FILED IN ANY INSOLVENCY PROCEEDING, AND
SUCH PETITION SHALL NOT BE DISMISSED WITHIN SIXTY (60) DAYS AFTER ITS FILING, OR
IF THE OTHER PARTY SHALL PROPOSE OR BE A PARTY TO ANY DISSOLUTION OR
LIQUIDATION, OR IF THE OTHER PARTY SHALL MAKE AN ASSIGNMENT FOR THE BENEFIT OF
CREDITORS.
6.4
ESC SHALL HAVE THE RIGHT TO TERMINATE THIS
AGREEMENT AT ANY TIME FOR ANY REASON UPON NINETY (90) DAYS PRIOR WRITTEN NOTICE
TO HOLOGIC.
6.5
TERMINATION OF THIS AGREEMENT FOR ANY REASON
SHALL BE WITHOUT PREJUDICE TO ANY OTHER REMEDIES TO WHICH EITHER PARTY IS OR
THEREAFTER BECOMES ENTITLED HEREUNDER AND SHALL NOT AFFECT ANY OBLIGATIONS OR
RIGHTS ACCRUED BEFORE TERMINATION HEREUNDER, PROVIDED HOWEVER, THAT ESC SHALL BE
OBLIGATED TO MAKE ALL PAYMENTS REQUIRED BY SECTION 5. REGARDLESS OF THE DATE OF
ANY SUCH TERMINATION.
6.6
THE FOLLOWING PROVISIONS SHALL SURVIVE THE
EXPIRATION OR TERMINATION OF THIS AGREEMENT:
ARTICLE 5, SECTION 6.5, AND
ARTICLES 9, 10, 11, 12, 13, AND 14.
7.
Labeling
7.1
ESC'S RIGHT TO SUBLICENSE UNDER THE GRANT OF
SECTION 2.1 IS LIMITED TO THE RIGHT TO CONVEY USE RIGHTS, ONLY TO END USERS, AND
ONLY THROUGH THE SALE OF LICENSED PRODUCTS.
ESC AGREES THAT IT SHALL MARK
CONSPICUOUSLY ALL LICENSED PRODUCTS MADE BY OR FOR IT, AND SHALL CAUSE EACH OF
ITS AFFILIATES TO MARK OR HAVE MARKED CONSPICUOUSLY ALL LICENSED PRODUCTS WITH
THE FOLLOWING LEGEND OR SUCH ALTERNATIVE LEGEND AS SHALL BE MUTUALLY AGREED TO
BY THE PARTIES.
ESC SHALL INCLUDE THE FOLLOWING NOTICES OR LABELS ON ALL
LICENSED PRODUCTS:
THE PURCHASE OF THIS PRODUCT GRANTS THE PURCHASER RIGHTS UNDER CERTAIN HOLOGIC
PATENTS TO USE IT SOLELY FOR PROVIDING HUMAN IN VITRO DIAGNOSTIC SERVICES.
NO
GENERAL PATENT OR OTHER LICENSE OF ANY KIND OTHER THAN THIS SPECIFIC RIGHT OF
USE FROM PURCHASE IS GRANTED HEREBY.
7.2
MAINTENANCE OF LABEL LICENSES BY
DISTRIBUTORS.
ESC AGREES TO USE ITS REASONABLE EFFORTS TO ENSURE THAT THE ESC
DISTRIBUTORS MAINTAIN ON ALL LICENSED PRODUCTS SOLD BY SUCH DISTRIBUTORS THE
LEGEND PROVIDED FOR IN THIS ARTICLE 7.
9
7.3
MISUSE BY END-USERS OF LICENSED PRODUCTS.
IN THE EVENT THAT HOLOGIC BECOMES AWARE THAT ANY END-USER OF ANY LICENSED
PRODUCT IS MISUSING THE PURCHASED LICENSED PRODUCT IN VIOLATION OF THE
APPLICABLE LABEL LICENSE ON SUCH LICENSED PRODUCT AND IS THEREBY INFRINGING THE
LICENSED PATENTS, HOLOGIC MAY PROVIDE EVIDENCE OF SUCH MISUSE TO ESC.
UPON
RECEIPT OF SUCH EVIDENCE, ESC SHALL NOTIFY SUCH END-USER OF THE END-USER'S
MISUSE AND SHALL USE ITS REASONABLE EFFORTS TO OBTAIN A WRITTEN ASSURANCE FROM
SUCH END-USER THAT THE END-USER SHALL NOT ENGAGE IN SUCH MISUSE IN THE FUTURE.
IF THE END-USER REFUSES TO PROVIDE SUCH WRITTEN ASSURANCE, THEN ESC SHALL CEASE,
TO THE EXTENT PERMITTED BY ANY APPLICABLE LAW OR STATUTE, THE SALE TO SUCH
END-USER OF THE LICENSED PRODUCT WHICH WAS BEING MISUSED UNTIL SUCH TIME AS THE
END-USER PROVIDES SUCH WRITTEN ASSURANCE.
IF, NOTWITHSTANDING THE END-USER'S
PROVISION OF SUCH WRITTEN ASSURANCE, THE END-USER PERSISTS IN MISUSING THE
LICENSED PRODUCT, THEN ESC SHALL DISCONTINUE,