Provision Language
10. Term and Termination
10.1 Term. This Agreement shall enter into force upon the Effective Date and, unless earlier terminated as provided herein, shall continue on a country-by-country basis until the longer of the date that is (a) the expiration or abandoment of the last-to expire Patent containing a valid claim covering the manufacture, use, import, offer for sale or sale of API or Product in the applicable country and (b) twelve (12) years after the Effective Date. Upon expiration of this Agreement (but not the earlier termination of this Agreement), and with respect to a particular country in the Territory, subject to the terms and conditions herein with respect to such country, the license granted in Section 2.1 to Licensee only with respect to Licensed Know-How shall become a perpetual, irrevocable license to develop, make, have made, use, sell, have sold, offer for sale, import and distribute with respect to such Product in the Field in such country.
10.2 Termination for Breach. A Party (“Non-Breaching Party”) shall have the right to terminate this Agreement in the event the other Party (“Breaching Party”) is in material breach of any of its material obligations under this Agreement. The Non-Breaching Party shall provide written notice to the Breaching Party. The Breaching Party shall have a period of sixty (60) days after such written notice is provided to cure such breach. If such breach is not cured within the sixty (60) day period, this Agreement shall immediately effectively terminate.
10.3 Gilead Right to Terminate
(a) Gilead shall have the right to terminate this Agreement and/or one or both of the licenses granted pursuant to Section 2.1 (whether or not such event constitutes a right of termination pursuant to Section 10.2), immediately if in the reasonable opinion of Gilead, direct or indirect Control of Licensee changes.
(b) Gilead shall have the right to terminate this Agreement and/or one or both of the licenses granted pursuant to Section 2.1 (whether or not such event constitutes a right of termination pursuant to Section 10.2), if:
(i) Gilead determines in good faith that (A) a material quantity of Lenacapavir made or sold by Licensee has been diverted to third parties in a manner inconsistent with the terms of this Agreement, (B) Product made and/or sold by Licensee has been diverted to countries outside the Territory, whether or not by any fault or action or inaction of Licensee, or (C) any of the prohibited activities described in Section 7.2(a) has occurred;
(ii) Gilead determines in good faith that, due to material deficiencies in Licensee’s compliance with the Appropriate Quality Standards, Licensee is unable to reliably and consistently manufacture Lenacapavir or Product in accordance with the Appropriate Quality Standards; or
(iii) Gilead determines in good faith that Licensee has obtained material quantities of Lenacapavir and/or Product from sources in ways that are inconsistent with the terms and conditions of Article 3.
Gilead shall give Licensee written notice of any such event and provide Licensee with a period of thirty (30) days after such notice to demonstrate that the conditions giving rise to Gilead’s determination no longer exist to Gilead’s reasonable satisfaction. If Licensee is unable to do so, this Agreement shall be terminated effective upon the thirtieth (30th) day following such notice.
10.4 Licensee Right to Terminate. Licensee will have the right to terminate this Agreement in its entirety for its convenience upon thirty (30) days prior written notice to Gilead.
10.5 Effects of Termination. In the event of any termination, of this Agreement under Sections 10.2, 10.3, 10.4 or 10.6, the following terms shall apply as of the effective date of termination (the “Lenacapavir Termination Date”).
(a) All licenses granted by Gilead under this Agreement, and any other rights granted by Gilead, including without limitation Gilead’s obligation to make a technology transfer available pursuant to Section 5.5 (to the extent such technology transfer has not already occurred), shall terminate.
(b) All rights and licenses granted by Gilead under this Agreement with respect to Lenacapavir and Product shall terminate.
(c) Nothing set forth in this Section 10.5 shall be deemed a waiver by Gilead to enforce any Patent or any other intellectual property right owned or controlled by Gilead against Licensee for any activities Licensee may undertake with respect to Lenacapavir or Product after the Lenacapavir Termination Date.
10.6 Cross termination. If Gilead has entered into further license agreements with Licensee on or after the Effective Date (each being an “Other License Agreement”) and Gilead has a right to (a) terminate this Agreement in accordance with Sections 10.2 and 10.3 or (b) a right to terminate an Other License Agreement for Licensee’s material breach (including as a result of Licensee’s failure to comply with Gilead’s anti-diversion program) under such Other License Agreement, then with respect to (a), Gilead may also give notice to terminate any or all of the Other License Agreements and with respect to (b), Gilead may give notice to terminate this Agreement by reference to Licensee’s material breach under the applicable Other License Agreement.
10.7 Insolvency. In the event that Licensee becomes insolvent, makes an assignment to the benefit of creditors, or has a petition in bankruptcy filed for or against it, Gilead shall have the right to treat such event as a material breach.
10.8 Waiver. The waiver by either Party of any breach of any term or condition of this Agreement shall not be deemed a waiver as to any subsequent or similar breach.
10.9 Survival. Sections 1, 2.4 (with respect to Improvements developed prior to the effective date of expiration or termination), 2.6(b), 4.3 (with respect to Lenacapavir and Product manufactured and/or sold prior to the effective date of expiration or termination), 4.5 (for a period of 3 years following the effective date of expiration or termination), 4.6(for a period of 3 years following the effective date of expiration or termination), 5.2 (solely with respect to the obligations set forth in the last sentence of Section 5.2), 5.3 (for a period of 1 year following the effective date of expiration or termination of the Agreement, and solely with respect to Improvements developed prior to the effective date of expiration or termination), 5.4(a), 7.1(c) and 7.2(d)(with respect to Product sold prior to such expiration or termination), 8, 9, 10.1, 10.5, 10.7, 10.8, 10.9, 11 and 12 shall survive such termination or expiry of this Agreement. Except as otherwise provided in this Section 10.9, all rights and obligations of the Parties under this Agreement shall terminate upon the expiration or termination of this Agreement.