THE AMOUNTS PAYABLE TO ARRAY UNDER SECTIONS 5.2.1 AND
5.2.2 UPON ACHIEVEMENT OF DEVELOPMENT MILESTONES SHALL BE [*] PROVIDED THAT ONO
SHALL BE REQUIRED TO PAY DEVELOPMENT MILESTONE ONLY FOR COLLABORATION PRODUCTS
[*] CLAIMED IN AN UNABANDONED COLLABORATION PATENT OWNED BY ARRAY COVERING THE
COMPOSITION OF MATTER, A METHOD OF MANUFACTURE OR THE USE OF SUCH COLLABORATION
PRODUCT.
FOR THE AVOIDANCE OF DOUBT, ONO SHALL NOT BE REQUIRED TO PAY [*].
11.7.5
SECTION 5.3 SHALL BE AMENDED [*]:
25
5.3
Royalties.
ONO shall pay ARRAY a royalty of [*] on the worldwide Net Sales
by ONO, its Affiliates or Sublicensees of each Collaboration Product [*].
Such
royalties shall be paid on a country-by-country basis from the date of the first
commercial sale of each such Collaboration Product with respect to which royalty
payments are due until the expiration of the last to expire the Collaboration
Patent owned by ARRAY in such country covering the composition of matter, a
method of manufacture or the use of such [*].
It is understood and agreed that
no royalty shall be due on sales of [*].
11.7.6
IT IS ACKNOWLEDGED AND AGREED BY THE PARTIES THAT EACH
PARTY SHALL BE RELIEVED FROM [*] UPON [*] OF [*] PURSUANT TO [*] AND EACH PARTY
SHALL HAVE THE RIGHT [*].
ARTICLE 12
MISCELLANEOUS
12.1
GOVERNING LAWS.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED, AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF COLORADO, WITHOUT REFERENCE TO CONFLICTS OF LAWS
PRINCIPLES.
12.2
WAIVER.
IT IS AGREED
THAT NO WAIVER BY EITHER PARTY HERETO OF ANY BREACH OR DEFAULT OF ANY OF THE
COVENANTS OR AGREEMENTS HEREIN SET FORTH SHALL BE DEEMED A WAIVER AS TO ANY
SUBSEQUENT AND/OR SIMILAR BREACH OR DEFAULT.
12.3
ASSIGNMENT.
THIS
AGREEMENT SHALL NOT BE ASSIGNABLE BY EITHER PARTY TO ANY THIRD PARTY HERETO
WITHOUT THE WRITTEN CONSENT OF THE OTHER PARTY HERETO.
NOTWITHSTANDING THE
FOREGOING, EITHER PARTY MAY ASSIGN THIS AGREEMENT, WITHOUT SUCH CONSENT, TO AN
ENTITY THAT ACQUIRES ALL OR SUBSTANTIALLY ALL OF THE BUSINESS OR ASSETS OF SUCH
PARTY TO WHICH THIS AGREEMENT PERTAINS, WHETHER BY MERGER, REORGANIZATION,
ACQUISITION, SALE, OR OTHERWISE; PROVIDED, HOWEVER, THAT WITHIN THIRTY (30) DAYS
OF SUCH AN ASSIGNMENT, THE ASSIGNEE SHALL AGREE IN WRITING TO BE BOUND BY THE
TERMS AND CONDITIONS OF THIS AGREEMENT.
THIS AGREEMENT SHALL BE BINDING UPON
AND INURE TO THE BENEFIT OF ANY PERMITTED ASSIGNEE, AND ANY SUCH ASSIGNEE SHALL
AGREE TO PERFORM THE OBLIGATIONS OF THE ASSIGNOR.
12.4
INDEPENDENT CONTRACTORS.
THE RELATIONSHIP OF THE PARTIES HERETO IS THAT OF INDEPENDENT CONTRACTORS.
THE
PARTIES HERETO ARE NOT DEEMED TO BE AGENTS, PARTNERS OR JOINT VENTURERS OF THE
OTHERS FOR ANY PURPOSE AS A RESULT OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED THEREBY.
12.5
COMPLIANCE WITH LAWS.
IN
EXERCISING THEIR RIGHTS UNDER THIS LICENSE, THE PARTIES SHALL FULLY COMPLY IN
ALL MATERIAL RESPECTS WITH THE REQUIREMENTS OF ANY AND ALL APPLICABLE LAWS,
REGULATIONS, RULES AND ORDERS OF ANY GOVERNMENTAL BODY HAVING JURISDICTION OVER
THE EXERCISE OF RIGHTS