to cease prosecution and/or maintenance of Patent Rights and,
in such case, may offer once to Vical to permit Vical, and Vical shall promptly
accept in writing in Vical's sole discretion, to continue prosecution or
maintenance at its own expense.
If Vical elects to continue prosecution or
maintenance or file based on Company's election not to file, Vical shall do so
at its sole expense.
Upon Vical's election to continue prosecution or
maintenance of the Patent Rights, Valentis shall cooperate execute such
documents and perform such acts at Valentis' expense as may be reasonably
necessary for Vical to perform such prosecution or maintenance or filing.
5
Vical agrees to indemnify, defend and hold Valentis and its directors, officers,
shareholders, employees, contractors and agents harmless from and against any
and all liabilities, claims, demands, expenses (including, without limitation,
attorneys and professional fees and other costs of litigation), losses or causes
of action (each, whether by a Third Party, Vical, a "Liability") arising out of
(i) the possession, manufacture, use, sale or other disposition of Vical
Products, whether based on breach of warranty, negligence, product liability or
otherwise; (ii) the use by Vical of the Licensed Technology; (iii) any breach of
a warranty, representation or covenant granted to Valentis hereunder; or (iv)
the exercise of any right granted to Vical, pursuant to this Agreement.
ARTICLE 8.
TERM AND TERMINATION
8.1
TERM.
THE TERM OF THIS AGREEMENT WILL COMMENCE ON THE EFFECTIVE
DATE AND REMAIN IN FULL FORCE AND EFFECT UNTIL THE EXPIRATION OF THE LAST OF THE
PATENTS, UNLESS EARLIER TERMINATED IN ACCORDANCE WITH THIS ARTICLE 8.
8.2
TERMINATION FOR CAUSE.
(A)
EITHER PARTY MAY TERMINATE THIS AGREEMENT IN THE EVENT THE OTHER
PARTY HAS MATERIALLY BREACHED OR DEFAULTED IN THE PERFORMANCE OF ANY OF ITS
OBLIGATIONS HEREUNDER, AND SUCH DEFAULT HAS CONTINUED FOR THIRTY (30) DAYS AFTER
WRITTEN NOTICE THEREOF WAS PROVIDED TO THE BREACHING PARTY BY THE NON-BREACHING
PARTY.
ANY TERMINATION SHALL BECOME EFFECTIVE AT THE END OF SUCH THIRTY (30)
DAY PERIOD UNLESS THE BREACHING PARTY HAS CURED ANY SUCH BREACH OR DEFAULT PRIOR
TO THE EXPIRATION OF SUCH PERIOD.
8.3
EFFECT OF TERMINATION.
(A)
ACCRUED RIGHTS AND OBLIGATIONS.
TERMINATION OF THIS AGREEMENT FOR
ANY REASON SHALL NOT RELEASE ANY PARTY HERETO FROM ANY LIABILITY WHICH, AT THE
TIME OF SUCH TERMINATION, HAS ALREADY ACCRUED TO THE OTHER PARTY OR WHICH IS
ATTRIBUTABLE TO A PERIOD PRIOR TO SUCH TERMINATION NOR PRECLUDE EITHER PARTY
FROM PURSUING ANY RIGHTS AND REMEDIES IT MAY HAVE HEREUNDER OR AT LAW OR IN
EQUITY WITH RESPECT TO ANY BREACH OF THIS AGREEMENT.
IT IS UNDERSTOOD AND
AGREED THAT MONETARY DAMAGES MAY NOT BE A SUFFICIENT REMEDY FOR ANY BREACH OF
THIS AGREEMENT AND THAT THE NONBREACHING PARTY MAY BE ENTITLED TO INJUNCTIVE
RELIEF AS A REMEDY FOR ANY SUCH BREACH. SUCH REMEDY SHALL NOT BE DEEMED TO BE
THE EXCLUSIVE REMEDY FOR ANY SUCH BREACH OF THIS AGREEMENT, BUT SHALL BE IN
ADDITION TO ALL OTHER REMEDIES AVAILABLE AT LAW OR IN