11.5 Expenses 54 Section 11.6 Entire Agreement 54 Section 11.7 Modification and Waiver 55 Section 11.8 Assignment 55 Section 11.9 Notices 56 Section 11.10 Severability 57 Section 11.11 Equal Opportunity 57 Section 11.12 Governing Law 58 Section 11.13 Public Announcements 58 Section 11.14 Counterparts 59 LIST OF EXHIBITS Exhibit D: Permitted Products LIST OF SCHEDULES Schedule 1.1(a): Activated Included Markets Schedule 1.1(b): Roundup Products Schedule 2.2(a): Annual Business P<|eot_id|>
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d its other confidential and proprietary information, as well as Discloser's relationships with USA MCOs, suppliers, employees and others doing business with Discloser; that such relationships, trade secrets and other information are vital to the successful conduct of Discloser' business in the future; that Discloser, in the furtherance of its business, is providing Recipient with the opportunity and support necessary to them to establish personal and professional relationships with USA MCOs, suppliers, employees and others having business relationships with Discloser and is affording Recipient access to Discloser' trade secrets and other confidential and proprietary information; that because of the opportunities and support so provided to Recipient and because of Recipient's access to Discloser' confidential information and trade secrets, Recipient would be in a unique position to divert business from Discloser and to commit irreparable damage to Discloser were Recipient to be allowed to compete with Discloser or to commit any of the other acts prohibited by this Section 9 of the Agreement; that the enforcement of the restrictive covenants against Recipient would not impose any undue burden upon Recipient; that none of the restrictive covenants is unreasonable as to period or geographic area; and that the ability to enforce the restrictive covenants against Recipient is a material inducement to the decision of Discloser to consummate this Agreement D. Recipient hereby agrees that it will not make use of, disseminate, or in any way disclose any Confidential Information of Discloser to any person, firm, or business, except to the extent necessary for negotiations, discussions, and consultations with personnel and/or authorized representatives of Discloser, any purpose of Discloser authorized by this Agreement and any purpose Discloser may hereafter authorize in writing. Recipient hereby also agrees that it will use the Confidential Information disclosed by Recipient for informational purposes only. Recipient hereby further agrees that it shall not use the Confidential Information of Recipient in the production and/or the providing of any products and/or services now or in anytime in the future. E. Recipient agrees that it shall treat all Confidential Information of Recipient with the same degree of care as it accords to its own Confidential Information, and Recipient represents that it exercises reasonable care to protect its own Confidential Information. F. Recipient hereby agrees that it shall disclose Confidential Information of Discloser only to those of its officer(s), manager(s), and/or employee(s) who need to know such information and certifies that such officer(s), manager(s), and/or employee(s) have previously agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those of this Agreement. G. Recipient will immediately give notice to Recipient of any unauthorized use or disclosure of the Confidential Information. Recipient agrees to assist Recipient in remedying any such unauthorized use or disclosure of the Confidential Information. H. Upon the request of Discloser and/or termination of this Agreement, the Recipient will promptly return all confidential information furnished hereunder and all copies thereof. I. Remedies. In the event of a breach or a threatened breach of any of the Provisions and/or Covenants set forth in this Section 9 of the Agreement above (the ''Covenants''), Discloser will, in addition to the remedies provided by law, have: (a) the right and remedy to have the Covenants specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any material breach of any of the Covenants will cause irreparable injury to Discloser and that money damages will not provide an adequate remedy to Discloser; and (b) the right and remedy to require a person to account for and pay over to Discloser all compensation, profits, moneys, accruals, increments or other benefits (collectively the ''Benefits'') derived or received by Recipient as a result of any transactions constituting a breach of any of the Covenants, and Recipient hereby agrees to account for and pay over the Benefits to Discloser. J. The obligations of the parties set forth in this paragraph 9 of this Agreement shall survive the termination of this Agreement. 10. PUBLICITY The Parties agree that all publicity and public announcements concerning the formation and existence of this Agreement shall be jointly planned and coordinated by and among the Parties. Neither party shall disclose any of the specific terms of this Agreement to any third party without the prior written consent of the other party, which consent shall not be withheld unreasonably. Notwithstanding the foregoing, any party may disclose information concerning this Agreement as required by the rules, orders, regulations, subpoenas or directives of a court, government or governmental agency, after giving prior notice to the other party. 