Provision Language
ARTICLE 2. LICENSES AND TERRITORY OPTION
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2.5. Diversion. Each Party shall use Commercial Reasonable Efforts to ensure Products sold by, or with the permission of, such Party or its Affiliates or licensees is for end use in its respective territory. If a Party becomes aware that a product is being diverted to another territory, then it shall promptly notify the other Party of the same with the full details available to it, and the Parties shall promptly investigate the matter and discuss and agree upon a commercially reasonable remediation plan within sixty (60) days thereafter. Such plan shall be implemented within thirty (30) days thereafter.
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2.7. MIT Rights in India & Sri Lanka. The following applies to the extent specifically required by the MIT Agreement for Visterra’s compliance therewith. For clarity, SIIL is not a party to the MIT Agreement and has no direct obligations to MIT pursuant to this Agreement.
(a) If Visterra or any of its Affiliates receives, or if MIT notifies Visterra that it has received, a bona fide request from a capable Third Party for a license under the MIT Patents to Develop and Commercialize a Product at affordable prices in India or Sri Lanka and the Product is not being sold (including without limitation sufficient supply to meet market demand at reasonable costs) or diligently developed for sale by SIIL or an Affiliate for end use in India or Sri Lanka, as applicable, then Visterra shall promptly notify SIIL of such inquiry (an “Inquiry Notice”). So long as SIIL is not in material breach of its relevant obligations hereunder, Visterra shall use its best efforts to respond to MIT in connection with the Inquiry Notice in a manner agreed upon by the Parties, provided that any response shall, to the extent consistent with Visterra’s reasonable good faith belief, include confirmation of SIIL’s compliance with its obligations hereunder and Visterra’s belief that exclusivity should be maintained with respect to the license grants under Section 2.1 of the MIT Agreement.
(b) Within [**] months of such Inquiry Notice, Visterra may enter into a non-exclusive sublicense agreement containing commercially reasonable terms and conditions with such Third Party for the requested Product in India or Sri Lanka, as applicable. SIIL acknowledges that if Visterra does not grant a sublicense under the MIT Patents to the Third Party within [**] months of such Inquiry Notice, and MIT, at its sole discretion, determines that a sublicense to the Third Party is reasonable under the totality of the circumstances (taking into account development efforts of SIIL and its Affiliates) to make Products available in India or Sri Lanka, as applicable, then MIT shall have the right to grant a non-exclusive license under the MIT Patents to such Third Party in such territory. For clarity, the foregoing non-exclusive licenses contemplated under this Section 2.7(b) shall not apply to any Visterra Patents (other than the MIT Patents) licensed to SIIL hereunder.
ARTICLE 6. COMMERCIALIZATION
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6.2. SIIL Performance.
(a) SIIL shall use Commercially Reasonable Efforts to Commercialize the Product in the Licensed Territory. Without limiting the foregoing, SIIL shall use diligent efforts to Commercialize the Product in GAVI-Eligible Countries in the Licensed Territory in a manner that is designed to enable availability and accessibility at a reasonable price.
(b) If a Product has been approved for commercial sale in any country (either in the Licensed Territory or Visterra Territory), but has not been approved for commercial sale in one or more GAVI-Eligible Countries in the Licensed Territory, the Parties shall promptly meet to discuss, and SIIL shall commit to Visterra, in writing with mutually agreed upon timelines (such timelines to be enforceable under this Agreement), that it or an Affiliate shall, (A) promptly apply for approval for commercial sale of such Product in such GAVI-Eligible Countries in the Licensed Territory, and (B) promptly after receiving approval, begin and continue to sell such Product in such GAVI-Eligible Countries in Licensed Territory at reasonably affordable prices in sufficient volume to meet market demand in such countries.
ARTICLE 9. INTELLECTUAL PROPERTY
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9.4. Infringement of Patents by Third Parties.
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(b) Product Infringement.
(i) For any Product Infringement in the Field in the Licensed Territory, each Party shall share with the other Party all Information available to it regarding such existing or threatened infringement. SIIL shall have the first right, but not the obligation, to bring an appropriate suit or other action against any person or entity engaged in such Product Infringement, subject to Section 9.4(b)(ii) through 9.4(b)(v). If SIIL fails to institute and prosecute an action or proceeding to abate such Product Infringement within a period of [**] days after the first notice under Section 9.4(a), then Visterra shall have the right, but not theobligation to, commence a suit or take action to enforce the applicable Visterra Patent or Joint Patent against such Third Party perpetrating such Product Infringement in the Licensed Territory at its own cost and expense. In this case, SIIL shall take appropriate actions, if any, in order to enable Visterra to commence a suit or take the actions set forth in the preceding sentence.
(ii) Each Party shall provide to the Party enforcing the Visterra Patent or Joint Patent under this Section 9.4(b) reasonable assistance in such enforcement, at such enforcing Party’s request and expense, including joining such action as a party plaintiff if required by applicable Law to pursue such action. If any suit brought by SIIL must be brought in MIT’s name or MIT is joined as a party-plaintiff to any suit brought by SIIL, SIIL shall hold MIT harmless from and indemnify MIT against any costs, expenses or liability that MIT incurs in connection with such action on Visterra’s behalf. The enforcing Party with respect to any action under this Section 9.4(b) shall keep the other Party regularly informed of the status and progress of such enforcement efforts, shall reasonably consider the other Party’s comments on any such efforts, and shall seek consent of the other Party in any important aspects of such enforcement including determination of litigation strategy, filing of important papers to the competent court, which shall not be unreasonably withheld or delayed. If SIIL brings any action under this Section 9.4(b) involving existing or threatened infringement of the MIT Patents, SIIL shall consult with Visterra to seek input from MIT and shall consider the views of MIT regarding the advisability of the proposed action and its effect on the public interest, including without limitation, the availability and accessibility of Products at a reasonable price to people most in need within GAVI-Eligible Countries. Visterra shall cooperate with SIIL in facilitating all correspondence with MIT required under this Section 9.4(b)(ii).