DISCOUNT
THE SALES PRICE OF THE PRODUCT TO A GREATER DEGREE THAN GSK OR ITS AFFILIATE
DISCOUNTS THE PRICE OF THEIR OTHER PRODUCTS OR SERVICES TO SUCH CUSTOMER THEN,
IN SUCH CASE, THE NET SALES FOR THE SALE OF THE PRODUCT TO SUCH THIRD PARTY
SHALL BE DEEMED
CONFIDENTIAL
TO EQUAL THE ARM'S LENGTH PRICE THAT THIRD PARTIES WOULD GENERALLY PAY FOR THE
PRODUCT ALONE WHEN NOT PURCHASING ANY OTHER PRODUCT OR SERVICE FROM GSK OR ITS
AFFILIATE.
7.5.
THIRD PARTY LICENSES
(A)
IF EITHER PARTY DEEMS IT NECESSARY OR ADVISABLE TO OBTAIN A
LICENSE, OR OTHER RIGHTS TO ANY PATENT WHICH MAY BE OR HAVE THE POTENTIAL OF
BEING A BLOCKING PATENT(S), SUCH PARTY SHALL NOTIFY THE OTHER PARTY IN WRITING.
IF THE OTHER PARTY AGREES, THEN THE PARTIES SHALL DISCUSS IN GOOD FAITH THE
PROCEDURE BY WHICH THE PARTIES WILL SEEK TO OBTAIN SUCH LICENSE OR OTHER RIGHTS.
THE COSTS PAID TO A THIRD PARTY (INCLUDING ROYALTIES, UPFRONT, INITIAL,
MILESTONES AND PERIODIC PAYMENTS) ASSOCIATED WITH OBTAINING SUCH LICENSE OR
OTHER RIGHTS IN RELATION TO THE GSK TERRITORY SHALL BE SHARED EQUALLY BY THE
PARTIES.
(B)
IF THE OTHER PARTY DISAGREES WITH THE INITIAL ASSESSMENT THAT IT
IS NECESSARY OR ADVISABLE TO OBTAIN SUCH LICENSE OR RIGHTS TO ANY PATENT
REFERRED TO IN SECTION 7.5(A), THE PARTY DESIRING THE LICENSE SHALL OBTAIN AN
OPINION OF INDEPENDENT PATENT COUNSEL APPROVED BY THE OTHER PARTY (SUCH APPROVAL
NOT TO BE UNREASONABLY WITHHELD OR DELAYED) TO REVIEW INFRINGEMENT, VALIDITY AND
ENFORCEABILITY OF THE PATENT(S) AND THE CONCLUSIONS CONTAINED IN SUCH OPINION
SHALL BE BINDING ON BOTH PARTIES. IN THE EVENT THAT IN THE OPINION OF SUCH
INDEPENDENT PATENT COUNSEL THE IDENTIFIED PATENT(S) MAY REASONABLY BE EXPECTED
TO BE HELD IN SUBSEQUENT LEGAL PROCEEDINGS TO BE INFRINGED, VALID AND
ENFORCEABLE BY ANY ONE OF THE ACTIVITIES LICENSED HEREUNDER TO GSK, THEN THE
PARTIES SHALL IMMEDIATELY PROCEED IN THE MANNER PROVIDED IN SECTION 7.5(A) AS IF
BOTH PARTIES HAD INITIALLY AGREED TO SEEK THE LICENSE OR OTHER RIGHTS. THE FEES,
COSTS AND EXPENSES OF THE ABOVE INDEPENDENT PATENT COUNSEL INCURRED IN
CONNECTION WITH THIS SECTION 7.5(B) SHALL BE [**].
7.6.
THIRD PARTY TECHNOLOGY. IF AFTER THE EFFECTIVE DATE
SEPRACOR OR ANY OF ITS AFFILIATES ACQUIRES AN ASSIGNMENT OF, OR LICENSE UNDER,
THIRD PARTY TECHNOLOGY (OTHER THAN PATENTS LICENSED OR OTHERWISE ACQUIRED
PURSUANT TO SECTION 7.5) FOR USE IN CONNECTION WITH THE RESEARCH, DEVELOPMENT,
COMMERCIALIZATION OR MANUFACTURE OF THE PRODUCT IN OR FOR THE GSK TERRITORY,
THEN SEPRACOR WILL PROMPTLY PROVIDE GSK WITH WRITTEN NOTICE OF SUCH ACQUISITION
AND ANY ADDITIONAL FINANCIAL TERMS TO WHICH SEPRACOR WOULD BE SUBJECT IF GSK
WERE TO EXPLOIT A LICENSE UNDER SUCH THIRD PARTY TECHNOLOGY. IF GSK DESIRES TO
OBTAIN SUCH LICENSE, THE PARTIES WILL PROMPTLY AMEND THIS AGREEMENT TO REFLECT
SUCH ADDITIONAL FINANCIAL TERMS AND TO PROVIDE THAT THE APPLICABLE PATENTS,
KNOW-HOW, DATA, OR FILINGS WILL BE INCLUDED IN THE DEFINITION OF SEPRACOR
TECHNOLOGY UNDER THIS AGREEMENT. FOR THE AVOIDANCE OF DOUBT, IF GSK DOES NOT
DESIRE