11. EFFECT OF TERMINATION Upon termination or expiration of this Agreement, all rights granted to the USA MCO and IMedicor shall forthwith revert to the granting party. 12. FORCE MAJEURE Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party's reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event. 13. NOTICES A. Any notice required to be given pursuant to this Agreement shall be in writing and mailed by certified or registered mail, return receipt requested or delivered by a national overnight express service. For IMedicor: Fred Zolla, CEO IMedicor, Inc. 523 Avalon Gardens Drive Nanuet, New York 10954 For the USA MCO: George Bogle, CEO / President USA MCO Solutions Corp, 916 South Capital of Texas Highway Austin, TX 78746 Either party may change the address or entity to which notice or payment is to be sent by written notice to the other party pursuant to the provisions of this paragraph. 14. JURISDICTION DISPUTES A. This Agreement shall be governed by the internal laws State of New York. B. All disputes hereunder shall be resolved in the applicable state or federal courts in County of Rockland in the State of New York. The parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available. 15. AGREEMENT BINDING ON SUCCESSORS This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, successors and assigns. 16. WAIVER No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement. 1<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>te any obligation or responsibility, express or implied, on behalf of, or in the name of, another Party or to bind another in any matter or thing whatsoever. 9. CONFIDENTIALITY A. "Confidential Information" as used in this Agreement shall mean any and all technical and non-technical information including but not limited to patent, copyright, trade secret, and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of IMedicor and its affiliates, and includes, without limitation, IMedicor and its affiliates information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, USA MCO lists, business forecasts, sales and merchandising, and marketing plans and information. "Confidential Information" also includes proprietary and/or confidential information of any third party that may disclose such information to USA MCO in the course of IMedicor' business. All Confidential Information disclosed both orally and in writing by the disclosing party ("Discloser") will be considered Confidential Information by the receiving party ("Recipient") and subject to terms of this Agreement, even if such information is not conspicuously designated as "Confidential" or even when provided orally and not identified as confidential at the time of disclosure. B. All Confidential Information disclosed both orally and in writing by either party will be considered Confidential Information by USA MCO and subject to terms of this Agreement, even if such information is not conspicuously designated as "Confidential" or even when provided orally and not identified as confidential at the time of disclosure. C. USA MCO acknowledges that Discloser has over many years devoted substantial time, effort and resources to developing Discloser's trade secrets an<|eot_id|>
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PROVISIONS......................66 23.F. INJUNCTIVE RELIEF..........................................66 23.G. APPLICABLE LAW...........................................67 23.H. ENTIRE STATUS OF AGREEMENT...............................67 23.I. AMENDMENT OF AGREEMENT...................................67 23.J. HEIRS, SUCCESSORS AND ASSIGNS............................67 23.K. CONDITIONS AND CONTINGENCIES.............................67 23.L. WAIVER BY PRETZEL TIME...................................68 23.M. COSTS AND EXPENSES OF ENFORCEMENT........................68 23.N. RIGHTS OF PARTIES ARE CUMULATIVE ........................69 23.O. WAIVER OF JURY TRIAL.....................................69 23.P. WAIVER OF PUNITIVE DAMAGES.................................69 23.Q. EXCLUSIVE JURISDICTION.....................................69 23.R. LIMITATIONS OF CLAIMS....................................69 24. ACKNOWLEDGMENTS AND REPRESENTATIONS...............................70 25. CONSTRUCTION......................................................70 25.A. HEADINGS.................................................70 25.B. TERMINOLOGY................................................70 25.C. COUNTERPARTS.............................................71 25.D. REASONABLENESS.............................................71 26. SECURITY AGREEMENT................................................70 26.A. SECURITY INTEREST........................................71 26.B. DEFAULT REMEDIES UNDER U.C.C...............................72 27. NOTICES...........................................................72 27.A. DELIVERY OF NOTICES......................................72 EXHIBITS FRANCHISE ACKNOWLEDGMENTS AND REPRESENTATIONS STATEMENT . . . . . . . . . . . . . . . . . . . . . . .. A