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$CYCN
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10-Q
Nov 12, 11:30 AM ET
Cyclerion Therapeutics, Inc. 10-Q
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Contents
66
RECITALS
2.1 License Grants. Subject to the terms of this Agreement, MIT hereby grants to Company for the Term an exclusive (subject to the retained rights set forth in Section 2.4 below) royalty-bearing license under the Patent Rights to develop, make, have made, use, sell, offer to sell, lease, and import Licensed Products in the Field in the Territory. MIT retains all exclusive rights under the Patent Rights outside of the Field. Company agrees that it shall not use the Patent Rights for any other purpose outside the Field. Company shall not extend the right to practice the license granted to Company under this Section 2.1 to any Affiliate of Company without MIT’s prior written consent, except that Company may, without such consent, extend the right to practice such license to any Affiliate, provided that:
(a) Company shall provide written notice to MIT of the extension of such license to any Affiliate within [***] of the transfer, which notice shall include: (i) the name, principal address for physical location of the Affiliate; (ii) jurisdiction of incorporation or formation of such Affiliate; and (iii) certification by an officer of Company that the applicable entity is an Affiliate;
(b) upon any such entity ceasing to be an Affiliate (of which Company shall provide written notice to MIT within [***] thereof), such entity’s right to practice the license grant set forth in this Section 2.1 shall automatically terminate;
(c) no such extension of the license grant set forth in this Section 2.1 to an Affiliate shall relieve Company of any of its obligations under this Agreement;
(d) no such extension of the license grant set forth in this Section 2.1 to an Affiliate shall be assignable by an Affiliate;
(e) each such Affiliate agrees in writing to be bound by the terms and conditions of this Agreement as if it were Company hereunder;
(f) any act or omission by each such Affiliate shall be deemed an act or omission by Company hereunder, and Company shall be responsible for each such Affiliate complying with all obligations of Company under this Agreement (including all restrictions placed on Company herein), and any uncured material breach by an Affiliate shall be deemed a material breach by Company;
(g) Company is not in breach of this Agreement at the time of the proposed license extension;
(h) Company shall be responsible and liable for any breach of this Agreement by any such Affiliate; and
(i) such Affiliate is not an Elevated Risk Affiliate.
Company shall promptly deliver to MIT an unredacted copy of an agreement between Company and Affiliate (and any amendments thereto) demonstrating compliance with the obligations set forth in this Section 2.1 within [***] of the effective date of such agreement. Any transfer or extension of rights or obligations under this Agreement to an Affiliate shall not become effective until such time as MIT has received a copy of such written agreement. If any such agreement or amendment is not written in English, Company shall also provide MIT with an accurate English translation of such agreement.
2.3 U.S. Manufacturing. Company agrees to comply with the applicable requirements of 35 U.S.C. § 204 “Preference for United States Industry”, as amended, or any successor statutes or regulations.
2.4 Retained Rights.
3.1 Diligence Requirements. Company shall use diligent efforts to develop, seek Regulatory Approval for, and commercialize, Licensed Products and Licensed Procedures for the benefit of the public and to make Licensed Products that have gained Regulatory Approval in a jurisdiction available to the public in such jurisdiction. In addition, Company shall achieve the Diligence Requirements in accordance with the schedule set forth on Appendix B hereto.
3.2 Failure to Achieve Diligence Requirement; Right to Cure.
4.1 Consideration for Grant of Rights.
5.1 Progress Reports. Company shall deliver progress reports to MIT [***], containing information sufficient to demonstrate compliance with this Agreement and, without limiting the foregoing, each progress report shall specifically include:
5.2 Revenue Reports. Company’s obligation to submit reports under this Section shall commence upon the earliest of: (a) the date of execution of the first Sublicense; (b) the date of first achievement of a Milestone Event under Section 4.1(d); and (c) a First Commercial Sale of a Licensed Product or Procedure Component, or first commercial performance of a Licensed Procedure. Thereafter, Company shall deliver reports as set forth in this Section 5.2 to MIT (by email to [***]) within [***] following the end of each Reporting Period, containing at least the following information for the preceding Reporting Period, in substantially the forms attached hereto as Appendix C-1 and Appendix C-2 (or equivalent Company preferred format):
5.3 Financial Statements. On or before the [***] following the last day of Company’s fiscal year, Company shall provide MIT with Company’s financial statements for the preceding fiscal year including, at a minimum, a balance sheet and an income statement, certified by Company's treasurer or chief financial officer or by an independent auditor.
