ARE REASONABLY
APPROPRIATE FOR CUBIST TO BEAR IN LIGHT OF THE RELATIVE FINANCIAL BENEFITS THAT
COULD REASONABLY BE EXPECTED TO BE DERIVED FROM SUCH LICENSE BY CUBIST AND, IF
* CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED WITH THE
COMMISSION
55
applicable, Third Party licensees of Cubist outside the Territory, on the one
hand, and by Chiron in the Territory, on the other hand.
(E)
LIMITATION OF OBLIGATION TO SUBLICENSE.
NOTWITHSTANDING ANYTHING IN THIS
AGREEMENT EXPRESSED OR IMPLIED TO THE CONTRARY, THE PARTY THAT OBTAINS A LICENSE
PURSUANT TO SECTION 8.7(D) ABOVE SHALL HAVE NO OBLIGATION TO MAKE THE LICENSED
RIGHTS OBTAINED PURSUANT TO SUCH LICENSE AVAILABLE TO THE OTHER PARTY IF SUCH
OTHER PARTY IS NOT BEARING A REASONABLY APPROPRIATE PORTION OF THE COST AND
EXPENSE OF SEEKING AND MAINTAINING SUCH LICENSE IN LIGHT OF THE RELATIVE
FINANCIAL BENEFITS THAT COULD REASONABLY BE EXPECTED TO BE DERIVED FROM SUCH
LICENSE BY CHIRON IN THE TERRITORY, ON THE ONE HAND, AND BY CUBIST AND, IF
APPLICABLE, THIRD PARTY LICENSEES OF CUBIST OUTSIDE THE TERRITORY, ON THE OTHER
HAND.
(F)
DETERMINATION OF RELATIVE FINANCIAL BENEFITS.
IN CONNECTION WITH ANY
DETERMINATION OF THE RELATIVE FINANCIAL BENEFITS THAT COULD REASONABLY BE
EXPECTED TO BE DERIVED BY CHIRON, CUBIST AND, IF APPLICABLE, THIRD PARTY
LICENSEES OF CUBIST IN CONNECTION WITH ANY LICENSE OBTAINED BY CUBIST OR CHIRON
PURSUANT TO THIS SECTION 8.7, SUCH RELATIVE FINANCIAL BENEFITS SHALL BE
DETERMINED BY CONSIDERING ACTUAL AND PROJECTED NET SALES AND ACTUAL OR PROJECTED
ROYALTIES FROM SALES OF THE APPLICABLE LICENSED PRODUCT BY CHIRON, CUBIST AND,
IF APPLICABLE, THIRD PARTY LICENSEES OF CUBIST IN THE TERRITORY OR TERRITORIES
THAT IS OR ARE COVERED BY ANY SUCH LICENSE.
8.8.
PATENT MARKING.
LICENSED PRODUCTS MARKETED AND SOLD BY THE PARTIES
HEREUNDER SHALL BE MARKED WITH APPROPRIATE PATENT NUMBERS OR INDICIA AT CUBIST'S
REQUEST, TO THE EXTENT PERMITTED BY LAW, IN THOSE COUNTRIES IN WHICH SUCH
MARKINGS HAVE NOTICE VALUE AS AGAINST INFRINGERS OF PATENTS.
8.9.
APPLICABILITY TO CHIRON PATENTS.
NOTWITHSTANDING ANY PROVISION OF THIS
AGREEMENT TO THE CONTRARY, THE PROVISIONS OF THIS ARTICLE 8 SHALL APPLY TO ANY
CHIRON PATENT ONLY TO THE EXTENT THAT THE PARTIES HAVE NOT OTHERWISE AGREED ON
RESPONSIBILITIES FOR PROSECUTION, MAINTENANCE, ENFORCEMENT, DEFENSE AND OTHER
MANAGEMENT OF SUCH CHIRON PATENT.
8.10.
TRADEMARKS.
(A)
TRADEMARK LICENSE.
SUBJECT TO THE PROVISIONS SET FORTH IN THIS
SECTION 8.10, CUBIST HEREBY GRANTS CHIRON AN EXCLUSIVE, ROYALTY-FREE LICENSE
UNDER ITS ENTIRE RIGHT, TITLE AND INTEREST IN AND TO THE CUBIST MARKS TO USE AND
DISPLAY THE CUBIST MARKS IN CONNECTION WITH THE COMMERCIALIZATION OF LICENSED
PRODUCTS WITHIN THE TERRITORY.
CHIRON SHALL NOT USE CUBIST'S TRADE NAMES AND/OR
MARKS IN A WAY WHICH WOULD BE CONFUSING OR OTHERWISE ADVERSELY AFFECT THEIR
VALUE.
CHIRON AGREES THAT IT WILL NOT REPRODUCE OR USE THE CUBIST MARKS IN ANY
MANNER WHATSOEVER OTHER THAN AS AUTHORIZED BY THIS AGREEMENT, AND THAT ITS USES
OF THE CUBIST MARKS WILL COMPLY WITH THE CURRENT TRADEMARK GUIDELINES THAT
CUBIST MAY PROVIDE FROM TIME TO