PRINCIPAL OWNER, OTHER OWNERS, DESIGNATED PRINCIPAL OWNERS, UNIT AND MANAGER, SUPERVISING OWNERS AND INITIAL CAPITALIZATION . . . . . . . . . . . . . . . .. . . . B PERMITTED COMPETITIVE BUSINESSES, FORM DEVELOPMENT AGREEMENT (FOR SINGLE-UNIT FRANCHISES), IDENTITY OF DEVELOPER AND DATE OR DEVELOPMENT AGREEMENT . . . .C OWNER'S AND GUARANTOR'S UNDERTAKING AND ASSUMPTION OF OBLIGATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . D AUTHORIZATION AGREEMENT FOR PREARRANGED PAYMENTS (D<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>GS..............................48 18. TERMINATION OF AGREEMENT BY FRANCHISEE............................49 18.A. FRANCHISEE'S RIGHT TO TERMINATE............................49 19. DEFAULT AND TERMINATION...........................................50 19.A. EXACT AND COMPLETE PERFORMANCE REQUIRED....................50 19.B. DEFAULT AND RIGHT TO CURE................................50 19.C. EXTENSION OF NOTICE........................................50 19.D. REPEATED BREACHES..........................................50 19.E. EVENTS OF DEFAULT - 30 DAYS NOTICE - CURABLE DEFAULTS....51 19.F. EVENTS OF DEFAULT - IMMEDIATE TERMINATION - NO RIGHT TO CURE............................................53 20. RIGHTS AND OBLIGATIONS OF PRETZEL TIME AND FRANCHISEE UPON TERMINATION OR EXPIRATION OF THE FRANCHISE..................................56 20.A. AMOUNTS OWED...............................................56 20.B. DISCONTINUANCE OF MARKS..................................56 20.C. RETURN OF MATERIALS......................................57 20.D. TELEPHONE COMPANY........................................57 20.E. CONFIDENTIAL INFORMATION.................................58 20.F. LEASING..................................................58 20.G. COVENANT NOT TO COMPETE..................................58 20.H. PRETZEL TIME'S RIGHT TO PURCHASE ASSETS OF THE UNIT........59 21. RELATIONSHIP OF THE PARTIES/INDEMNIFICATION.......................60 21.A. EXCLUSIVE RELATIONSHIP...................................60 21.B. NO LIABILITY FOR ACTS OF OTHER PARTY.......................61 21.C. TAXES....................................................61 21.D. INDEMNIFICATION..........................................62 21.E. INDEPENDENT CONTRACTOR.....................................62 22. PROTECTION OF TRADE SECRETS.......................................63 22.A. CONFIDENTIAL INFORMATION...................................63 22.B. DISCLOSURE OF IDEAS AND NEW PROCEDURES.....................64 23. ENFORCEMENT.......................................................65 23.A. UNAVOIDABLE DELAYS.......................................65 23.B. RIGHTS OF PARTIES ARE CUMULATIVE.........................65 23.C. WAIVER OF OBLIGATIONS....................................65 23.D. CONTINUING OBLIGATIONS...................................66 23.E. INVALID OR UNENFORCEABLE<|eot_id|>
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sultants to testify when requested by Company in writing, making available records, papers, information, specimens, and the like, provided and only to the extent such is reasonably necessary to prosecute the suit. For the avoidance of doubt, nothing in this Article 7.00 shall require Investor to join any such suit as a party, and Company shall not seek to join Investor to any such suit as a party absent the express written consent of Investor. Any recovery received pursuant to such suit will first go to Investor to reimburse Investor for any costs and expenses (including attorneys' fees) reasonably incurred by Investor in cooperating with Company in the suit, and any remaining amounts shall be retained by Company. Page 9 of 15 Source: RARE ELEMENT RESOURCES LTD, SC 13D, 10/19/2017 Rare Element Resources Ltd. EXECUTION COPY IP Rights Agreement 7.01 If, after the Option is exercised before the expiration of the Option Period such that the license grants set forth in Articles 3.00 and 3.01 have become exclusive under Article 3.03, Company does not enforce the Patents, through legal action or otherwise, Investor may enforce the Patents and Company agrees to reasonably cooperate with Investor in such suit for infringement, including requesting Company's employees or consultants to testify when requested by Investor in writing, making available records, papers, information, specimens, and the like, provided and only to the extent such is reasonably necessary to prosecute the suit. For the avoidance of doubt, nothing in this Article 7.01 shall require Company to join any such suit as a party, and Investor shall not seek to join Company to any such suit as a party absent the express written consent of Company; provided, however, if Company elects not to give its express written consent to be joined as a party, but joinder is required in order for Investor to file or maintain legal action to enforce any Patents, Company agrees that if requested by Investor, Company will negotiate and enter into an amendment to this IP Agreement to the extent necessary for Investor to file or maintain legal action to enforce the Patents. Any recovery received pursuant to such suit will first go to Company to reimburse Company for any costs and expenses (including