Kasan Insight :: 과학, 기술 그리고 법

- 제약/화학/바이오 분야의 실용적 법률정보와 해결방안

17. TERM AND TERMINATION. 

17.1 Termination Prior to the Closing Date.

This Agreement may be terminated at any time prior to the Closing Date (with respect to Sections 17.1(b) and 17.1(c) below, by written notice by the terminating Party to the other Party): (a) by mutual written agreement of the Parties;

(b) by Licensor or Licensee, if a court of competent jurisdiction or other Governmental Authority shall have issued a non-appealable final order, decree or ruling or taken any other non-appealable final action, in each case, having the effect of permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement; provided, however, that the right to terminate this Agreement under this Section 17.1(b) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the primary cause of, or materially contributed to, such action; or

(c) by Licensee, if Licensor has breached any representation, warranty, covenant or agreement of Licensor set forth in this Agreement which (i) would result in a failure of a condition set forth in Section 13.2 and (ii) is not cured within thirty (30) calendar days after written notice thereof.   

17.2 Term.

Except as provided in Section 17.1, this Agreement shall continue until the date of expiration of the Royalty Term, unless earlier terminated in accordance with this Article 17 (the “Term”).  

17.3 Termination of the Agreement After the Closing Date.  

(a) Termination by Licensee. 

Licensee may terminate this Agreement in its entirety or in part (including, for example, on a country-by-country basis) for any reason (a) upon at least ninety (90) days prior written notice to Licensor if such notice is delivered prior to the First Commercial Sale of a Licensed Product anywhere in the Territory or (b) upon at least one hundred eighty (180) days prior written notice to Licensor if such notice is delivered after the First Commercial Sale of a Licensed Product anywhere in the Territory.  In the event of any significant adverse clinical events or the termination of a Clinical Trial for safety reasons and Licensee terminates this Agreement under this Section 17.3(a), the foregoing notice periods in clauses (a) and (b) shall be reduced to forty-five (45) days and ninety (90) days, respectively.

(b) Termination for Material Breach. 

If either Party believes the other is in material breach of its obligations under this Agreement, it may give notice of such breach to the other Party, which Party shall have sixty (60) days in which to remedy such breach, or thirty (30) days in the case of material breach of any payment obligation hereunder.

Such sixty (60) day period shall be extended in the case of a breach not capable of being remedied in such sixty (60) day period so long as the breaching Party uses diligent efforts to remedy such breach and is pursuing a course of action that, if successful, will effect such a remedy; provided, however, that such cure period shall not be extended more than sixty (60) additional days. 

If such alleged breach is not remedied or is not capable of being remedied within the period set forth above, the non-breaching Party shall be entitled, without prejudice to any of its other rights conferred on it by this Agreement, and in addition to any other remedies available to it by law or in equity, to terminate this Agreement upon written notice to the other Party.  In the event of a dispute regarding any payments due and owing hereunder, all undisputed amounts shall be paid when due and the balance, if any, shall be paid promptly after settlement of the dispute including any accrued interest thereon.  

(c) Consequences of Termination. 

In the event that either Party terminates this Agreement, then as of the effective date of such termination, the following terms and conditions shall apply:

(i) Termination by Licensor for Licensee’s Material Breach. 

In the event of termination of this Agreement by Licensor pursuant to Section 17.3(b) for Licensee’s uncured material breach, and except for each Party’s rights and obligations that survive termination as set forth in Section 17.5:

(A) all licenses and rights granted by either Party under this Agreement shall terminate with the exception, subject to Section 19.1, of the license granted to Licensor by Licensee under the Licensee Inventions relating to formulations or methods of manufacturing formulations derived from the Licensed Intellectual Property pursuant to Section 9.2(c) which shall become perpetual, worldwide and fully paid; 

(B) Licensee shall pay Licensor any and all payments that have accrued prior to the effective date of such termination; 

(C) Licensee shall transfer to Licensor all materials, results, analyses, reports, websites, marketing materials, technology, know-how and other Information in whatever form received by Licensee from Licensor as of the effective date of such termination; 

(D) Licensee shall transfer to Licensor (A) all Regulatory Approvals in the Territory in effect as of the date of such termination and/or (B) any and all Information pertaining to the Development and Commercialization of the Licensed Products in the Territory, including but not limited to any and all Clinical Trial data pertaining to the Territory. 

