MATERIALS THAT HAVE NOT EXPIRED
IN CONNECTION WITH ITS PROMOTION OF THE PRODUCT UNDER THIS AGREEMENT; PROVIDED
THAT SUCH REPRODUCTION IS (I) IN THE SAME FORM, AND OF THE SAME NATURE AND
QUALITY, AS THE ORIGINAL PROMOTIONAL MATERIALS, OR (II) DONE IN A MANNER AGREED
BY ASTRAZENECA IN WRITING (PROVIDED THAT
*Confidential Treatment Requested.
Omitted portions filed separately with the
Commission.
25
IF ASTRAZENECA'S ALLIANCE MANAGER RECEIVES A WRITTEN REQUEST FROM CUBIST,
ASTRAZENECA SHALL NOTIFY CUBIST IN WRITING WITHIN TEN (10) BUSINESS DAYS AFTER
ASTRAZENECA'S ALLIANCE MANAGER RECEIVES SUCH REQUEST AS TO WHETHER OR NOT
ASTRAZENECA APPROVES THE PROPOSED REPRODUCTION AND IF ASTRAZENECA DOES NOT
RESPOND WITHIN SUCH TEN (10) BUSINESS DAY PERIOD, THEN ASTRAZENECA SHALL BE
DEEMED TO HAVE APPROVED SUCH REPRODUCTION).
CUBIST SHALL NOT CHANGE OR
OTHERWISE ALTER THE PROMOTIONAL MATERIALS IN ANY WAY (INCLUDING BY UNDERLINING
OR OTHERWISE HIGHLIGHTING ANY TEXT OR GRAPHICS OR ADDING ANY NOTES THERETO).
ASTRAZENECA HEREBY GRANTS CUBIST A NON-EXCLUSIVE, ROYALTY-FREE LICENSE UNDER ALL
COPYRIGHTS OWNED OR CONTROLLED BY ASTRAZENECA OR ITS AFFILIATES THAT COVER THE
PROMOTIONAL MATERIALS AND ALL OTHER MATERIALS PROVIDED BY ASTRAZENECA OR ITS
AFFILIATES TO CUBIST IN CONNECTION WITH THE PRODUCT SOLELY FOR THE PURPOSE OF
COPYING, DISPLAYING AND DISTRIBUTING SUCH PROMOTIONAL MATERIALS OR OTHER
MATERIALS, TO THE EXTENT THAT SUCH COPYING, DISPLAYING AND DISTRIBUTING IS
PERMITTED HEREUNDER, FOR THE PURPOSE OF SATISFYING CUBIST'S OBLIGATIONS
HEREUNDER, WHICH LICENSE SHALL AUTOMATICALLY AND IMMEDIATELY TERMINATE UPON THE
EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT FOR ANY REASON AND SHALL BE
NON-TRANSFERABLE (EXCEPT THROUGH A PERMITTED ASSIGNMENT OF THIS AGREEMENT) AND
NON-SUBLICENSABLE.
(H)
IF ANY MEMBER OF THE SALES FORCE LEAVES THE SALES FORCE, CUBIST
SHALL USE REASONABLE EFFORTS TO RETRIEVE FROM SUCH PERSON, OR HAVE DESTROYED,
ALL PROMOTIONAL MATERIALS IN HIS OR HER POSSESSION AND FOR ANY PROMOTIONAL
MATERIALS RETRIEVED FROM SUCH DEPARTING MEMBER OF THE SALES FORCE THAT HAVE NOT
YET EXPIRED, CUBIST SHALL PROVIDE SUCH PROMOTIONAL MATERIALS TO ANOTHER MEMBER
OF THE SALES FORCE.
(I)
NOTWITHSTANDING ANYTHING IN THIS SECTION 3.5 TO THE CONTRARY,
ASTRAZENECA SHALL HAVE THE SOLE RIGHT AND RESPONSIBILITY []* TO DEVELOP, PRODUCE
AND PROVIDE TO CUBIST REMINDER ITEMS WITH RESPECT TO THE PRODUCT (AND
ASTRAZENECA SHALL ENSURE THAT SUCH REMINDER ITEMS COMPLY WITH APPLICABLE LAW,
[]* (TO THE EXTENT CONSISTENT WITH APPLICABLE LAW AND THIS AGREEMENT) AND THE
REQUIREMENTS OF THIS AGREEMENT), FOR DISTRIBUTION TO TARGET PRESCRIBERS IN
QUANTITIES THAT ARE DETERMINED BY ASTRAZENECA IN ITS SOLE DISCRETION.
(J)
CUBIST SHALL NOT USE ANY WRITTEN, PRINTED, ELECTRONIC OR
GRAPHIC MATERIAL TO PROMOTE THE PRODUCT DURING A DETAIL OTHER THAN (I) THE
PRODUCT LABELS AND INSERTS, (II) PROMOTIONAL MATERIALS (INCLUDING REMINDER
ITEMS) (AS PROVIDED BY ASTRAZENECA OR ITS AFFILIATES, OR, IF APPLICABLE,
REPRODUCED BY CUBIST) OR (III) OTHER MATERIALS APPROVED BY ASTRAZENECA IN
WRITING FOR USE IN DETAILS (PROVIDED THAT IF CUBIST SUBMITS ANY SUCH MATERIALS
TO ASTRAZENECA'S ALLIANCE MANAGER FOR ASTRAZENECA'S REVIEW AND APPROVAL,
ASTRAZENECA SHALL NOTIFY CUBIST IN WRITING WITHIN TEN (10) BUSINESS DAYS AFTER
ASTRAZENECA'S ALLIANCE MANAGER RECEIVES
SUCH SUBMISSION AS