5.4 Records and Audit. Company and its agents, as applicable, shall maintain, and Company shall cause its Affiliates and Sublicensees to maintain: (a) in accordance with generally accepted accounting principles, up-to-date, complete, true and accurate books and records in sufficient detail to permit: (i) calculation of all amounts due hereunder, including, without limitation, copies of all invoices properly catalogued and itemized and (ii) confirmation of the accuracy of any reports or information provided pursuant to Section 5.2 (Revenue Reports) and (b) records, reports, notes, lab notebooks and all other relevant information necessary to confirm that products and processes are (or are not) Licensed Products, Procedure Components and/or Licensed Procedures, part (a) and (b), collectively, “Records”. MIT’s appointed agents, shall have the right, at MIT’s expense and subject to a confidentiality agreement with Company substantially similar to the terms set forth in Section 13 (Confidentiality), to audit all existing and relevant Records for all prior Reporting Periods to the extent necessary to perform an audit and, where an audit of Company is not sufficient for purposes of determining compliance under this Agreement, MIT may direct Company to exercise Company’s audit rights under a Sublicense or with respect to an Affiliate. Company shall fully cooperate with such audit and shall permit MIT’s agents to inspect and copy such portions of Records that MIT deems appropriate and necessary up to one (1) time per year upon reasonable advance notice. Books of account and supporting records shall be retained for at least seven (7) years following the end of the Reporting Period to which they pertain. In the event that any audit performed under this Section reveals an underpayment in excess of five percent (5%) during the audited period or any Reporting Period, or Company attempts to hinder MIT’s inspection of all materials relevant to such audit in accordance with this provision, Company shall bear the full cost of such audit. Company shall remit any amounts due to MIT as revealed by such audit within [***] of receiving notice thereof from
MIT. The Parties agree that all applicable statutes of limitation and time-based defenses (including, but not limited to, estoppel and laches) shall be tolled upon any request by MIT for an audit under this Section. The Parties shall cooperate in taking any actions necessary to achieve this result.
6.1 Responsibility for Patent Rights. MIT shall prepare, file, prosecute, and maintain all of the Patent Rights (the “Prosecution Activities”). Company shall cooperate with MIT in the Prosecution Activities, as may be reasonably requested by MIT. MIT shall instruct its patent counsel to provide Company with copies of all patent prosecution documents relating to the Patent Rights (via [***]) and MIT, or MIT’s patent counsel, shall provide Company a reasonable opportunity, if time permits, to review and comment on such materials. MIT shall seriously consider any comments received from Company relating to the Prosecution Activities; however, the Parties hereby agree and acknowledge that MIT has sole authority to make all decisions relating to the Prosecution Activities.
6.2 Common Interest. MIT and Company have a common legal interest in the successful prosecution of valid and enforceable Patent Rights, including but not limited to the defense of any patents in reexamination proceedings, inter partes review proceedings, post grant review proceedings, district court litigation proceedings, or International Trade Commission litigation proceedings and any judicial or other appeals of the foregoing. In furtherance of that common legal interest, Company agrees that it shall not disclose information and communications received from MIT or MIT’s counsel related to the Prosecution Activities to any other party without MIT TLO’s advance written permission. Company further acknowledges that MIT would not share any such information and communications with Company but for the existence of the common legal interest with Company and Company’s confidentiality obligation concerning those communications. In furtherance of that common legal interest, Company may likewise instruct Company’s patent counsel to disclose to MIT TLO communications between Company and Company’s patent counsel with respect to the Patent Rights. MIT agrees that it shall not disclose such communications to any other party without Company’s advance written permission. MIT further acknowledges that Company would not share any such communications with MIT but for the existence of the common legal interest with MIT and MIT’s confidentiality obligation concerning those communications.
