RIGHTS AND RESPONSIBILITIES SHALL BE AS SET
FORTH IN SECTION 3.4.
5.8
DEVELOPMENT AND USE OF TRADEMARKS.
THE JCC SHALL SELECT ALL
COMBINATION PRODUCT TRADEMARKS, WHICH SHALL BE OWNED BY THE JV.
SUBJECT TO
APPLICABLE LAW, THE JV SHALL INCLUDE A TRADEMARK AND THE NAME OF EACH OF GILEAD
PARENT AND BMS PARENT ON THE LABELING, PACKAGING AND ADVERTISING MATERIALS FOR
THE COMBINATION PRODUCT IN THE TERRITORY.
THE JV SHALL COMPLY WITH ALL NOTICE
AND MARKING REQUIREMENTS OF APPLICABLE INTELLECTUAL PROPERTY LAW FOR THE
PROTECTION AND ENFORCEMENT OF THE TRADEMARKS OF THE JV, GILEAD AND BMS, UNLESS
SUCH NOTICE AND MARKING REQUIREMENTS ARE NOT COMMERCIALLY REASONABLE UNDER THE
CIRCUMSTANCES.
5.9
INSURANCE.
THE MEMBER PARTIES AGREE THAT THE JV WILL [*].
FURTHER, NEITHER MEMBER PARTY SHALL HAVE ANY OBLIGATION TO [*].
IN THE EVENT
THAT EITHER MEMBER PARTY ELECTS TO [*] ARISING OUT OF THE EXPLOITATION OF THE
COMBINATION PRODUCT, THE MEMBER PARTY [*] SHALL HAVE THE SOLE RIGHT TO [*].
FOR
THE AVOIDANCE OF DOUBT, NOTHING CONTAINED IN THIS SECTION 5.9 IS INTENDED, OR
SHALL BE CONSTRUED, TO LIMIT A MEMBER PARTY'S (OR THE JV'S) INDEMNITY
OBLIGATIONS PURSUANT TO SECTION 13.
5.10
RECORDS.
(A)
MAINTENANCE OF RECORDS.
GILEAD AND BMS EACH SHALL SEVERALLY (IN
ACCORDANCE WITH THEIR RESPECTIVE ALLOCATIONS OF RESPONSIBILITY WITH RESPECT TO
PROJECT ACTIVITIES) MAINTAIN AND RETAIN, OR CAUSE TO BE MAINTAINED AND RETAINED,
FINAL RECORDS (BUT NOT DRAFT RECORDS OR DOCUMENTS EXCEPT AS OTHERWISE REQUIRED
BY APPLICABLE LAW) OF ITS RESPECTIVE COMMERCIALIZATION ACTIVITIES COVERED IN THE
COMMERCIALIZATION PLAN FOR AT LEAST (I) THREE (3) YEARS OR (II) SUCH LONGER
PERIOD AS MAY BE REQUIRED BY APPLICABLE LAW.
(B)
ACCESS TO RECORDS.
SUBJECT TO THIS SECTION 5.10(B), EACH MEMBER
PARTY SHALL HAVE THE RIGHT, WITH RESPECT TO RECORDS MAINTAINED BY THE OTHER
MEMBER PARTY OF SUCH OTHER MEMBER PARTY'S COMMERCIALIZATION ACTIVITIES COVERED
IN THE COMMERCIALIZATION PLAN, DURING NORMAL BUSINESS HOURS AND UPON REASONABLE
NOTICE, TO INSPECT AND COPY ANY SUCH RECORDS SOLELY TO THE EXTENT RELATING TO
THE COMBINATION PRODUCT AND SOLELY TO THE EXTENT (I) NECESSARY IN ORDER FOR THE
RECEIVING MEMBER PARTY TO PERFORM ITS OBLIGATIONS WITH RESPECT TO
COMMERCIALIZATION ACTIVITIES IN A MANNER CONSISTENT WITH THE COMMERCIALIZATION
PLAN, (II) NECESSARY FOR THE RECEIVING MEMBER PARTY TO CONFIRM COMPLIANCE WITH
AND/OR TO COMPLY WITH GLP, GCP AND GMP (TO THE EXTENT APPLICABLE), AND OTHER
APPLICABLE LAW, AS IT RELATES TO PROJECT ACTIVITIES, AND/OR (III) NECESSARY TO
ENABLE THE RECEIVING MEMBER PARTY TO CONDUCT REASONABLE DILIGENCE ON MATTERS
POTENTIALLY GIVING RISE TO LIABILITY ON THE PART OF THE JV AND/OR SUCH RECEIVING
49
MEMBER PARTY, OR TO CONDUCT A DEFENSE OF ITSELF AND/OR THE JV WITH RESPECT TO
ANY SUCH LIABILITY, IF AND TO THE EXTENT THAT A FACT, CIRCUMSTANCE OR EVENT HAS
ARISEN THAT GIVES THE RECEIVING MEMBER PARTY A REASONABLE BASIS TO BELIEVE THAT
IT OR THE JV HAS OR MAY INCUR SUCH LIABILITY, IN EACH CASE FOR USE BY THE
RECEIVING MEMBER PARTY FOR THE PURPOSE SET FORTH IN CLAUSE (I), (II) OR