PRODUCT LABELING AND PROMOTIONAL MATERIALS AS BEING DEVELOPED
BY AND UNDER LICENSE FROM SONUS.
SECTION 6.03
CO-PROMOTION.
SONUS SHALL HAVE THE
OPTION, IN ITS DISCRETION, TO CO-PROMOTE THE PRODUCT IN THE FIELD IN THE UNITED
STATES.
SONUS SHALL EXERCISE ITS CO-PROMOTION RIGHT, IF AT ALL, BY PROVIDING
SCHERING AT LEAST NINETY (90) DAYS PRIOR WRITTEN NOTICE, WHICH WRITTEN NOTICE
MUST BE DELIVERED ON OR BEFORE THE SUBMISSION OF THE FIRST NDA TO THE FDA UNDER
THIS AGREEMENT, UPON THE ELECTION OF SONUS TO EXERCISE ITS RIGHT OF CO-PROMOTION
OF THE PRODUCT IN THE UNITED STATES, SCHERING AND SONUS SHALL HAVE CO-EXCLUSIVE
RESPONSIBILITY FOR PROMOTING SALES OF THE PRODUCT IN UNITED STATES, SUBJECT TO
THE TERMS AND CONDITIONS OF THIS AGREEMENT.
THE PARTIES SHALL CO-OPERATE IN
CONNECTION WITH THE CO-PROMOTION OF THE PRODUCT BASED UPON THE PRINCIPLE OF
MAXIMIZING PROFITS FROM SALES OF THE PRODUCT.
IN CONNECTION WITH SUCH
CO-PROMOTION, THE MARKETING EFFORTS OF SONUS SHALL BE CONSISTENT WITH THE
OVERALL MARKET STRATEGY ESTABLISHED BY SCHERING.
THE CO-PROMOTION AGREEMENT
23
SHALL COVER AT LEAST THE FOLLOWING TOPICS: BUDGET FOR THE CO-PROMOTION
ACTIVITIES OF BOTH PARTIES; THE PARTIES' ADVERTISING AND DETAILING
RESPONSIBILITIES; THE PHYSICIAN AUDIENCE TO WHICH THE PARTIES' RESPECTIVE SALES
REPRESENTATIVES WILL TARGET THEIR DETAILING CALLS; AND A PROCESS FOR AUDITING
THE PARTIES' RESPECTIVE DETAILING CALL EFFORTS.
IN THE EVENT THAT SONUS ELECTS
TO EXERCISE ITS CO-PROMOTION RIGHT, THE PARTIES SHALL SHARE ALL COSTS OF
COMMERCIALIZING THE PRODUCT IN THE UNITED STATES AND WILL SHARE IN ALL US
OPERATING PROFITS: [*] SCHERING AND [*] SONUS, AND SCHERING SHALL NOT BE
REQUIRED TO PAY ANY ROYALTIES TO SONUS ON NET SALES OF THE PRODUCT IN THE UNITED
STATES.
BY WAY OF CLARIFICATION, SCHERING SHALL BE SOLELY RESPONSIBLE FOR
BOOKING ALL SALES OF THE PRODUCTS IN THE UNITED STATES AND ELSEWHERE IN THE
TERRITORY.
SECTION 6.04
TRADEMARKS.
SCHERING SHALL SELECT
AND USE ITS OWN TRADEMARKS, IN CONNECTION WITH THE PROMOTION OF THE PRODUCT
UNDER THIS AGREEMENT (THE "SCHERING MARKS").
SCHERING WILL OWN THE SCHERING
MARKS AND ANY DOMAIN NAMES INCORPORATING SUCH TRADEMARKS USED BY SCHERING IN
CONNECTION WITH MARKETING AND SALE OF THE PRODUCTS IN THE TERRITORY, AND ALL
GOODWILL ASSOCIATED THEREWITH.
SONUS WILL NOT HAVE, ASSERT OR ACQUIRE ANY
RIGHT, TITLE OR INTEREST IN OR TO ANY OF THE SCHERING MARKS OR MAKE ANY USE OF
THE SCHERING MARKS, EXCEPT THAT SONUS MAY REFERENCE THE SCHERING MARKS IN
CONNECTION WITH ITS GENERAL BUSINESS ACTIVITIES RELATED TO THE PRODUCT AND
EXCEPT AS OTHERWISE AGREED BY THE PARTIES.
SCHERING SHALL BE RESPONSIBLE FOR
THE COSTS OF PROSECUTING, MAINTAINING AND ENFORCING ANY OF THE SCHERING MARKS.
IF MUTUALLY AGREED BY THE PARTIES, SCHERING MAY USE THE SONUS MARKS IN
CONNECTION WITH ITS PROMOTION OF THE PRODUCT IN THE TERRITORY, SUBJECT TO
SECTION 2.03, AND SONUS MAY USE SCHERING MARKS IN CONNECTION WITH ITS
CO-PROMOTION OF THE PRODUCT IN THE UNITED STATES, IN ACCORDANCE WITH THE
CO-PROMOTION AGREEMENT TO BE NEGOTIATED BETWEEN THE PARTIES PURSUANT TO
SECTION 6.03 ABOVE.
ARTICLE VII
MANUFACTURE AND SUPPLY
SECTION