6.3 Payment of Patent Expenses. Without limiting Company’s obligation to reimburse MIT for all expenses incurred in connection with the preparation, filing, prosecution, maintenance and defense of the Patent Rights prior to and including the Effective Date, as set forth in Section 4.1(a)(ii), payment of all fees and costs, including attorneys’ fees and translation costs relating to the Prosecution Activities after the Effective Date (including without limitation, costs for continuations, continuations-in-part, divisionals, extensions, reissues, and derivation proceedings) and, subject to Section 7.9, defense costs, such as those related to defending the Patent Rights during reexamination proceedings, inter partes review proceedings, post grant review proceedings, district court litigation proceedings, International Trade Commission litigation proceedings, and foreign patent office proceedings, and any judicial or other appeals of the foregoing (collectively, “Patent Expenses”), shall be the responsibility of Company. Company shall reimburse MIT for all Patent Expenses in accordance with Section 4.2. In all instances, MIT shall pay the fees prescribed for large entities to the United States Patent and Trademark Office. Notwithstanding the foregoing, in the event MIT grants a commercial license(s) to one or more third parties under any of the Patent Rights to develop, use, make and sell Licensed Products, MIT shall make a reasonable allocation in good faith of the Patent Expenses incurred during the term of such commercial license(s) among Company and such third parties. Company is not entitled to any credits or reimbursements for Patent Expenses incurred prior to the effective date of such new commercial license.
7.1 Notice of Infringement. In the event either Party becomes aware of any possible or actual infringement of any Patent Rights in the Field in the Territory (an “Infringement”), that Party shall promptly notify the other Party and provide it with details regarding such Infringement, to the extent known.
7.2 Suit by Company. Provided that Company remains the exclusive licensee of the Patent Rights and is in compliance with the terms of this Agreement, Company shall have the first right, but not the obligation, to take action to enforce the Patent Rights against any Infringement where Company reasonably determines that a third party is commercializing, or has specific plans and is preparing to commercialize, an infringing product in any country that competes with (or reasonably may compete with) a Licensed Product being developed by Company, an Affiliate or a Sublicensee in the Field. For avoidance of doubt, MIT retains the first right to take action to enforce the Patent Rights
against any infringement outside of the Field. Prior to commencing any enforcement action with respect to any Infringement, Company: (a) shall advise MIT (and each Co-Owner, as applicable) in writing of Company’s proposed course of action; (b) at MIT’s request, shall meet with MIT to discuss such proposed course of action; and (c) shall consider in good faith the views of MIT (and each Co-Owner, as applicable) and the potential effects of enforcement activities on MIT and the public interest. Should Company elect to take action to enforce the Patent Rights against any Infringement, Company shall first obtain MIT’s (and each Co-Owner, as applicable) approval of Company’s selected counsel to represent Company and MIT (and each Co-Owner, as applicable), which approval shall not be unreasonably withheld. Once counsel is selected and approved, Company shall keep MIT (and each Co-Owner, as applicable) reasonably informed of the progress of the enforcement action and shall give MIT (and each Co-Owner, as applicable) a reasonable opportunity to offer its views about major decisions affecting the enforcement action or the validity or enforceability of the Patent Rights. Company agrees to consider those views in good faith, but shall have the right to control the action; provided, however, that if Company fails to defend in good faith the validity and/or enforceability of the Patent Rights in the action or, if Company’s exclusive license to a Valid Claim in the action terminates, MIT has the right to take control of the action pursuant to Section 7.6.
7.3 Joinder. If MIT and/or any Co-Owner is a necessary party under applicable law to establish standing for the initiation or maintenance of an enforcement action by Company pursuant to Section 7.2 (Suit by Company), MIT (and each Co-Owner, as applicable) agrees to join as a co-plaintiff in the action, provided that MIT (and each Co-Owner, as applicable) shall not be the first named plaintiff party in such action. Prior to Company initiating a pleading, Company shall obtain MIT’s (and each Co-Owner, as applicable) approval of Company’s selection of jurisdiction and venue, which approval shall not be unreasonably withheld. Company shall make reasonable efforts to minimize any disruption to MIT’s (and each Co-Owner, as applicable) operations resulting from such joinder and participation in the action.