(ii) Termination by Licensee. 

Subject to Section 17.3(c)(ii)(E), in the event of termination of this Agreement by Licensee pursuant to Section 17.3(a), and except for each Party’s rights and obligations that survive termination as set forth in Section 17.5:  

(A) all licenses and rights granted by either Party under this Agreement shall terminate, with the exception, subject to Section 19.1, of the license granted to Licensor by Licensee under the Licensee Inventions relating to formulations or methods of manufacturing formulations derived from the Licensed Intellectual Property pursuant to Section 9.2(c), which shall become worldwide, subject to Licensor’s obligations under subsection (E) below;  

(B) Licensee shall pay Licensor any and all payments that have accrued prior to the effective date of such termination; 

(C) Licensee shall transfer to Licensor all materials, results, analyses, reports, websites, marketing materials, technology, know-how and other Information in whatever form received by Licensee from Licensor as of the effective date of such termination;  

(D) Licensee shall, upon receipt of reasonable consideration from Licensor based on an actual cost basis, transfer to Licensor (A) all Regulatory Approvals in the Territory in effect as of the date of such termination and/or (B) any and all Information pertaining to the Development and Commercialization of the Licensed Products in the Territory, including but not limited to any and all Clinical Trial data pertaining to the Territory; and 

(E) in partial consideration for (A) Licensee’s costs of obtaining and maintaining such Regulatory Approvals and Commercializing Licensed Products in the Territory prior to the date of such termination, and/or (B) subject to Section 19.1, the license granted under the Licensee Inventions, Licensor shall pay to Licensee following the effective date of such termination, on a product-by-product and country-by-country basis, a commercially reasonable royalty to be negotiated in good faith by the Parties, on all sales by Licensor, its Affiliates and Sublicensees, of products that would have been Licensed Products, had they been sold by Licensee prior to the effective date of such termination. 

(iii) Termination by Licensee for Licensor’s Material Breach.  

In the event that Licensee has the right to terminate this Agreement for Licensor’s uncured material breach pursuant to Section 17.3(b), Licensee may terminate this Agreement or, in lieu of such termination, by written notice to Licensor after a determination that such breach was a material breach and was not cured before the expiration of the cure period set forth in Section 17.3(b), elect to retain all of the rights and licenses granted to Licensee hereunder for the remainder of the Term. Following such an election by Licensee:

(A) Licensee may request that damages be awarded to Licensee for Licensor’s uncured material breach by final and binding arbitration conducted in accordance with Section 19.12. In determining whether damages should be awarded to Licensee, the arbitrators shall consider the nature of Licensor’s uncured material breach and the impact of such uncured material breach on Licensee and the transactions contemplated by this Agreement. 

In the event that such final and binding arbitration determines that Licensee should be awarded damages, Licensee shall be entitled to deduct the amount of such damages from milestone and royalty payments to be paid to Licensor under Sections 8.2 and 8.3;

(B) the limitations applicable to Licensor’s activities as set forth in Sections 2.3(a) and 2.4 shall continue to apply; and

(C) the license granted by Licensee to Licensor under Section 9.2(c) shall terminate.    

17.4 Surviving Obligations. 

Upon termination of this Agreement, the Parties shall remain obligated to make all payments which have accrued under this Agreement prior to the date of termination, when and as they become due and payable.  In addition, the provisions in Articles 1, 9, 10, 14, 15, 16, 18 and 19, and Sections 2.6, 5.2, 5.7, 7.6, 8.3(h), 8.7 (with respect to payment accruing prior to the effective date of termination), 8.8, 8.9, 17.3(c), 17.4 and 17.5 of this Agreement shall survive termination of this Agreement for any reason.  

