BY AVANT, OR TO WHICH AVANT HAS SIMILAR RIGHTS, WHICH PRODUCT IS
OF SIMILAR MARKET POTENTIAL AND IS AT A SIMILAR STAGE IN ITS DEVELOPMENT OR LIFE
AS IS SUCH LICENSED PRODUCT, TAKING INTO ACCOUNT ISSUES OF SAFETY, EFFICACY,
PRODUCT PROFILE, THE COMPETITIVENESS OF THE MARKETPLACE, THE PROPRIETARY
POSITION OF THE LICENSED PRODUCT, THE REGULATORY STRUCTURE INVOLVED,
PROFITABILITY OF THE LICENSED PRODUCT AND OTHER RELEVANT COMMERCIAL FACTORS.
5.3
TECHNOLOGY TRANSFER.
SELECT SHALL DISCLOSE TO AVANT IN WRITING ANY AND
ALL LICENSED SUBJECT MATTER DEVELOPED OR PREPARED OR OTHERWISE CONTROLLED BY
SELECT OR ANY OF ITS AFFILIATES, PROMPTLY AFTER THE DEVELOPMENT OR PREPARATION
OR ACQUISITION THEREOF, IN EACH CASE AS REASONABLY NECESSARY OR USEFUL FOR AVANT
TO EXERCISE THE LICENSE GRANTED TO IT PURSUANT TO SECTIONS 3.1.A AND 3.2.A.
SELECT SHALL PROVIDE REASONABLE ASSISTANCE TO AVANT TO EFFECT THE TIMELY AND
ORDERLY TRANSFER OF SELECT'S KNOW-HOW TO AVANT FOR AVANT'S
17
USE UNDER THE RESEARCH PROGRAM AND FOR USE IN AVANT'S RESEARCH, DEVELOPMENT,
MANUFACTURING ACTIVITIES AND COMMERCIALIZATION OF LICENSED PRODUCTS.
6 - DISCLAIMER OF WARRANTY
6.1
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9, NEITHER SELECT
NOR AVANT MAKES ANY WARRANTIES, EXPRESS OR IMPLIED AND EXPRESSLY DISCLAIM ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7 - TERM AND TERMINATION
7.1
TERM.
THIS AGREEMENT SHALL COMMENCE AS OF THE EFFECTIVE DATE AND, UNLESS
SOONER TERMINATED AS PROVIDED HEREIN, SHALL CONTINUE IN EFFECT ON A LICENSED
PRODUCT-BY-LICENSED PRODUCT BASIS, AND COUNTRY-BY-COUNTRY BASIS UNTIL THE DATE
ON WHICH SELECT IS NO LONGER ENTITLED TO RECEIVE A ROYALTY ON SUCH LICENSED
PRODUCT IN SUCH COUNTRY. UPON THERE BEING NO MORE SUCH PAYMENTS HEREUNDER FOR
ANY SUCH LICENSED PRODUCTS IN SUCH COUNTRY, THE LICENSE GRANTS CONTAINED IN
SECTION 3.1A AND 3.2 SHALL BECOME FULLY PAID UP WITH RESPECT TO SUCH LICENSED
PRODUCTS IN SUCH COUNTRY.
7.2
TERMINATION FOR BREACH.
EITHER PARTY MAY TERMINATE THIS AGREEMENT IN THE
EVENT THE OTHER PARTY SHALL HAVE MATERIALLY BREACHED OR DEFAULTED IN THE
PERFORMANCE OF ANY OF ITS MATERIAL OBLIGATIONS HEREUNDER, AND SUCH DEFAULT SHALL
HAVE CONTINUED FOR SIXTY (60) DAYS AFTER WRITTEN NOTICE THEREOF WAS PROVIDED TO
THE BREACHING PARTY BY THE NON-BREACHING PARTY (THE "NOTICE PERIOD"), PROVIDED,
HOWEVER, THAT THE NOTICE PERIOD SHALL BE SIX (6) MONTHS IN THE CASE OF A
MATERIAL BREACH BY AVANT OF ITS DILIGENCE OBLIGATIONS SET FORTH IN SECTION 5.2,
SUBJECT TO THE CONDITION THAT AVANT SHALL COMMENCE ACTION TO CURE SUCH BREACH
WITHIN THIRTY (30) DAYS AFTER RECEIPT OF SUCH NOTICE AND SHALL DILIGENTLY
CONTINUE SUCH ACTIONS THEREAFTER.
ANY TERMINATION SHALL BECOME EFFECTIVE AT THE
END OF SUCH NOTICE PERIOD UNLESS THE BREACHING PARTY HAS CURED ANY SUCH BREACH
OR DEFAULT PRIOR TO THE EXPIRATION OF THE NOTICE PERIOD.
THE PARTIES
ACKNOWLEDGE AND AGREE THAT THE FAILURE BY AVANT TO COMPLY WITH ITS DILIGENCE
OBLIGATIONS SET FORTH IN SECTION 5.2 FOR A PERIOD OF MORE THAN THREE (3) MONTHS
SHALL CONSTITUTE A MATERIAL BREACH OF THIS AGREEMENT.
TERMINATION OF THIS
AGREEMENT BY SELECT UNDER THIS SECTION