7.4 Costs, Expenses and Fees. The costs and expenses of any action the Company elects to bring shall be paid for entirely by Company. Company shall indemnify MIT (and each Co-Owner, as applicable) and hold MIT (and each Co-Owner, as applicable) free, clear and harmless from and against any and all costs, expenses, damages and liability in connection with any such action, including, without limitation, any and all attorneys’ fees and other costs, expenses, damages and liability that are incurred by either Party (and each Co-Owner, as applicable) with respect to discovery or any other aspect of the prosecution, adjudication, defense, management and/or settlement of, or joinder to, any such action, including any appeals, remands or other related proceedings (including related proceedings seeking to challenge the validity or enforceability of the Patent Rights), or that are awarded against MIT (and each Co-Owner, as applicable) as a party to such action (collectively, “Litigation Expenses”). Company shall pay for all Litigation Expenses directly; if, however, any Litigation Expenses are incurred by MIT (or any Co-Owner, as applicable), Company shall reimburse MIT (and each Co-Owner, as applicable) for all Litigation Expenses within [***] after receiving an invoice from MIT (or each Co-Owner, as applicable) for same.
7.5 Settlement and Recovery. Company must obtain MIT’s (and each Co-Owner’s, as applicable) written consent before offering or accepting any compromise or settlement, which such consent shall not be unreasonably withheld or delayed. In the event Company exercises its right to commence an enforcement action pursuant to Section 7.2 (Suit by Company), out of any sums recovered in such suit or in settlement thereof, Company shall first reimburse MIT (and each Co-Owner, as applicable) for any unreimbursed Litigation Expenses and then may reimburse itself for all litigation costs and expenses, including reasonable attorneys’ fees, incurred by Company in the prosecution of any such suit. If, after such reimbursement, any funds shall remain from said recovery, then MIT shall receive an amount equal to [***] of such funds and the remaining [***] of such funds shall be retained by Company.
7.6 Suit by MIT. If Company does not take action to enforce the Patent Rights against Infringement pursuant to Section 7.2 (Suit by Company), and has not commenced negotiations with the alleged infringer for the discontinuance of said Infringement, then, within [***] after notification of the existence of an Infringement has been given to MIT pursuant to Section 7.1 (Notice of Infringement), or such other time as the Parties may mutually agree to, MIT may elect to enforce the Patent Rights against such Infringement. Upon written request from MIT, Company agrees to join as a co-plaintiff in the action. Should MIT elect to bring suit against an alleged infringer and Company is joined as party plaintiff in any such suit, Company shall have the right to approve the counsel selected by MIT to represent MIT and Company, such approval not to be unreasonably withheld. All Litigation Expenses shall be paid for entirely by MIT and each Co-Owner, as applicable. MIT and each Co-Owner, as applicable shall not compromise or settle such litigation without the prior written consent of Company, which consent shall not be unreasonably withheld or delayed. In the event MIT exercises its right to sue pursuant to this Section 7.6 (Suit by MIT), it shall first
reimburse itself out of any sums recovered in such suit or in settlement thereof for all Litigation Expenses. If, after such reimbursement, any funds shall remain from said recovery, then Company shall receive an amount equal to [***] of such funds and the remaining [***] of such funds shall be retained by MIT.
7.7 Own Counsel. Without limiting each Party’s (and each Co-Owner’s, as applicable) right to approve counsel pursuant to Section 7.2 (Suit by Company) and Section 7.6 (Suit by MIT), each Party (and each Co-Owner, as applicable) shall always have the right to also be represented by counsel of its own selection and at its own expense in any suit for Infringement instituted under this Article 7 by the other Party.
7.8 Cooperation. Each Party agrees to cooperate fully in any action under this Article 7 that is controlled by the other Party, provided that the controlling Party reimburses the cooperating Party promptly for any costs and expenses incurred by the cooperating Party in connection with providing such assistance.
7.9 Patent Challenge. If a Patent Challenge (including, but without limitation, a declaratory judgment action) is brought naming Company and/or any of its Affiliates or Sublicensees as a defendant and alleging invalidity or unenforceability of any claims within the Patent Rights, Company shall promptly notify MIT in writing and MIT may elect, upon written notice to Company, to take over the sole defense of the invalidity and/or unenforceability aspect of the Patent Challenge at its own expense. Notwithstanding the foregoing, in the event such declaratory judgment action is brought by the defendant of an action commenced by Company pursuant to Section 7.2 (Suit by Company), or by an alleged infringer about whom Company has previously notified MIT and about which Company has considered exercising its rights pursuant to Section 7.2 (Suit by Company), Company shall have the first right to take over the sole defense of such declaratory judgment action at its own expense and in accordance with the procedures set forth in Section 7.2 (Suit by Company) (e.g., providing notice and progress updates and acquiring approval for joint counsel if and as necessary from MIT (and each Co-Owner, as applicable)).
