DISCOVERIES AND IMPROVEMENTS CONCEIVED OR MADE BY MEDPACE WHILE PROVIDING SUCH
SERVICES TO VIVUS PURSUANT TO THE AGREEMENT AND CONSTITUTING A MODIFICATION OR
EXTENSION OF USE RELATING TO VIVUS'S PROPRIETARY RIGHTS, AND
9
AGREES TO ASSIGN ALL ITS INTEREST THEREIN TO VIVUS OR ITS NOMINEE; WHENEVER
REQUESTED TO DO SO BY VIVUS, MEDPACE SHALL EXECUTE ANY AND ALL APPLICATIONS,
ASSIGNMENTS, OR OTHER INSTRUMENTS AND GIVE TESTIMONY WHICH VIVUS SHALL DEEM
NECESSARY TO APPLY FOR AND OBTAIN A PATENT IN THE UNITED STATES OF AMERICA
AND/OR OTHER APPLICABLE JURISDICTION OR OF ANY FOREIGN COUNTRY OR TO PROTECT
OTHERWISE VIVUS'S INTERESTS AND SHALL COMPENSATE MEDPACE FOR THE TIME DEVOTED TO
SAID ACTIVITIES AND REIMBURSE IT FOR EXPENSES INCURRED.
11.
PUBLICITY
11.1.
MEDPACE SHALL NOT MAKE ANY PUBLIC ANNOUNCEMENTS CONCERNING THIS
AGREEMENT OR THE SUBJECT MATTER HEREOF WITHOUT THE PRIOR WRITTEN CONSENT OF
VIVUS.
11.2
VIVUS may not use MEDPACE's name, logo or trademark in any
communication, release, notice or other publication without the express prior
written consent of MEDPACE, except as required by SEC.
12.
SECURITY AND DISPOSITION OF STUDY FILES
12.1.
MEDPACE SHALL USE COMMERCIALLY REASONABLE EFFORTS, INCLUDING, BUT
NOT LIMITED TO, PERIODIC BACKUP OF COMPUTER FILES, TO PREVENT THE LOSS OR
ALTERATION OF VIVUS'S STUDY DATA, CONFIDENTIAL INFORMATION, DOCUMENTATION, AND
CORRESPONDENCE.
MEDPACE SHALL IN ALL RESPECTS COMPLY WITH ANY FOOD AND DRUG
ADMINISTRATION REGULATIONS CONCERNING THE MAINTENANCE, CREATION AND STORAGE OF
RECORDS, INCLUDING ELECTRONIC RECORDS.
12.2.
AT APPROPRIATE TIME POINTS OR AT COMPLETION OF SERVICES UNDER A
TASK ORDER, MEDPACE SHALL TRANSFER STUDY MATERIALS, DOCUMENTS AND CORRESPONDENCE
TO VIVUS.
MEDPACE SHALL HAVE THE RIGHT TO RETAIN ONE COPY OF ANY STUDY
MATERIALS, DOCUMENTATION, AND CORRESPONDENCE NECESSARY SOLELY TO MEET REGULATORY
OR MEDPACE'S OWN INTERNAL AUDIT REQUIREMENTS, SO LONG AS IT CONTINUES TO
MAINTAIN THE CONFIDENTIALITY REQUIREMENTS OF ARTICLE 8.
13.
VIVUS OBLIGATIONS
13.1.
VIVUS ACKNOWLEDGES THAT PERFORMANCE OF THE SERVICES BY MEDPACE WILL
REQUIRE THE CO-OPERATIVE INVOLVEMENT OF BOTH PARTIES, AND VIVUS HEREBY AGREES TO
PROVIDE SUCH ASSISTANCE AS MAY BE REASONABLY NECESSARY TO ENABLE MEDPACE TO
PERFORM THE SERVICES.
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14.
INDEMNIFICATION
14.1
INDEMNIFICATION BY VIVUS
VIVUS AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS MEDPACE, AND EACH OFFICER,
AGENT, EMPLOYEE AND CONTRACTOR OF MEDPACE (MEDPACE AND EACH SUCH PARTY, A
"MEDPACE INDEMNITEE") FROM ANY AND ALL LIABILITY, LOSS, EXPENSES (INCLUDING
REASONABLE ATTORNEYS' FEES) OR DAMAGE SUCH MEDPACE INDEMNITEE MAY SUFFER
("DAMAGES") AS THE RESULT OF ANY CLAIM, DEMAND, COST OR JUDGMENT AGAINST THEM
ARISING OUT OF THE SERVICES TO BE PERFORMED PURSUANT TO EACH TASK ORDER WHICH
ARISE, OR ARE ALLEGED TO ARISE, EXCEPT AS FOLLOWS:
(i)
A Medpace Indemnitee shall not be entitled to indemnification
hereunder to the extent such Damages are the result of the negligence or willful
misconduct of such MEDPACE Indemnitee (provided all Medpace Indemnitees who are
not negligent or guilty of willful misconduct causing such Damages shall still
be entitled to the indemnification hereunder notwithstanding the negligence or
willful misconduct of such other Medpace Indemnitee); or
(ii)
A Medpace Indemnitee shall not