OF
THE DISPUTE AND IMPLEMENTATION OF THE SETTLEMENT OF THE DISPUTE WILL APPLY.
EACH PARTY WILL IMMEDIATELY NOTIFY THE OTHER PARTY OF ANY DECLARATORY JUDGMENT
ACTION FILED BY A THIRD PARTY CLAIMING THAT A PATENT RIGHT INCLUDED WITHIN THE
TECHNOLOGY IS INVALID OR THAT INFRINGEMENT OF SUCH PATENT RIGHT WILL NOT ARISE
FROM THE DEVELOPMENT, MANUFACTURE, USE OR SALE OF ANY PRODUCT BY A THIRD PARTY.
THE PROVISIONS OF SECTION 12.3 WILL THEREAFTER APPLY AS IF SUCH THIRD PARTY WERE
AN INFRINGER OR SUSPECTED INFRINGER.
12.5
PROSECUTION AND ENFORCEMENT OF OTHER INTELLECTUAL PROPERTY
RIGHTS.
OTHER THAN AS PROVIDED IN THIS ARTICLE 12, EACH PARTY WILL BE SOLELY
RESPONSIBLE FOR PROSECUTING, MAINTAINING AND ENFORCING ITS PATENT RIGHTS AND
OTHER INTELLECTUAL PROPERTY RIGHTS, AT ITS SOLE DISCRETION [********].
12.6
CROSS LICENSE AGREEMENT.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THE CROSS LICENSE AGREEMENT, THE PARTIES AGREE THAT AFTER THE
CLOSING DATE, (A) SECTIONS 5.4 AND 5.7 OF THE CROSS LICENSE AGREEMENT WILL NOT
APPLY TO ANY EXACT PATENT RIGHTS (AS DEFINED IN THE CROSS LICENSE AGREEMENT)
THAT ARE INCLUDED IN THE TECHNOLOGY, AND THIS ARTICLE 12 WILL GOVERN THE RIGHTS
AND OBLIGATIONS OF EXACT AND GENZYME WITH RESPECT TO THE PROSECUTION AND
ENFORCEMENT OF SUCH EXACT PATENT RIGHTS AND (B) TO THE EXTENT THAT EXACT IS
OBLIGATED TO LICENSE EXACT PATENT RIGHTS INCLUDED IN THE TRANSFERRED TECHNOLOGY
TO GENZYME UNDER THE CROSS LICENSE AGREEMENT OUTSIDE OF THE EXACT FIELD, SUCH
FIELD SCOPE IS NO LONGER LICENSED BY EXACT TO GENZYME THEREUNDER BUT RATHER
RETAINED BY GENZYME AS THE OWNER OF SUCH EXACT PATENT RIGHTS.
12.7
TERMINATION OF RIGHTS AND OBLIGATIONS UNDER ARTICLE 12.
IF
EITHER PARTY TERMINATES A LICENSE GRANTED UNDER THIS AGREEMENT PURSUANT TO
SECTION 3.7, THEN THE TERMINATING PARTY WILL CEASE TO HAVE ANY OBLIGATIONS UNDER
THIS ARTICLE 12, AND THE OTHER PARTY WILL CEASE TO HAVE ANY RIGHTS UNDER THIS
ARTICLE 12, WITH RESPECT TO THE INTELLECTUAL PROPERTY RIGHTS THAT WERE THE
SUBJECT OF SUCH TERMINATED LICENSE.
Article 13
Confidentiality.
13.1
CONFIDENTIALITY.
EXCEPT TO THE EXTENT EXPRESSLY AUTHORIZED BY
THIS AGREEMENT OR OTHERWISE AGREED BY GENZYME AND EXACT IN WRITING, EACH PARTY
(THE "RECEIVING PARTY") RECEIVING ANY CONFIDENTIAL INFORMATION OF THE OTHER
PARTY (THE "DISCLOSING PARTY") WILL KEEP SUCH CONFIDENTIAL INFORMATION
CONFIDENTIAL AND WILL NOT PUBLISH OR OTHERWISE DISCLOSE OR USE SUCH CONFIDENTIAL
INFORMATION FOR ANY PURPOSE OTHER THAN AS PROVIDED FOR IN THIS AGREEMENT
(INCLUDING PURSUANT TO LICENSES GRANTED UNDER ARTICLE 3).
THE INFORMATION
INCLUDED WITHIN THE PURCHASED ASSETS AND TRANSFERRED TECHNOLOGY WILL BE
CONSIDERED AFTER THE CLOSING DATE THE CONFIDENTIAL INFORMATION OF GENZYME FOR
THE PURPOSES OF THIS AGREEMENT AND GENZYME WILL BE CONSIDERED THE DISCLOSING
PARTY WITH RESPECT THERETO.
NOTWITHSTANDING THE
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.
38
FOREGOING, THE RECEIVING PARTY WILL NOT HAVE ANY OBLIGATION UNDER THIS SECTION
13.1 WITH RESPECT TO CONFIDENTIAL INFORMATION THAT