Provision Language
ARTICLE 13. TERM AND TERMINATION
13.1. Term. This Agreement shall become effective on the Effective Date and, unless earlier terminated pursuant to this Article 13 or Section 15.5, shall remain in effect, on a country-by-country basis, until the expiration of the Royalty Term of the Product in such country (“Term”). Upon the expiration of the Term in a particular country, the license granted to SIIL under the Visterra Technology in such country shall become perpetual, fully-paid and royalty-free; provided that any license to the Visterra Technology that is in-licensed under the MIT Agreement shall be non-exclusive upon such expiration.
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13.5. Visterra Rights upon Termination of this Agreement. If this Agreement is terminated (but not if this Agreement expires in accordance with its terms) upon such early termination of this Agreement, the following shall apply (in addition to any other rights and obligations otherwise under this Agreement with respect to such termination):
(a) Regulatory Filings; Data. To the extent permitted by applicable Laws, SIIL shall transfer and assign to Visterra all Regulatory Filings, Regulatory Approvals, and related preclinical, analytical, and clinical data for the Product throughout the Licensed Territory. If the transfer of any such Regulatory Filings, Regulatory Approvals, and related preclinical, analytical, and clinical data is prohibited by applicable Laws, SIIL shall grant Visterra an exclusive, perpetual, royalty-free, license and a “Right of Reference,” as that term is defined in 21 C.F.R. § 314.3(b) and any foreign counterpart to such regulation, to such Regulatory Filings, Regulatory Approvals, and related preclinical, analytical, and clinical data to Develop, Manufacture or Commercialize the Licensed Antibody or Product and shall cooperate in good faith with Visterra to allow Visterra to make full use thereof, including by executing documents and making filings with Regulatory Authorities upon Visterra’s reasonable request.
(b) SIIL License. Within sixty (60) days following the effective date of termination, Visterra may elect upon written notice to SIIL to receive the license provided for in this Section 13.5(b). Effective upon SIIL’s receipt of Visterra’s election to receive such license, SIIL hereby grants to Visterra, a non-exclusive, royalty-bearing license under SIIL Technology to Develop, make, have made, use, sell, offer for sale, have sold, import and otherwise Commercialize Products in the Licensed Territory, which license shall be effective as of the date of such termination. In consideration for such license, the Parties shall agree to, and Visterra shall pay SIIL, a commercially reasonable royalty on Net Sales of Products in the Licensed Territory which royalty shall be determined by the Parties taking into account the commercial value of such SIIL Technology and the value of any Product Marks assigned to Visterra pursuant to Section 13.5(b); provided, that in no event shall the royalty payable by Visterra to SIIL under this Section 13.5(b) exceed the royalty rate payable by SIIL under Section 8.3.
(c) Transition Assistance. SIIL shall provide such reasonable assistance, at no cost to Visterra (except as set forth in Section 13.6), as may be reasonably necessary or useful for Visterra to commence or continue, at Visterra’s cost, Developing or Commercializing Products in the Licensed Territory, to the extent SIIL is then performing or having performed such activities, including without limitation transferring or amending as appropriate, upon request of Visterra, any agreements or arrangements with Third Party vendors to sell Products in the Licensed Territory. To the extent that any such contract between SIIL and a Third Party is not assignable to Visterra, then SIIL shall reasonably cooperate with Visterra to arrange to continue to provide and provide such services from such entity.
(d) If this Agreement is terminated by Visterra under Section 13.2(a) solely with respect to the Manufacture of the Licensed Antibody or Product by SIIL, the provisions of this Section 13.5 shall apply solely with respect to such terminated rights and all other rights and obligations of SIIL hereunder shall survive.
13.6. Payment by Visterra. If this Agreement is terminated for any reason, Visterra shall reimburse SIIL for all reasonable and documented out-of-pocket and internal costs (including labor costs) incurred by SIIL in performing its obligations in Sections 13.5(a) through 13.5(c); provided, that if this Agreement is terminated by Visterra pursuant to Section 13.2 or 13.4, Visterra may seek to recover such amounts as part of any dispute resolution proceeding brought by Visterra with respect to the breach or Patent Challenge giving rise to such termination.
13.7. Survival. Any expiration or termination of this Agreement will be without prejudice to the rights of either Party against the other accrued or accruing under this Agreement prior to expiration or termination, including payment obligations arising priorto, or as a result of a Party’s exercise of its rights or performance under this Agreement prior to, such expiration or termination. The following provisions shall survive any expiration or termination of this Agreement: Articles 1, 11 (provided that Section 11.5 shall survive solely to the extent applicable to a Party’s obligations following expiration or termination of the Agreement), 12 and 14 and Sections 2.2(b), 2.2(c), 2.2(d), 2.3(d), 4.5, 4.6, Sentences 3, 6 and 7 of Section 5.5, 6.4, 8.3(e), 8.4, 8.5, 8.6, 8.7, 9.1, 9.2, 10.6, 10.7,13.1, 13.5, 13.6, 13.7, 15.1, 15.3, 15.4 and 15.6 through 15.13.