attorneys' fees) reasonably incurred by Company in cooperating with Investor in the suit, and any remaining amounts shall be retained by Investor. VIII. Non-assignability 8.00 This IP Agreement imposes personal obligations on Investor. Investor will not assign to any Third Party any rights under this IP Agreement not specifically transferable by its terms without the prior written consent of Company, such consent not to be unreasonably withheld. For the avoidance of doubt and notwithstanding the foregoing: (1) such rights are assignable by Investor to an Affiliate of Investor, and (2) Investor's rights in Investor Improvements and Joint Improvements shall be freely assignable by Investor to any Person. Page 10 of 15 Source: RARE ELEMENT RESOURCES LTD, SC 13D, 10/19/2017 Rare Element Resources Ltd. EXECUTION COPY IP Rights Agreement IX.Severability 9.00 The Parties agree that if any part, term or provision of this IP Agreement is found illegal or in conflict with any valid controlling law, the validity of the remaining provisions will not be affected thereby. 9.01 Should any provision of this IP Agreement be held by a court of law to be illegal, invalid or unenforceable, such provision shall be replaced by such provision as most closely reflects the intent of the invalid provision, and the legality, validity and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby. X. Waiver, Integration, Alteration 10.00 The waiver of a breach hereunder may be effected only by a writing signed by the waiving Party and will not constitute a waiver of any other breach. 10.01 This IP Agreement, together with the Investment Agreement and any other documents or agreements executed in connection with the transactions contemplated thereunder, represents the entire understanding between the Parties, and supersedes all other agreements, express or implied, between the Parties concerning the Patents and Technical Information. XI. Execution 11.00 This IP Agreement may be executed in counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each Party and delivered to each other Party, it being understood that the Parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf" format data file, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or ".pdf" signature page were an original thereof. Page 11 of 15 Source: RARE ELEMENT RESOURCES LTD, SC 13D, 10/19/2017 Rare Element Resources Ltd. EXECUTION COPY IP Rights Agreement XII. Cooperation 12.00 Each Party will execute any instruments reasonably believed by the other Party to be necessary to implement the provisions of this IP Agreement. XIII. Construction 13.00 This IP Agreement will be construed in accordance with the substantive laws of the state of New York and of the United States of America. XIV. Exportation of Technical Information 14.00 Investor agrees that it will not export the Technical Information furnished to Investor either directly or indirectly by Company, to any destination or Person prohibited by the U.S. Export Administration Regulations or other U.S. export control laws and regulations. 14.01 Company agrees that it will not export any information relating to Improvements or otherwise furnished to Investor either directly or indirectly by Investor Company, to any destination or Person prohibited by the U.S. Export Administration Regulations or other U.S. export control laws and regulations. XV. Notices Under this I<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>se under any Investor Improvement and any patent claiming such Investor Improvement, solely for use in rare earth mineral processing and rare earth separation, to make and have made, use, offer to sell, sell and import products made using the Investor Improvements. Such rights to Investor Improvements shall be solely for use by the Company and its Affiliates and shall not be transferable to any Third Party, except in connection with a merger, consolidation, or the sale or transfer of substantially all of Company's assets associated with performance under this IP Agreement. 5.02 Investor shall own all right, title and interest in any Improvement made jointly by Company and Investor ("Joint Improvements") during the term of this IP Agreement, and Company agrees to and hereby does assign to Investor any right, title and interest it may otherwise have in any Joint Improvement. 5.03 Investor hereby agrees to grant to Company a non-exclusive, irrevocable, royalty-free license under any Joint Improvement and any patent claiming such Joint Improvement solely for use in rare earth mineral processing and rare earth separation. Such rights to Joint Improvements shall be solely for use by the Company and shall not be transferable to any Third Party except in connection with a merger, consolidation, or the sale or transfer of substantially all of Company's assets associated with performance under this IP Agreement. Page 7 of 15 Source: RARE ELEMENT RESOURCES LTD, SC 13D, 10/19/2017 Rare Element Resources Ltd. EXECUTION COPY IP Rights Agreement 5.04. For the avoidance of doubt, all right, title and interest in intellectual property, whether or not patented, that is made or acquired by one Party or its Affiliate after the Effective Date of this IP Agreement, that is wholly unrelated