SECTION 4.3 (RESEARCH
LICENSE); SECTION 5.7.1 (RECORDS); SECTION 6.2 (PRODUCT DEVELOPMENT DILIGENCE
OBLIGATIONS); SECTION 6.5 (PATENT MARKING); SECTION 9.2.1 (CONTROL OF ACTIONS);
SECTION 13.4 (USE OF NAMES); SECTION 14.6 (ASSUMPTION BY UNIVERSITY); SECTION
15.2 (INDEMNIFICATION OF UNIVERSITY); SECTION 15.3 (NO CONSEQUENTIAL DAMAGES);
SECTION 15.4 (INSURANCE); AND SECTION 15.5 (SETTLEMENTS).
7
2.37
"VALID CLAIM" MEANS ANY CLAIM OF AN ISSUED AND
NON-EXPIRED PATENT WHICH HAS NOT BEEN WITHDRAWN, CANCELED, OR DISCLAIMED NOR
HELD INVALID BY A COURT, TRIBUNAL, ARBITRATOR OR GOVERNMENTAL AGENCY OF
COMPETENT JURISDICTION IN A FINAL OR UNAPPEALED OR UNAPPEALABLE DECISION.
3.
UNIVERSITY CONSENT AND APPROVAL
3.1
UNIVERSITY APPROVAL.
LICENSOR HAS DELIVERED
TO THE UNIVERSITY A COPY OF THIS AGREEMENT, AND RECEIVED THE UNIVERSITY'S
WRITTEN APPROVAL OF THE SUBLICENSE IN THE LICENSOR PATENT RIGHTS GRANTED HEREIN,
AND HAS PROVIDED LICENSEE WITH A COMPLETE AND ACCURATE COPY OF SUCH WRITTEN
APPROVAL.
3.2
CONSENT AND ACKNOWLEDGEMENT.
LICENSOR HAS
RECEIVED FROM THE UNIVERSITY A CONSENT AND ACKNOWLEDGEMENT PROVIDING THAT, TO
THE EXTENT THAT ANY OF THE UNIVERSITY PROVISIONS ARE INCONSISTENT WITH ANY
PROVISION OF THE UNIVERSITY LICENSE, THE UNIVERSITY PROVISIONS SHALL CONTROL,
AND THAT LICENSEE SHALL BE A THIRD PARTY BENEFICIARY OF SUCH CONSENT AND
ACKNOWLEDGEMENT.
LICENSOR HAS PROVIDED LICENSEE WITH A COMPLETE AND ACCURATE
COPY OF SUCH CONSENT AND ACKNOWLEDGEMENT.
4.
LICENSE
4.1
GRANT.
SUBJECT TO THE TERMS OF THIS
AGREEMENT AND LICENSEE'S OBLIGATIONS ARISING THEREFROM, LICENSOR HEREBY GRANTS,
EFFECTIVE UPON CLOSING, TO LICENSEE AND ITS AFFILIATES AN EXCLUSIVE,
ROYALTY-BEARING LICENSE, UNDER THE LICENSOR PATENT RIGHTS TO IMPORT, DEVELOP,
HAVE DEVELOPED, MAKE, HAVE MADE, USE, OFFER FOR SALE AND SELL PRODUCT FOR THE
MENOPAUSE INDICATIONS IN THE TERRITORY.
4.2
SUBLICENSING.
LICENSEE SHALL HAVE THE RIGHT
TO SUBLICENSE ITS RIGHTS TO THE LICENSOR PATENT RIGHTS, BUT SOLELY TO THE EXTENT
SUCH SUBLICENSE IS CONSISTENT WITH THE FOLLOWING LIMITATIONS:
4.2.1
LICENSEE IS RESPONSIBLE FOR ITS SUBLICENSEES AND
MUST NOT GRANT ANY RIGHTS THAT ARE INCONSISTENT WITH THE RIGHTS GRANTED TO AND
OBLIGATIONS OF LICENSEE HEREUNDER.
ANY ACT OR OMISSION OF A SUBLICENSEE THAT
WOULD BE A BREACH OF THIS AGREEMENT IF PERFORMED
8
BY LICENSEE WILL BE DEEMED TO BE A BREACH BY LICENSEE OF THIS AGREEMENT.
4.2.2
EACH SUBLICENSE GRANTED BY LICENSEE MUST PROVIDE
THAT THE OBLIGATIONS OF LICENSEE TO (I) UNIVERSITY IN THE UNIVERSITY PROVISIONS
AND (II) LICENSOR IN THIS AGREEMENT SHALL BE BINDING UPON THE SUBLICENSEE AS IF
IT WERE A PARTY TO THIS AGREEMENT.
4.2.3
NO SUBLICENSE MAY CONTAIN ANY PROVISION THAT WOULD
CAUSE THE SUBLICENSED RIGHTS TO THE LICENSOR PATENT RIGHTS TO EXTEND BEYOND THE
TERM OF THIS AGREEMENT OR TO EXTEND OUTSIDE THE SCOPE OF THE LICENSE GRANTED TO
LICENSEE IN THIS AGREEMENT.
4.2.4
ANY AND ALL SUBLICENSES GRANTED BY LICENSEE ARE
SUBJECT TO THE PRIOR APPROVAL OF LICENSOR AND UNIVERSITY; SUCH APPROVAL WILL NOT
BE UNREASONABLY WITHHELD, DELAYED OR CONDITIONED, AND SHALL BE DEEMED GRANTED
UNLESS LICENSOR OR UNIVERSITY REASONABLY REPORT WITHIN 30 (THIRTY) BUSINESS DAYS
OF ITS RECEIPT OF SUCH SUBLICENSE THAT SUCH SUBLICENSE IS UNACCEPTABLE.
4.2.5
NO SUBLICENSEE SHALL HAVE THE POWER