SUCH
INSURANCE UPON SUCH OTHER PARTY'S REQUEST. EACH PARTY SHALL PROVIDE THE OTHER
PARTY WITH WRITTEN NOTICE OF AT LEAST THIRTY (30) DAYS IN ADVANCE BEFORE THE
CANCELLATION, NON-RENEWAL OR MATERIAL CHANGE IN SUCH INSURANCE.
C.
EACH PARTY SHALL MAINTAIN SUCH COMMERCIAL GENERAL LIABILITY INSURANCE
BEYOND THE EXPIRATION OR TERMINATION OF THIS AGREEMENT DURING (I) THE PERIOD
THAT ANY LICENSED PRODUCT DEVELOPED PURSUANT TO THIS AGREEMENT IS BEING
COMMERCIALLY DISTRIBUTED OR SOLD BY AVANT OR BY A SUBLICENSEE OR AGENT OF AVANT;
AND (II) THE FIVE (5) YEAR PERIOD IMMEDIATELY AFTER SUCH PERIOD.
9- REPRESENTATIONS AND WARRANTIES
9.1
EACH OF THE PARTIES HEREBY REPRESENTS AND WARRANTS AND COVENANTS AS
FOLLOWS:
A.
THIS AGREEMENT IS A LEGAL AND VALID OBLIGATION BINDING UPON SUCH PARTY
AND ENFORCEABLE IN ACCORDANCE WITH ITS TERMS.
THE EXECUTION, DELIVERY AND
PERFORMANCE OF THE AGREEMENT BY SUCH PARTY DOES NOT CONFLICT WITH ANY AGREEMENT,
INSTRUMENT OR UNDERSTANDING, ORAL OR WRITTEN, TO WHICH IT IS A PARTY OR BY WHICH
IT IS BOUND, NOR VIOLATE ANY LAW OR REGULATION OF ANY COURT, GOVERNMENTAL BODY
OR ADMINISTRATIVE OR OTHER AGENCY HAVING JURISDICTION OVER IT.
B.
EACH PARTY HAS NOT, AND DURING THE TERM OF THE AGREEMENT WILL NOT, GRANT
ANY RIGHT TO ANY THIRD PARTY RELATING TO ITS RESPECTIVE TECHNOLOGY IN THE FIELD
WHICH WOULD CONFLICT WITH THE RIGHTS GRANTED TO THE OTHER PARTY HEREUNDER.
C.
EACH PARTY OWNS OR OTHERWISE CONTROLS ALL OF THE RIGHTS, TITLE AND
INTEREST IN AND TO ITS PATENTS AND KNOW-HOW.
9.2
SELECT REPRESENTS, WARRANTS AND COVENANTS THAT AS OF THE EFFECTIVE DATE,
THE SELECT PATENTS ARE SET FORTH ON APPENDIX C, AND THERE ARE NO OTHER PATENTS
OWNED OR CONTROLLED BY SELECT OR ANY OF ITS AFFILIATES AS OF THE EFFECTIVE DATE
CONCERNING THE RESEARCH, DEVELOPMENT, MANUFACTURE, USE OR SALE OF LICENSED
PRODUCT OR OTHERWISE RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
9.3
PATENTS AND KNOW-HOW WARRANTIES.
TO THE BEST OF ITS KNOWLEDGE AS OF THE
EFFECTIVE DATE, EACH PARTY REPRESENTS AND WARRANTS THAT (I) KNOW-HOW AND ANY
21
PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT RELATING TO THE FIELD OWNED OR
CONTROLLED BY SUCH PARTY ARE NOT CURRENTLY BEING INFRINGED BY ANY THIRD PARTY,
AND (II) THAT THE PRACTICE OF SUCH RIGHTS DOES NOT INFRINGE ANY PROPERTY RIGHT
OF ANY THIRD PARTY.
9.4
EXCLUSIVITY/NON-COMPETITION.
A.
SELECT SHALL NOT CONDUCT, HAVE CONDUCTED OR FUND ANY RESEARCH,
DEVELOPMENT, REGULATORY, MANUFACTURING OR COMMERCIALIZATION ACTIVITY DIRECTED TO
THE DISCOVERY, DEVELOPMENT OR COMMERCIALIZATION OF A VACCINE PRODUCT CONTAINING
AN ANTIGEN WHILE AVANT HAS THE RIGHT TO SELECT A SECOND LICENSED PRODUCT OR
THIRD LICENSE PRODUCT, EXCEPT AS IS PERMITTED FOR (I) A CANDIDATE ANTIGEN AS
PROVIDED BY SECTION 9.4B AND (II) AN EXCLUDED ANTIGEN.
B.
OTHER THAN WITH RESPECT TO THE FIRST LICENSED PRODUCT, AVANT SHALL HAVE
NO RIGHTS UNDER THIS AGREEMENT WITH RESPECT TO A VACCINE PRODUCT CONTAINING A
CANDIDATE ANTIGEN UNLESS AVANT ELECTS TO CHOOSE SUCH CANDIDATE ANTIGEN FOR A
SECOND LICENSED PRODUCT OR THIRD LICENSED PRODUCT AS SET FORTH IN SECTION 3.5.
EXCEPT