to the Patents and Technical Information, shall be owned by said Party or its Affiliate. VI. Representations and Disclaimer of Warranties 6.00 SUBJECT TO AND EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 3.09 ABOVE, NOTHING IN THIS IP AGREEMENT WILL BE DEEMED TO BE A REPRESENTATION OR WARRANTY BY COMPANY OF THE ACCURACY, SAFETY OR USEFULNESS FOR ANY PURPOSE OF ANY TECHNICAL INFORMATION, TECHNIQUES, OR PRACTICES AT ANY TIME MADE AVAILABLE BY COMPANY. COMPANY WILL HAVE NO LIABILITY WHATSOEVER TO INVESTOR OR ANY OTHER PERSON FOR OR ON ACCOUNT OF ANY INJURY, LOSS OR DAMAGE OF ANY KIND OR NATURE, SUSTAINED BY, OR ANY DAMAGES ASSESSED OR ASSERTED AGAINST, OR ANY OTHER LIABILITY INCURRED BY OR IMPOSED ON INVESTOR OR ANY OTHER PERSON, ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM: (A) THE PRODUCTION, USE OR SALE OF ANY APPARATUS OR PRODUCT OR METHOD, OR THE PRACTICE OF THE PATENTS BY INVESTOR OR ITS ASSIGNS; (B) THE USE BY INVESTOR OR ITS ASSIGNS OF ANY TECHNICAL INFORMATION, TECHNIQUES, OR PRACTICES DISCLOSED BY COMPANY; OR (C) ANY ADVERTISING OR OTHER PROMOTIONAL ACTIVITIES BY INVESTOR OR ITS ASSIGNS WITH RESPECT TO ANY OF THE FOREGOING, AND INVESTOR WILL HOLD COMPANY, AND ITS OFFICERS, EMPLOYEES AND AGENTS, HARMLESS IN THE EVENT COMPANY, OR ITS OFFICERS, EMPLOYEES OR AGENTS, IS HELD LIABLE. Page 8 of 15 Source: RARE ELEMENT RESOURCES LTD, SC 13D, 10/19/2017 Rare Element Resources Ltd. EXECUTION COPY IP Rights Agreement 6.01 NOTHING IN THIS IP AGREEMENT WILL BE DEEMED TO BE A REPRESENTATION OR WARRANTY BY INVESTOR OF THE ACCURACY, SAFETY OR USEFULNESS FOR ANY PURPOSE OF ANY IMPROVEMENTS AT ANY TIME MADE AVAILABLE BY INVESTOR. INVESTOR WILL HAVE NO LIABILITY WHATSOEVER TO COMPANY OR ANY OTHER PERSON FOR OR ON ACCOUNT OF ANY INJURY, LOSS OR DAMAGE OF ANY KIND OR NATURE, SUSTAINED BY, OR ANY DAMAGES ASSESSED OR ASSERTED AGAINST, OR ANY OTHER LIABILITY INCURRED BY OR IMPOSED ON COMPANY OR ANY OTHER PERSON, ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM: (A) THE PRODUCTION, USE OR SALE OF ANY APPARATUS OR PRODUCT OR METHOD, OR THE PRACTICE OF ANY IMPROVEMENTS AT ANY TIME BY THE COMPANY, ITS AFFILIATES OR ASSIGNS; (B) THE USE OF ANY IMPROVEMENTS AT ANY TIME MADE AVAILABLE BY INVESTOR BY THE COMPANY, ITS AFFILIATES OR ASSIGNS; OR (C) ANY ADVERTISING OR OTHER PROMOTIONAL ACTIVITIES BY COMPANY ITS AFFILIATES OR ASSIGNS WITH RESPECT TO ANY OF THE FOREGOING, AND COMPANY WILL HOLD INVESTOR, AND ITS OFFICERS, EMPLOYEES AND AGENTS, HARMLESS IN THE EVENT INVESTOR, OR ITS OFFICERS, EMPLOYEES OR AGENTS, IS HELD LIABLE. VII. Litigation 7.00 Investor will notify Company of any suspected infringement of the Patents. Subject to Article 7.01 below, the sole right to institute a suit for infringement of the Patents rests with Company. Investor agrees to reasonably cooperate with Company in such suit for infringement, including requesting Investor's employees or con<|eot_id|>
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es the performance of the member over time and sends connections to the member based on the trend. 11. Node Address - Connections are sent to a node based on a combination of thenumber of current connections and the response time of the node. <|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>th a high ratio number more often than a member with a lower ratio number. Node Address - The total number of connections sent to a member in the pool is determined by the weight number you assign the node address. Least Connections Member - Connections are sent to the member with the least active connections. Node Address - Connections are sent to the node serving the least amount of connections. Observed 10. Member - Connections are sent to a member based on a combination of the number of current connections and the response time of the member. The Load Balancer analyz<|eot_id|>
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a third party) for all costs associated with (a) the design, manufacture, shipping, distribution and installation, as applicable, of Product Collateral and other marketing materials and bulkhead signage as set forth in Section ​4.01, (b) the creation of training materials and the costs associated with training (excluding cost of labor for any XSPA employee) pursuant to Section ​6, (c) obtaining and maintaining approval of, and the creation, installation, maintenance and removal of any bulkhead signage advertising pursuant to Section 4.01(a), and (d) the design, manufacture, shipping and installation of in-store marketing change<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>shall jointly consult and work together in good faith throughout the Term to develop and execute a plan for the marketing, promotion and sale of Products in all Stores throughout the Territory, including with respect to Product layout and display, in-store marketing and promotional activities, the design of any co-branded Product Collateral or other marketing materials, and bulkhead signage at the Stores, in each case, taking into account any plan restrictions on the Store that may be imposed by an airport regulatory authority or other entity and all applicable laws. 7.02. Any Product Collateral item or other marketing material co-branded with Calm's and XSPA's Marks shall be subject to each Party's prior review and approval, which shall not be unreasonably withheld. 