17.5 Accrued Rights. 

Termination or expiration of this Agreement shall not relieve either Party from obligations that are expressly indicated to survive termination or expiration of the Agreement.  Termination by a Party shall not be an exclusive remedy and all other remedies will be available to the terminating Party, in equity and at law.

KASAN_국제계약, 영문계약, 특허실시, 영업비밀, 기술이전 라이선스 계약서에서 계약종료, 계약해지, TERMINATION 영문조항 샘플.pdf

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10. TERMINATION 

10.1 Expiration. Subject to this Section 10 below, this Agreement shall expire, on a Licensed Product-by-Licensed Product and country-by-country basis, on the date on which Kite, its Affiliates and sublicensees permanently cease to research, develop, sell and commercialize the Licensed Product in such country (the “Term”).

10.2 Termination for Convenience. The Licensee Kite may terminate this Agreement, in its sole discretion, upon thirty (30) days prior written notice to the Licensor Cabaret and Dr. Eshhar.

10.3 Termination for Cause. Except as otherwise provided in Section 12, each party may terminate this Agreement upon or after the breach of any material provision of this Agreement by the other party if the other party has not cured such breach within sixty (60) days (or such longer period as such party may reasonably agree if said breach is incapable of cure within such sixty (60) days) after receipt of express written notice thereof by such party.

10.4 Insolvency. This Agreement may be terminated by the Licensor Cabaret in the event of an Insolvency Event occurring in relation to the Licensee Kite, by giving a notice of termination to Kite. The termination shall take effect upon delivery of the notice of termination by Cabaret. “Insolvency Event” shall mean that, with respect to Kite, any of the following occurs: (i) Kite makes any arrangement or composition with or any assignment for the benefit of its creditors generally; (ii) a petition is presented that is not dismissed within 120 days or a court order is made or a resolution is passed for the winding up of Kite or for the making of an administration order or for the appointment of a provisional liquidator or a judicial factor or similar officer in relation to Kite; (iii) an encumbrancer takes possession of or a trustee, receiver, liquidator, provisional liquidator, administrator, manager ad interim, administrative receiver, judicial factor or similar officer is appointed, in each case for all or substantially all of Kite’s intellectual property rights and such appointment materially prejudices Cabaret’s rights under this Agreement; or (iv) Kite does, or suffers to be done in relation to it, any analogous action or proceeding in any jurisdiction anywhere in the world (including without limitation any actions or proceedings relating to bankruptcy law of any nature in the United States of America).

10.5 Effect of Expiration or Termination. Expiration or termination of this Agreement shall not relieve the parties of any obligation accruing prior to such expiration or termination, and the provisions of Sections 5.2, 8, 10.5, 10.6, 11 and 13 shall survive the expiration or termination of this Agreement. Upon any termination of this Agreement, all licenses granted herein shall terminate, nevertheless, Cabaret shall grant a direct license to any Sublicensee of Kite hereunder having the same scope as such sublicense and on terms and conditions no less favorable to such Sublicensee than the terms and conditions of this Agreement, provided that such Sublicensee is not in default of any applicable obligations under this Agreement and agrees in writing to be bound by the terms and conditions of such direct license.

10.6 Termination Fee. In the event that Kite terminates this Agreement termination for convenience under Section 10.2 prior to the third (3rd) anniversary of the Effective Date, Kite shall pay to Cabaret a termination fee in an amount equal to US$500,000 within thirty (30) days of such termination.

KASAN_특허실시, 기술이전, 라이선스 계약서에서 TERMINATION 조항 – 라이센시 파산 등 일반사유 및 양 당사자의 계약위반으로 인한 계약종료, 계약종료 후 처리 등 계약조항 샘플.pdf

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14. TERM AND TERMINATION. 

