Provision Language
15. Term and termination
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15.2 Mutual termination rights. In addition to any other rights to terminate at law or as expressly provided in this Agreement, either Party may terminate this Agreement immediately (or on such date that it set out in the notice of termination) upon written notice to the other Party:
(A) Insolvency – if the other Party is affected by an insolvency or adjudication of bankruptcy, the filing of a voluntary petition in bankruptcy, the making of an assignment for the benefit of creditors, any substantial part of a Party’s assets coming under the jurisdiction of a receiver, administrator, liquidator, trustee or similar officer in an insolvency proceeding authorised by law or if proceedings are instituted against the other Party for winding up or reorganisation or other relief under any insolvency law. For the purposes of this Clause, “insolvency” means either the Party’s liabilities exceed its assets, each fairly stated; or the Party’s inability to pay its business obligations in the regular course of business;
(B) Material breach – if the other Party commits a material breach of any provision of this Agreement that is not capable of being remedied, or if capable of being remedied, fails to remedy such material breach within thirty (30) days following receipt of a written notice specifying the nature of the breach. For the avoidance of doubt, breaches of the following Clauses are, without limitation, deemed a material breach of the Agreement: Clauses 3 (Grant of Licence), 4 (Licensee Selection Process), 7 (Approval Requests), 12 (Compliance With Applicable Law and Ethical Business Practices), 13 (Confidentiality), and 18 (Exercise of rights by the MPPF under a Sublicence);
(C) Repeated breach – if the other Party repeatedly (meaning more than once) breaches any of the terms of this Agreement (whether or not those such breaches are material breaches); or
(D) Force Majeure – in accordance with Clause 17.
15.3 ViiV’s termination rights. ViiV may terminate this Agreement, in whole or in part, immediately (or on such date that it set out in the notice of termination) upon written notice to the MPPF if:
(A) Infringement of Third Party intellectual property – ViiV receives a Third Party claim that a Sublicensee’s use of any Patent Rights under a Sublicence infringes the intellectual property rights of a Third Party, unless all Sublicensees confirm in writing to ViiV that they will indemnify any and all Indemnified Person (as defined in Clause 9.2) against any and all Losses (as defined in Clause 9.2) in connection with the Sublicensees continued use of the Patent Rights pursuant to their Sublicences; or
(B) Ownership or control of the MPPF – the legal or beneficial ownership or control of the MPPF changes in such a manner as ViiV shall in its sole discretion consider significant. For the avoidance of doubt, MPPF securing new or different funders or donors shall not constitute a change of control of the MPPF under this Clause.
Schedule 2 – Form of Sublicense
21. TERM AND TERMINATION
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21.2 Mutual termination rights. In addition to any other rights to terminate at law or as expressly provided in this Agreement, either Party may terminate this Agreement immediately (or on such date that it set out in the notice of termination) upon written notice to the other Party:
21.1.1 Insolvency – if the other Party is affected by an insolvency or adjudication of bankruptcy, the filing of a voluntary petition in bankruptcy, the making of an assignment for the benefit of creditors, any substantial part of a Party’s assets coming under the jurisdiction of a receiver, administrator, liquidator, trustee or similar officer in an insolvency proceeding authorised by law or if proceedings are instituted against the other Party for winding up or reorganisation or other relief under any insolvency law. For the purposes of this Clause, “insolvency” means either the Party’s liabilities exceed its assets, each fairly stated; or the Party’s inability to pay its business obligations in the regular course of business; or
21.1.2 Force Majeure – in accordance with Clause 23.
21.3 Licensee termination rights. The Licensee may terminate this Agreement at any time by providing thirty (30) days’ written notice to the Licensor.
21.4 Licensor termination rights. The Licensor may terminate this Agreement, in whole or in part, immediately (or on such date that is set out in the notice of termination) upon written notice to the Licensee if:
21.4.1 Material breach – the Licensee commits a material breach of any provision of this Agreement that is not capable of being remedied, or if capable of being remedied, fails to remedy such material breach within thirty (30) days following receipt of a written notice specifying the nature of the breach. For the avoidance of doubt, breaches of the following Clauses are, without limitation, deemed material breaches of the Agreement: Clauses 4 (Development, Registration and Commercialisation), 6 (Selective Waiver Letter), 9 (Royalties), 10 (Non-Diversion), 13 (Pharmacovigilance Pharmacovigilance), and 20 (Compliance with Applicable Law and Ethical Business Practices);
21.4.2 Repeated breach – the Licensee repeatedly and/or persistently (meaning more than once) breaches this Agreement (whether or not such breaches is or are material);
21.4.3 Infringement of Third Party intellectual property – the Licensor or ViiV receives a Third Party claim that the Licensee’s use of any Patent Rights under this Agreement infringes the intellectual property rights of a Third Party, unless the Licensee confirm in writing that it will indemnify any and all Indemnified Persons (as defined in Clause 17.1) against any and all Losses (as defined in Clause 17.1) in connection with the Licensee’s continued use of the Patent Rights pursuant to this Agreement;
21.4.4 Ownership or control of Licensee – the legal or beneficial ownership or control of the Licensee and/or any of its Affiliate’s changes in such a manner as Licensor shall in its sole discretion consider significant;
21.4.5 Misrepresentation – if the representations under Clause 15.2 amount to a substantive misrepresentation; or Licensee subsequently fails to substantially meet its projections (including projections regarding the countries in which Licensee intends to commercialise Licensed Product, the efforts and resources that Licensee intends to devote to the commercialisation of Licensed Product in each country and the extent to which Licensee’s supply is sufficient to meet demand in each country); or
21.4.6 Failure to make progress – any time after the second (2nd) anniversary of the Effective Date the Licensor, in its reasonable opinion, believes that the Licensee has not made satisfactory progress towards the goal of filing for Regulatory Approval for a Licensed Product before at least one Relevant Regulatory Authority not later than 60 months from the Effective Date.