8. Payments. 8.01. XSPA shall pay to Calm on a monthly basis an amount equal to (i) fifty percent (50%) of the Retail Price for all Products sold in the Stores in the Territory during the applicable month minus (ii) fifty percent (50%) of any commission actually paid or payable to XSPA employee(s) or contractor(s) attributable to sales of such Products during such month; provided that in no event shall such commission be greater than fifteen percent (15%) of the Retail Price for the applicable Product. 8.02. Calm shall pay to XSPA on a monthly basis a retail commission of $20.00 for each sale of Calm digital product subscriptions (excluding, for the avoidance of doubt, any free trial subscriptions) that result from XSPA's distribution of Inserts and a customer's use of the unique promotional discount code set forth therein in accordance with the terms and conditions set forth herein (it being understood that XSPA shall ensure fifty percent (50%) of each such commission shall be distributed to the applicable Store's retail employees or contractors via a pool or other format as mutually agreed to by the Parties). Calm shall prepare and maintain complete and accurate books and records covering all transactions relating to this Agreement. XSPA's representatives may, from time to time during regular business hours on reasonable advance notice, during the Term of this Agreement and for a period of six (6) months thereafter, inspect and audit such books and records and examine and copy all other documents and material in the possession or under the control of Calm with respect to the subject matter and the terms of this Agreement. 5 Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019 After completion of any inspection or audit pursuant to this Section 8.02, XSPA shall notify Calm of the results of such inspection and audit (the "Calm Audit Results"). Upon receipt of such information, Calm shall have thirty (30) days (the "Calm Review Period") to review the Calm Audit Results. On or prior to the last day of the Calm Review Period, Calm may object to the Calm Audit Results by delivering to XSPA a written statement setting forth its objections in reasonable detail, indicating each disputed item or amount and the basis for its disagreement therewith (the "Calm Statement of Objections"). If Calm fails to deliver the Calm Statement of Objections before the expiration of the Calm Review Period, the Calm Audit Results shall be deemed to have been accepted by Calm. If Calm delivers the Calm Statement of Objections before the expiration of the Calm Review Period, Calm and XSPA shall negotiate in good faith to resolve such objections within thirty (30) days after the delivery of the Calm Statement of Objections (the "Calm Resolution Period"), and, if the same are so resolved within the Calm Resolution Period, the Calm Audit Results with such changes as may have been previously agreed in writing by Calm and XSPA, shall be final and binding. If Calm and XSPA fail to reach an agreement with respect to all of the matters set forth in the Calm Statement of Objections before expiration of the Calm Resolution Period, then any amounts remaining in dispute ("Calm Disputed Amounts" and any amounts not so disputed, the "Calm Undisputed Amounts") shall be submitted for resolution to the office of an impartial nationally recognized firm of independent certified public accountants mutually agreeable to Calm and XSPA (each acting reasonably and in good faith) (the "Independent Accountant") who, acting as experts and not arbitrators, shall resolve the Calm Disputed Amounts only and make any adjustments to the Calm Audit Results. The parties hereto agree that all adjustments shall be made without regard to materiality. The Independent Accountant shall only decide the specific items under dispute by the parties and their decision for each Calm Disputed Amount must be within the range of values assigned to each such item in the Calm Audit Results and the Calm Statement of Objections, respectively. The Independent Accountant shall make a determination as soon as practicable within thirty (30) days (or such other time as the parties hereto shall agree in writing) after their engagement, and their resolution of the Calm Disputed Amounts and their adjustments to the Calm Audit Results shall be conclusive and binding upon the parties hereto. If it is conclusively determined that any of Calm's payments due hereunder was less than the amount that should have been paid or any of XSPA's payments or reimbursements was more than the amount that should have been paid, all payments required to be made to eliminate the discrepancy, plus interest, shall be made promptly upon XSPA's demand, and, if the discrepancy in amounts due to XSPA is greater than ten percent (10%) or more of the amount due during the period in question, Calm promptly shall reimburse XSPA for the reasonable costs and expenses related to such inspection and audit not to exceed $5,000.00. In all other cases, XSPA shall be responsible for any and all costs and expenses related to such inspection and audit pursuant to this Section 8.02. 6 Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019 If it is conclusively determined that any of Calm's payments due hereunder was more than the amount that should have been paid or any of XSPA's payments or reimbursements was less than the amount that should have been paid, all payments required to be made to eliminate the discrepancy, plus interest, shall be made promptly upon Calm's demand. 8.03. Subject to the terms and conditions set forth herein, and considering that Calm or its authorized designees shall be the sole supplier of Product Collateral under Section 5.04 of this Agreement, Calm shall pay (or reimburse XSPA upon receipt of payment to<|eot_id|>
