profits or opportunities, even if advised of the
possibility of such damages.
In no event shall Monsanto's liability to Senesco
arising out of or in connection with this Agreement, the Senesco Technology, or
Monsanto's use or other exploitation thereof, whether in contract, tort or any
other theory of liability, including strict liability, exceed in the aggregate
the amounts actually paid by Monsanto to Senesco during the one (1) year period
before such liability first accrues.
9.
TERM AND TERMINATION.
9.1
TERM.
THE TERM OF THIS AGREEMENT SHALL COMMENCE ON THE EFFECTIVE
DATE AND, UNLESS TERMINATED EARLIER AS PROVIDED FOR HEREIN, SHALL CONTINUE UNTIL
THE EXPIRATION OF THE LAST TO EXPIRE SENESCO PATENT RIGHTS.
WITHOUT LIMITING
THE FOREGOING, THE TERM OF THIS AGREEMENT SHALL
10
SURVIVE THE NON-RENEWAL OR TERMINATION OF ANY PARTICULAR LICENSE GRANTED
HEREUNDER, BUT NOT THE AGREEMENT IN ITS ENTIRETY.
9.2
TERMINATION BY MONSANTO.
MONSANTO MAY TERMINATE THIS AGREEMENT AT
ANY TIME UPON SIXTY (60) PRIOR NOTICE TO SENESCO.
9.3
TERMINATION FOR CAUSE.
9.3.1
TERMINATION OF THE AGREEMENT.
SUBJECT TO THE LIMITATIONS SET FORTH
IN SECTION 9.3.2 REGARDING SENESCO'S RIGHT TO TERMINATE ANY LICENSES GRANTED
UNDER THIS AGREEMENT, EITHER PARTY MAY, UPON NOTICE TO THE OTHER PARTY,
TERMINATE THIS AGREEMENT IN ITS ENTIRETY IF THE OTHER PARTY MATERIALLY BREACHES
THIS AGREEMENT AND FAILS TO CURE SUCH BREACH WITHIN NINETY (90) DAYS AFTER
RECEIVING WRITTEN NOTICE THEREOF FROM THE PARTY SEEKING TO TERMINATE.
9.3.2
TERMINATION OF LICENSE.
SENESCO MAY, UPON NOTICE TO MONSANTO AND
MONSANTO'S FAILURE TO CURE WITHIN A NINETY (90) DAY PERIOD, TERMINATE ANY
LICENSE TO A SENESCO PATENT RIGHT FOLLOWING MONSANTO'S UNAUTHORIZED USE THEREOF
OR NONPAYMENT OF UNDISPUTED FEES ACCRUED AND PAYABLE UNDER SECTION 3.
9.3.3
FOR AVOIDANCE OF DOUBT, TERMINATION OF THE AGREEMENT OR OF A
LICENSE HEREUNDER PURSUANT TO THIS SECTION 9.3 SHALL BE EFFECTIVE ONLY IF THE
PARTY SEEKING TO TERMINATE PROVIDES NOTICE OF BREACH, SUCH BREACH IS NOT CURED
WITHIN NINETY (90) DAYS, AND SUCH PARTY THEN PROVIDES NOTICE OF TERMINATION UPON
EXPIRATION OF SUCH CURE PERIOD.
9.4
ACCRUED OBLIGATIONS.
TERMINATION OF THIS AGREEMENT OR ANY LICENSE
GRANTED HEREUNDER FOR ANY REASON SHALL NOT RELEASE ANY PARTY FROM ANY LIABILITY
WHICH, AT THE TIME OF SUCH TERMINATION, HAS ALREADY ACCRUED TO THE OTHER PARTY.
SUBJECT TO THE LIMITATIONS SET FORTH IN SECTIONS 6.2 AND 8, NEITHER PARTY IS
PRECLUDED FROM PURSUING ANY RIGHTS AND REMEDIES IT MAY HAVE UNDER THIS AGREEMENT
AND AT LAW AND IN EQUITY WHICH ACCRUED OR ARE BASED UPON ANY EVENT OCCURRING
PRIOR TO SUCH TERMINATION.
9.5
INSOLVENCY.
THE PARTIES AGREE THAT THE LICENSES GRANTED HEREUNDER
ARE OF INTELLECTUAL PROPERTY COVERED BY 11 U.S.C. § 365(N) AND THAT IF A TRUSTEE
OF SENESCO REJECTS THE AGREEMENT AS AN EXECUTORY CONTRACT, MONSANTO HAS THE
RIGHT TO CONTINUE ITS RIGHTS UNDER THE AGREEMENT FOLLOWING NOTICE AND ASSUMPTION
OF ITS OBLIGATIONS.
THEY FURTHER AGREE THAT IN THE EVENT OF SUCH REJECTION,
FAILURE BY THE MONSANTO TO ASSERT ITS RIGHTS TO "RETAIN ITS BENEFITS" UNDER THE
AGREEMENT PURSUANT TO 11 U.S.C.