14.1 Term. The term of this Agreement shall commence as of the Effective Date and shall continue in effect until it is terminated as specifically provided in this Agreement. 

14.2 Termination for Material Breach. 

(a) If either Party (the “non-breaching Party”) believes the other Party (the “alleged breaching party”) is in material breach of any of such alleged breaching Party’s obligations under this Agreement, the non-breaching Party may give notice of such breach to the alleged breaching Party, and the alleged breaching Party shall have sixty (60) days in which to remedy such material breach or establish that it is not in material breach hereunder. Subject to Section 14.2(b), if such alleged material breach is not remedied in the time period set forth above, the non-breaching Party shall be entitled, without prejudice to any of its other rights conferred on it by this Agreement, and in addition to any other remedies available to it by law or in equity, to terminate this Agreement upon written notice to the alleged breaching Party.  

(b) If the alleged breaching Party disputes in good faith the existence or materiality of a breach specified in a notice provided by the non-breaching Party pursuant to Section 14.2(a), and the alleged breaching Party provides notice to the non-breaching Party of such dispute within fifteen (15) days after receipt of such notice, the non-breaching Party shall not have the right to terminate this Agreement unless and until the existence of such material breach by the alleged breaching Party has been determined in accordance with the dispute resolution procedures set forth in Section 15.8 (each such termination delay, a “Toll Period”) and the breaching Party fails to cure such default within sixty (60) days following such determination; provided that, if it is determined that such material breach occurred and such breach is not cured within such sixty (60) day period, then, for  purposes of Section 14.4(c)(iii), this Agreement shall be deemed to have been terminated as of the date of delivery of notice of such breach under Section 14.2(a). During the pendency of such a dispute, all of the terms and conditions of this Agreement shall remain in effect and the Parties shall continue to perform all of their respective obligations hereunder.  

14.3 Termination upon Insolvency. To the extent permitted under Applicable Laws, either Party may terminate this Agreement with respect to the other Party if, at any time, such other Party shall file in any court or agency pursuant to any statute or regulation of any state or country, a petition in bankruptcy or insolvency or for reorganization or for an arrangement or for the appointment of a receiver or trustee of such other Party or of its assets, or if such other Party proposes a written agreement of composition or extension of its debts, or if such other Party shall be served with an involuntary petition against it, filed in any insolvency proceeding, and such petition shall not be dismissed within forty-five (45) days after the filing thereof, or if such other Party shall propose or be a party to any dissolution or liquidation, or if such other Party shall make an assignment for the benefit of its creditors.   

14.4 Termination upon Force Majeure. Either Party may terminate this agreement due to a Force Majeure event pursuant to Section 15.13.   

14.5 Consequences of Expiration or Termination. 

(a) Upon termination of this Agreement by either Party pursuant to Sections 14.2, 14.3, or 14.4, 

(i) all of the licenses granted by Licensor to Licensee shall therewith immediately terminate and any sublicenses granted by Licensee thereunder will be subject to the provisions set forth in Section 2.4(f); 

(ii) Licensee must assign and transfer to Licensor, and shall cause its Affiliates and Sublicensees to assign and transfer to Licensor, without additional compensation, all of their right, title, and interest in to, and under, subject to any licenses or sublicenses granted by Licensee that expressly survive any such termination pursuant to Section 2.4(f), all clinical and related study data based on use of Products, all Regulatory Filings and Regulatory Approvals for Products in respect of each country in the Territory; and the Renaissance Supply Agreements. 