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------------------------------ Title: President/CEO Title: EVP/CFO ----------------------------- ----------------------------- Date: 9/23/98 Date: 9/29/98 ------------------------------ ------------------------------ 4700 Westside Avenue 555 Broadway North Bergen, New Jersey 07047 Redwood City, California 94063 650.568.6000 (voice) 650.568.6030 (fax) 16 17 CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS. EXHIBIT A KEYWORDS acidophilus cholesterol greentree obesity medicine acids chondroitin healing omega aromatherapy adhd chromium picolinate health organic bodybuilding aids co q 10 herb pinnacle diet alternative medicine coenzyme q10 herb tea pms fitness amino acids complimentary herbal pregnant herbs andrew weil energy herbal extracts pregnancy health andro complex enzymmatic herbal tea prenatal homeopathic androstat therapy herbal teas prevention multivitamins Androstat 100 essential oils herbs protein nutrition androstat 6 ester hiv protein powders stress Androstene exercise holistic ripped vitamins androstenedione extract holistic healing rna vitamin antioxidant fat holistic medicine saint john's wort wellness antioxidants fatty acids homeopathic saw palmetto weightloss anxiety fen phen homeopathic schiff aphrodisiac phen fen natrol sex aphrodisiacs fiber nature sexual enhancer aroma fitness natural steroids aromatherapy garry null natural food solaray atkins ginkgo supplements source natural bodybuilder ginkgo biloba natural healing sports nutrition bodybuilders ginseng natural medicine st. johns wort bodybuilding glucosamine natures way st john's wort calcium green tea nature's way stress cancer green tree nutrition sulfate cats claw greentea nutritional alternative 17 18 CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS. medicine remedies coq10 homeopathy supplement country life iron supplements creatine kal tablets creatine kava teas monohydrate depression kava kava twinlab diet lactose vegetarian dietary magnesium vegetarians dione melatonin viagra disease mental alertness vitamin dna MetRx vitamins dr. andrew weil mother nature vitasave dr. atkins mother's nature weight lifting dr. weil msm weight loss dr. wiel msm sulphur weightlifting eas multivitamins weightloss echinacea natrol wellness yohimbe 18 19 CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS. EXHIBIT B MATCHLOGIC SERVICES AD MANAGEMENT, MEASUREMENT & OPTIMIZATION Ad Management, Measurement and Optimization refers to the suite of services and technologies to be used to measure and evaluate variables contributing to the performance of client marketing messages within the Excite Network. Descriptions of the services and technologies to be leveraged throughout the optimization process are highlighted below. CENTRALIZED AD SERVING Through its proprietary centralized ad serving infrastructure, MatchLogic will facilitate the trafficking, delivery, tracking and reporting of Client's banners throughout the Excite Network. During the ad management process, MatchLogic will employ TrueCount(sm) cache counting techniques as the underlying measurement technology for the reporting of client campaign performance data. Basic campaign performance data including primary impressions, clicks, click %, cache impressions and total impressions will be supplied to Client daily through an online interface. TRUEFFECT(sm) TruEffect(sm) refers to the process of establishing, tracking and communicating the relationship between locations from which users have interacted with Client's marketing messages and the activities they engaged in at the Client Site as a result of these interactions. TruEffect(sm) measurement will allow Client to directly relate user activity within the Client Site to marketing messages within the Excite Network. As a result of these measurements, Client will have the ability to optimize campaigns in order to drive actual user activities or transactions. Client will be able to identify the number of unique visitors coming to the Client Site or promotional areas, from which message and area they originated, and the number of measurable transactions these visitors performed. Additionally, measurements of reach and frequency will accompany this analysis. Upon successful implementation of TruEffect(sm), performance reporting will be available to Client on a daily basis through an online interface. LANDSCAPE(sm) LandscapE(sm) demographic profile reports will afford Client an effective means of understanding the visitor segments exposed to Client's messages or