Provision Language
13. TERM, TERMINATION, AND MODIFICATION OF RIGHTS
13.1 This Agreement is effective when signed by all parties, unless the provisions of Paragraph 14.16 are not fulfilled, and shall extend to the expiration of the last to expire of the Licensed Patent Rights unless sooner terminated as provided in this Article 13 [***].
13.2 In the event that the Licensee is in default in the performance of any material obligations under this Agreement , including but not limited to the obligations listed in Paragraph 13.5, and if the default has not been remedied within ninety (90) days after the date of notice in writing of the default, the NIAID may terminate this Agreement by written notice and pursue outstanding royalties owed through procedures provided by the Federal Debt Collection Act.
13.3 In the event that the Licensee becomes insolvent, files a petition in bankruptcy, has such a petition filed against it, determines to file a petition in bankruptcy, or receives notice of a third party’s intention to file an involuntary petition in bankruptcy, the Licensee shall immediately notify the NIAID in writing.
13.4 The Licensee shall have a unilateral right to terminate this Agreement or any licenses in any country or territory [***] by giving theNIAID sixty (60) days written notice to that effect.
13.5 [***] the NIAID shall specifically have the right to terminate or modify, at its option, this Agreement, if the Licensee:
(a) is not [***] the Commercial Development Plan [***] and the Licensee cannot otherwise demonstrate to NIAID’s [***] satisfaction that the Licensee has [***], or can be expected to [***] within a reasonable time, [***] to achieve the Practical Application of the Licensed Products or the Licensed Process;
(b) has not achieved the Benchmarks as may be modified under Paragraph 9.2;
(c) has willfully made a false statement of, or willfully omitted a material fact in the license application or in any report required by this Agreement;
(d) has committed an [***] material breach of a covenant or agreement contained in this Agreement;
(e) is not keeping the Licensed Products or the Licensed Processes reasonably available to the public after commercial use commences; or
(f) cannot reasonably satisfy unmet health and safety needs; or
(g) cannot reasonably justify a failure to comply with the domestic production requirement of Paragraph 5.2 unless waived [***].
13.6 In making any determinations referenced in Paragraph 13.5, the NIAID shall take into account the normal course of such commercial development programs conducted with sound and reasonable business practices and judgment and the annual reports submitted by the Licensee under Paragraph 9.2. Prior to invoking termination or modification of this Agreement under Paragraph 13.5, the NIAID shall give written notice to the Licensee providing the Licensee specific notice of, and a ninety (90) day opportunity to respond to, the NIAID’s concerns as to the items referenced in 13.5(a)—13.5(g). If the Licensee fails to [***] referenced in 13.5(a)—13.5(g) [***], fails to initiate corrective action to the NIAID’s [***] satisfaction, the NIAID may terminate this Agreement.
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13.8 The NIAID reserves the right according to 35 U.S.C.§209(d)(3) to terminate or modify this Agreement if it is determined that this action is necessary to meet the requirements for public use specified by federal regulations issued after the date of the license and these requirements are not reasonably satisfied by the Licensee [***].
13.9 Within thirty (30) days of receipt of written notice of the NIAID’s unilateral decision to modify or terminate this Agreement, the Licensee may, consistent with the provisions of 37 C.F.R. §404.11, appeal the decision by written submission to the designated NIAID official or designee. The decision of the designated NIAID official or designee shall be the final agency decision. The Licensee may thereafter exercise any and all administrative or judicial remedies that may be accessible.
13.10 Within [***] days of expiration or termination of this Agreement under this Article 13, a final report shall be submitted by the Licensee. Any royalty payments, including those incurred but not yet paid [***], due to the NIAID shall become immediately due and payable upon termination or expiration. [***] If terminated under this Article 13, sublicensees may elect to convert their sublicenses to direct licenses with the NIAID pursuant to Paragraph 4.3. Unless otherwise specifically provided for under this Agreement, upon termination or expiration of this Agreement, the Licensee shall return all Licensed Products or other materials included within the Licensed Patent Rights to the NIAID or provide the NIAID with certification of the destruction thereof. The Licensee may not be granted additional NIAID licenses if the final reporting requirement is not fulfilled.