ONE OR MORE THIRD PARTIES
IN ORDER TO MAKE, HAVE MADE, USE, SELL, OFFER FOR SALE, IMPORT OR OTHERWISE
EXPLOIT A LICENSED PRODUCT IN THE LICENSED FIELD UNDER THE TERMS OF THIS
AGREEMENT, IAPL, AFTER GOOD FAITH CONSULTATION WITH INOVIO, AND AT IAPL'S OWN
EXPENSE, SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO NEGOTIATE AND OBTAIN A
LICENSE UNDER SUCH PATENT RIGHT(S) (EACH SUCH THIRD PARTY LICENSE REFERRED TO
HEREIN AS AN "ADDITIONAL THIRD PARTY LICENSE").
8.6.3.
THIRD PARTY SUIT.
IF A THIRD PARTY SUES INOVIO ALLEGING THAT
INOVIO'S OR IAPL'S MANUFACTURE OR COMMERCIALIZATION OF ANY LICENSED PRODUCT
INFRINGES OR WOULD INFRINGE SUCH THIRD PARTY'S PATENT RIGHT(S) OR
MISAPPROPRIATES SUCH THIRD PARTY'S TRADE SECRET(S), THEN UPON INOVIO'S REQUEST
AND IN CONNECTION WITH INOVIO'S DEFENSE OF ANY SUCH THIRD PARTY SUIT, IAPL SHALL
PROVIDE REASONABLE ASSISTANCE TO INOVIO FOR SUCH DEFENSE AND SHALL JOIN SUCH
SUIT IF DEEMED A NECESSARY PARTY, ALL AT INOVIO'S EXPENSE.
IN THE EVENT A THIRD
PARTY DIRECTLY SUES IAPL IN CONNECTION WITH THE FOREGOING, IAPL SHALL KEEP
INOVIO FULLY INFORMED PRIOR TO AND DURING THE PENDENCY OF SUCH SUIT, AND IN ANY
CASE, IAPL SHALL NOT ADMIT THE INVALIDITY OF ANY PATENT WITHIN THE INOVIO
LICENSED TECHNOLOGY, NOR SETTLE ANY SUCH SUIT, WITHOUT WRITTEN CONSENT OF
INOVIO.
8.7.
PATENT MARKING, CERTIFICATION AND TERM RESTORATION.
8.7.1.
PATENT MARKING.
TO THE EXTENT IT IS COMMERCIALLY FEASIBLE TO DO
SO, IAPL AGREES TO MARK AND HAVE ITS AFFILIATES AND ALL SUBLICENSEES MARK ALL
LICENSED PRODUCTS (OR THEIR CONTAINERS OR LABELS) SOLD PURSUANT TO THIS
AGREEMENT IN THE COUNTRY OR COUNTRIES OF MANUFACTURE AND SALE THEREOF WHERE
FAILURE TO MARK ADVERSELY AFFECTS THE RECOVERY OF DAMAGES, AND TAKING INTO
ACCOUNT MANUFACTURING EFFICIENCIES IN RELATION TO NON-U.S. MARKETS.
8.7.2.
PATENT CERTIFICATIONS.
EACH PARTY SHALL IMMEDIATELY GIVE WRITTEN
NOTICE TO THE OTHER THAT ANY CERTIFICATION OF WHICH IT BECOMES AWARE HAS BEEN
FILED PURSUANT TO 21 U.S.C. § 355(B)(2)(A), OR § 355(J)(2)(A)(VII) (OR ANY
AMENDMENT OR SUCCESSOR STATUTE THERETO) CLAIMING THAT ANY PATENT RIGHTS IN THE
INOVIO LICENSED TECHNOLOGY COVERING ANY LICENSED PRODUCT ARE INVALID OR THAT
INFRINGEMENT WOULD NOT ARISE FROM THE MANUFACTURE OR COMMERCIALIZATION OF SUCH
PRODUCT BY A THIRD PARTY.
8.7.3.
PATENT TERM RESTORATION.
IAPL SHALL COOPERATE WITH INOVIO IN
OBTAINING PATENT TERM RESTORATION OR EXTENSION ANYWHERE IN THE TERRITORY,
INCLUDING UNDER 35 U.S.C. § 156, WHERE APPLICABLE TO ANY PATENT RIGHT COVERING
THE MANUFACTURE, OR COMMERCIALIZATION OF ANY LICENSED PRODUCT.
9.
TERM AND TERMINATION.
9.1.
TERM.
THE TERM OF THIS AGREEMENT ("TERM") SHALL COMMENCE ON
THE EFFECTIVE DATE AND EXTEND ON A COUNTRY BY COUNTRY BASIS, UNLESS THIS
AGREEMENT IS TERMINATED EARLIER IN ACCORDANCE WITH THIS SECTION 9, UNTIL THE
LAST TO EXPIRE OF ANY INOVIO PATENT RIGHTS FOR ANY LICENSED PRODUCT IN SUCH
COUNTRY.
15
9.2.
TERMINATION.
9.2.1.
TERMINATION FOR CAUSE.
THIS AGREEMENT MAY BE TERMINATED EFFECTIVE
IMMEDIATELY BY WRITTEN NOTICE BY INOVIO IF IAPL MATERIALLY BREACHES ANY
PROVISION OF THIS AGREEMENT, WHICH BREACH REMAINS UNCURED FOR SIXTY (60) DAYS
MEASURED FROM THE DATE WRITTEN