interacting with Client sponsored content areas within the Excite Network. All of the information contained within the demographic profiles is derived from consumers who have been both exposed to an advertising campaign and are also within MatchLogic's Digital 1:1(sm) database (MatchLogic's proprietary consumer database). When a subset of unique visitors taken from all visitors exposed to a Client's marketing message or content area are matched against the Digital 1:1(sm) database, demographic profiles are derived. The matched records create a sample of visitors that are used to demographically represent and statistically profile 19 20 CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS. each visitor segment. These profiles will allow Client to compare its understanding of its customers offline to its customers online as a basis for more effective segmenting and future targeting. LandscapE(sm) reports are generated on a campaign basis and will include measurements of campaign reach by Age, Gender, Age/Gender, Household Income, and Household Income/Age. These reports will be made available to Client once statistically significant profiles have been established. TRUESELECT(sm) TrueSelect(sm) is MatchLogic's centralized advertising targeting system. TrueSelect(sm) enables MatchLogic to project demographics of users across the Internet based on our Digital 1:1 database, user traffic and user search patterns. The first implementation of this technology will be Virtual Keywords slated for release in 4Q98. Virtual Keywords will allow MatchLogic to actively target a user on the Excite Network based on the user's input of search terms at a previous point in time. TrueSelect(sm) will be able to track and target users by Virtual Keywords on both an inter-day and intra-day basis. Following Virtual Keywords, TrueSelect(sm) capabilities will enable marketers to actively target specific users based on<|eot_id|>
<|begin_of_text|><|start_header_id|>system<|end_header_id|>Auto complete the following text provided to you<|eot_id|> <|start_header_id|>user<|end_header_id|>r Data, the parties will first attempt to resolve the dispute(s) through good faith negotiation. In the event that the dispute(s) cannot be resolved through good faith negotiation, the parties will refer the dispute(s) to a mutually acceptable mediator. c) In the event that disputes between the parties arising from or concerning in any manner the subject matter of this Agreement, other than disputes arising from or concerning trademarks, service marks or trade names, confidentiality and/or User Data, cannot be resolved through good faith negotiation and mediation, the parties will refer the dispute(s) to the American Arbitration Association for resolution through binding arbitration by a single arbitrator pursuant to the American Arbitration Association's rules applicable to commercial disputes. 16. GENERAL a) Assignment. Neither party may assign this Agreement, in whole or in part, without the other party's written consent (which will not be unreasonably withheld or delayed), except that no such consent will be required in connection with (i) a merger, reorganization or sale of all, or substantially all, of such party's assets or its 14 15 CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS. Internet business assets (ii) either party's assignment and/or delegation of its rights and responsibilities hereunder to a wholly-owned subsidiary or affiliate or joint venture in which the assigning party holds an interest. Any attempt to assign this Agreement other than as permitted above will be null and void. b) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, notwithstanding the actual state or country of residence or incorporation of Excite or Client. c) Notice. Any notice under this Agreement will be in writing and delivered by personal delivery, express courier, confirmed facsimile, confirmed email or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, one (1) day after deposit with express courier, upon confirmation of receipt of facsimile or email or five (5) days after deposit in the mail. Notices will be sent to a party at its address set forth in this Agreement or such other address as that party may specify in writing pursuant to this Section. d) No Agency. The parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency or joint venture. e) Force Majeure. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to, acts of God, power outages and governmental restrictions. f) Severability. In the event that any of the provisions of this Agreement are held to be unenforceable by a court or arbitrator, the remaining portions of the Agreement will remain in full force and effect. g) Entire Agreement. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties. h) Counterparts. This Agreement may be executed in counterparts, each of which will serve to evidence the parties' binding agreement. 15 16 CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS. VITAMIN SHOPPE INDUSTRIES INC. EXCITE, INC. By: [SIG] By: [SIG] -------------------------------- -------------------------------- Name: J. Howard Name: Robert C. Hood ------------------------------ <|eot_id|>
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