(b) If at the time of any such termination of this Agreement by Licensor pursuant to Sections 14.2 or 14.3 Licensee has in its possession or under its control any inventory of the Product approved and allocated for sale in the Territory, Licensee shall for a period not to exceed six (6) months following the effective date of such termination be permitted to sell any such inventory of the Product in the Field in the Territory, and the licenses hereunder shall continue on a nonexclusive basis until all such units of the Product have been sold, provided that (A) the Product shall not be sold at a discount to a purchaser that is greater than the average discount provided to such purchaser for the Product during the twelve (12) month period preceding such termination and, in addition, such sales shall not result in the applicable wholesaler inventory levels for the Product exceeding the average levels for the twelve (12) month period preceding such termination, and (B) Licensee continues to pay, during the applicable Royalty Term, the applicable royalty and, if applicable, sales milestones, on resulting applicable Net Sales of Product in the Territory by it Licensee, its Sublicensees or any Third Party Distributors. 

(c) In the event of a material breach of this Agreement by Licensor that is not successfully disputed or cured by Licensor in accordance with Section 14.2(b), Licensee may elect to terminate this Agreement or continue the Agreement; provided, that in the event Licensee elects to continue the Agreement in lieu of terminating the Agreement in accordance with Section 14.2, Licensee will have the right in its discretion to fully reduce the royalty payments or milestone payments required under Article 8 by the amount of damages suffered by Licensee due to such material breach by Licensor, which such amount will be determined by an independent third party with requisite expertise and agreed upon by the Parties, with any dispute as to the determination being subject to the dispute resolution process set forth in Section 15.8(b). 

(d) In the event of the insolvency or bankruptcy of Licensor that gives rise to Licensee’s right to terminate this Agreement in accordance with Section 14.3, Licensee may elect to terminate this Agreement or continue the Agreement (subject, to the extent applicable, Section 14.7). 

14.6 General Surviving Obligations. The rights and obligations set forth in this Agreement shall extend beyond the expiration or termination of the Agreement only to the extent expressly provided for herein, or to the extent that the survival of such rights or obligations are necessary to permit their complete fulfillment or discharge. Expiration or termination of this Agreement for any reason shall not (a) release either Party from any obligation that has accrued prior to the effective date of such expiration or termination (including without limitation the obligation to pay amounts accrued and due under this Agreement prior to the effective date of such termination but that are unpaid or become payable thereafter), (b) preclude either Party from claiming any other damages, compensation, or relief that it may be entitled to upon such expiration or termination, or (c) terminate any right to obtain performance of any obligation provided for in this Agreement that shall survive expiration or termination. Without limiting the foregoing, the Parties have identified various rights and obligations which are understood to survive, as follows. In the event of expiration or termination of this Agreement for any reason, the following provisions shall survive in addition to others specified in this Agreement to survive in such event: Sections 7.7, 7.8, 9.1(a), 9.2(b), 9.5(a), and Articles 1 (to the extent that any term defined therein is used in any of the sections or articles specified in this list as surviving termination of this Agreement), 8, 11, 12, 13, 14, and 15. 

14.7 Rights in Bankruptcy. All rights and licenses granted under or pursuant to this Agreement by either Party are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code, licenses of right to “intellectual property” as defined under Section 61 of the United States Bankruptcy Code. The Parties agree that the Parties, as licensees of such rights under this Agreement, shall retain and may fully exercise all of their rights and elections under the United States Bankruptcy Code. The Parties further agree that, in the event of the commencement of a bankruptcy proceeding by or against either Party under the United States Bankruptcy Code, the other Party will be entitled to a complete duplicate of (or complete access to, as appropriate) any such intellectual property and all embodiments of such intellectual property, which, if not already in the non-subject Party’s possession, shall be promptly delivered to it (a) upon any such commencement of a bankruptcy proceeding upon the non-subject Party’s written request therefor, unless the Party subject to such proceeding elects to continue to perform all of its obligations under this Agreement, or (b) if not delivered under clause (a) above, following the rejection of this Agreement by or on behalf of the Party subject to such proceeding upon written request therefor by the non-subject Party. 

KASAN_국제계약서 중에서 기술이전 및 독점라이선스 계약서 중 기간, 계약위반 등으로 인한 계약종료, 계약종료 후 처리 등 TERM AND TERMINATION 조항 샘플.pdf

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