a copy to:
Michael K. Plimack
Heller Ehrman LLP
333 Bush Street
San Francisco, CA
94104-2878
Facsimile:
(415) 772-2021
If to TEVA:
Richard Egosi
Senior Vice President and General Counsel
Teva North America
425 Privet Rd.
Horsham, PA 19044
Facsimile:
(215) 293-6499
With a copy to:
John L. North
Sutherland, Asbill & Brennan LLP
999 Peachtree Street, NE
Atlanta, GA
30309-3996
Facsimile:
(404) 853-8806
8.2
DEEMED SERVICE. SUCH NOTICES SHALL BE DEEMED TO HAVE BEEN SERVED
WHEN RECEIVED BY ADDRESSEE OR, IF DELIVERY IS NOT ACCOMPLISHED BY REASON OF SOME
FAULT OF THE ADDRESSEE, WHEN TENDERED FOR DELIVERY.
ANY PARTY MAY GIVE WRITTEN
NOTICE OF A CHANGE OF ADDRESS AND, AFTER NOTICE OF SUCH CHANGE HAS BEEN
RECEIVED, ANY NOTICE SHALL THEREAFTER BE GIVEN TO SUCH PARTY AS ABOVE PROVIDED
AT SUCH CHANGED ADDRESS.
11
9.
INDEPENDENT CONTRACTOR
9.1
EACH PARTY IS AN INDEPENDENT CONTRACTOR AND HAS NO POWER, AND WILL
NOT REPRESENT THAT IT HAS ANY POWER, TO BIND ANY OTHER PARTY OR TO ASSUME OR
CREATE ANY OBLIGATION OR RESPONSIBILITY ON BEHALF OF ANY OTHER PARTY.
NOTHING
IN THIS AGREEMENT SHALL BE DEEMED TO CREATE ANY PARTNERSHIP, JOINT VENTURE OR
FRANCHISE RELATIONSHIP AMONG THE PARTIES.
10.
GENERAL PROVISIONS.
10.1
PATENT MARKING.
TEVA SHALL USE COMMERCIALLY REASONABLE EFFORTS TO
MARK, WITHIN THE MEANING OF 35 U.S.C. 287, ALL LICENSED PRODUCTS WITH THE
NUMBERS OF THE LICENSED PATENTS (AS SOON AS PRACTICABLE AFTER THE EFFECTIVE
DATE).
DEPOMED WILL PROVIDE TEVA WITH THE NUMBERS OF ANY LICENSED PATENTS THAT
ISSUE SUBSEQUENT TO THE EFFECTIVE DATE AND TEVA SHALL USE COMMERCIALLY
REASONABLE EFFORTS TO AMEND ITS MARKING ACCORDINGLY AS SOON AS PRACTICABLE
THEREAFTER.
NOTWITHSTANDING THE FOREGOING, TEVA'S OBLIGATIONS UNDER THIS
SECTION 10.1 WILL NOT BE ENFORCED UNLESS DEPOMED SHALL ALSO USE COMMERCIALLY
REASONABLE EFFORTS TO MARK, OR CAUSE TO BE MARKED, WITHIN THE MEANING OF 35
U.S.C. 287, ALL DEPOMED AND THIRD PARTY PRODUCTS (OTHER THAN GLUCOPHAGE XR®)
COVERED BY OR LICENSED UNDER THE LICENSED PATENTS.
10.2
ENTIRE AGREEMENT.
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT
AND UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO ITS SUBJECT MATTER
AND TERMINATES AND SUPERSEDES ANY PRIOR OR CONTEMPORANEOUS AGREEMENTS OR
UNDERSTANDINGS RELATING TO SUCH SUBJECT MATTER.
NONE OF THE PROVISIONS OF THIS
AGREEMENT MAY BE WAIVED OR MODIFIED EXCEPT IN WRITING SIGNED BY THE
12
PARTIES, AND THERE ARE NO REPRESENTATIONS, PROMISES, AGREEMENTS, WARRANTIES,
COVENANTS OR UNDERTAKINGS OTHER THAN THOSE CONTAINED HEREIN.
10.3
NO WAIVER.
NO DELAY OR OMISSION ON THE PART OF ANY PARTY TO THIS
AGREEMENT IN REQUIRING PERFORMANCE BY ANOTHER PARTY OR IN EXERCISING ANY RIGHT
HEREUNDER SHALL OPERATE AS A WAIVER OF ANY PROVISION HEREOF OR OF ANY RIGHT OR
RIGHTS HEREUNDER, AND THE WAIVER, OMISSION OR DELAY IN REQUIRING PERFORMANCE OR
EXERCISING ANY RIGHT HEREUNDER ON ANY ONE OCCASION SHALL NOT BE CONSTRUED AS A
BAR TO OR WAIVER OF SUCH PERFORMANCE OR RIGHT, OR OF ANY RIGHT OR REMEDY UNDER
THIS AGREEMENT.
10.4
ATTORNEYS' FEES.
IN THE EVENT OF ANY ACTION TO ENFORCE THIS
AGREEMENT OR ON