ARTICLE 2. Term and Termination
A. Term: The Term of this Agreement commences upon the Effective Date and extends through final payment. This Agreement is anticipated to end [***], subject to completion of the project(s). A transaction for a prototype project is complete upon the written determination of the appropriate official for the matter in question that efforts conducted under a Prototype OT: (1) met the key technical goals of a project, or (2) accomplished a particularly favorable or unexpected result that justifies the completion of the prototype.
B. Termination for Convenience: The Government may terminate this Agreement for any or no reason by providing at least thirty (30) calendar days’ prior written notice to the Awardee. The Government and Awardee will negotiate in good faith a reasonable and timely adjustment of all outstanding issues between the Parties as a result of termination by the Government for convenience, consistent with the terms of this Agreement.
C. Termination for Cause: If the Awardee materially fails to comply with the provisions of this Agreement, the Other Transaction Agreement Officer (OTAO), after issuance of a cure notice and failure of the Awardee to cure the defect within ten (10) business days or the time allowed by the OTAO after Awardee’s receipt of the cure notice, whichever is longer, may take one or more of the following actions as appropriate:
i. temporarily withhold payments pending correction of the deficiency,
ii. disallow all or part of the cost of the activity or action not in compliance,
iii. wholly or partly suspend or terminate this Agreement,
iv. withhold further funding,
v. require Awardee to pay repurchase costs as defined in Article 2C1, Repurchase Against vi. Contractors Account, or
vi. take any other legally available remedies.
1. Repurchase Against Contractors Account
a. When the Prototype is still required after termination, the AO shall repurchase the same or a similar prototype against the Contractor’s account as soon as practicable. The AO shall repurchase at as reasonable a price as practicable, considering the quality and delivery requirements. The AO may repurchase a quantity in excess of the undelivered quantity terminated for cause when the excess quantity is needed, but excess cost may not be charged against the Contractor for more than the undelivered quantity terminated for cause (including variations in quantity). The AO will make a decision whether or not to repurchase before issuing the termination notice. If repurchase is made at a price over the price of the Prototype terminated, the AO shall, after completion and final payment of the repurchase contract or agreement, make written demand on the Contractor for the total amount of the excess, giving consideration to any increases or decreases in other costs such as transportation, discounts, etc. If the Contractor fails to make payment, the AO shall follow the procedures in FAR subpart 32.6 for collecting contract debts due the Government.
b. If this Agreement is terminated for Cause, Awardee will grant the Government a non- exclusive, paid up, license to the Awardee and subawardee patents and documentation necessary for the purpose of developing the Prototype solely for use with the INO-4800 product for COVID-19 and shall only be conducted under Inovio’s regulatory filings and solely for the pandemic period as applicable in the United States. No further use is permitted without Inovio’s explicit prior written consent, whereby any such permitted use shall be negotiated by the parties and subject to a future agreement. The Awardee shall provide the Government or its designee with a non-exclusive, paid up, license to any patent, copyright, technical data or regulatory information held by the Awardee that relates to the technology to permit the Government to pursue commercialization of the technology with a third party solely for use with the INO-4800 product for COVID-19 and shall only be conducted under Inovio’s regulatory filings and solely for the pandemic period as applicable in the United States. No further use is permitted without Inovio’s explicit prior written consent, whereby any such permitted use shall be negotiated by the parties and subject to a future agreement, on terms to be agreed between the Parties and subject to rights granted or held by third parties. The terms of this section and the obligations herein will be included in any exclusive license given by the Awardee to a third party for any intellectual property covered by this Agreement, on terms to be agreed between Awardee and such third party. This clause will survive the acquisition or merger of the Awardee by or with a third party.
Notwithstanding this Article 2.C, the Government’s rights and Awardee’s obligations under this paragraph will cease to exist if the Government terminates this Agreement for any reason other than for Awardee’s failure to materially comply with the terms of this Agreement.
D. Survival: In the event of Termination, all rights, obligations, and duties hereunder, which by their nature or by their express terms extend beyond the expiration or termination of this Agreement, including but not limited to warranties, indemnifications, intellectual property (including rights to and protection of Intellectual Property and Proprietary Information), and product support obligations shall survive the expiration or termination of this Agreement.
ARTICLE 13. Regulatory Rights
E. This Article 13 will survive the acquisition or merger of the Awardee by or with a third party. This Article will also be included in any subcontracts/sub agreements relating to the development of the Technology. This Article will survive the expiration of this agreement.