8.1 Indemnification.
8.2 Insurance.
9.1 DISCLAIMER OF WARRANTIES. MIT AND CO-OWNER(S) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE PATENT RIGHTS, (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY BY MIT THAT IT CAN OR WILL BE ABLE TO OBTAIN PATENTS ON PATENT APPLICATIONS INCLUDED IN THE PATENT RIGHTS AND ANY WARRANTY AS TO THE COMMERCIAL OR SCIENTIFIC VALUE OF THE PATENT RIGHTS) AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF MIT, CO-OWNER(S) OR THIRD PARTIES, VALIDITY, ENFORCEABILITY AND SCOPE OF THE PATENT RIGHTS, WHETHER ISSUED OR PENDING, AND THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE.
9.2 LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO COMPANY’S INDEMNIFICATION OBLIGATIONS HEREUNDER IN NO EVENT SHALL MIT, CO-OWNER(S), COMPANY, THEIR RESPECTIVE TRUSTEES, DIRECTORS, OFFICERS, FACULTY, STUDENTS, EMPLOYEES, AGENTS AND AFFILIATES BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING ECONOMIC DAMAGES OR INJURY TO PROPERTY AND LOST PROFITS (WHETHER SUCH LOST PROFITS ARE CHARACTERIZED AS DIRECT OR INDIRECT DAMAGES), REGARDLESS OF WHETHER MIT OR CO-OWNERS OR COMPANY SHALL BE ADVISED, SHALL HAVE OTHER REASON TO KNOW, OR IN FACT SHALL KNOW OF THE POSSIBILITY OF THE FOREGOING; PROVIDED, HOWEVER, THAT THE LIMITATION OF COMPANY’S LIABILITY UNDER THIS SECTION 9.2 SHALL NOT APPLY TO ANY LIABILITY ARISING FROM COMPANY’S GROSS NEGLIGENCE AND/OR INTENTIONAL MISCONDUCT.
11.1 Compliance with Laws. Company shall, and shall cause its Affiliates and Sublicensees, as necessary, to comply with all applicable local, state, federal, and international laws and regulations relating to this Agreement, including, but without limitation, all applicable U.S. export control laws and regulations, including, without limitation, regulations administered by OFAC (31 C.F.R. Parts 500-599), the Export Administration Regulations (15 C.F.R. Parts 730-774) and the U.S. International Traffic in Arms Regulations (22 C.F.R. Parts 120-130). Company acknowledges that the application of such laws and regulations extends to, but is not limited to, transfers to its non-U.S. Affiliates, partners, parent organizations, and other related non-U.S. entities. Company hereby gives written assurance that it will comply with, and will cause its Affiliates and Sublicensees to comply with, all United States export control laws and regulations, that Company bears sole responsibility for any violation of such laws and regulations by itself or its Affiliates or Sublicensees, and that Company will indemnify, defend, and hold MIT and Co-Owner(s) harmless and whole (in accordance with Section 8.1 (Indemnification)) for the consequences of any such violation.
11.2 Registration. As required by applicable law, Company shall, and shall cause its Affiliates and Sublicensees, as necessary, to register or record this Agreement with the relevant government authority. After the completion of the registration and recordation, Company shall provide MIT with documentation of registration and recordation issued by the government authorities with respect to this Agreement. The costs of the registration and filing shall be borne by Company.
11.3 Use of MIT Name. During the Term, Company may make certain factual statements that it has entered into this Agreement with MIT. Such statements may be made in connection with general company information (e.g., statements regarding company history or technology background), in annual shareholder reports or investor presentations, or as required by law in filings with the U.S. Securities and Exchange Commission; however, no such statement may be used in advertising or other promotional material or activities or in any manner to suggest or imply MIT’s or Co-Owner(s)’ endorsement of Company, its products or its services. Except as specifically permitted herein, Company shall not otherwise use or allow the use of the name of “Massachusetts Institute of Technology,” “Lincoln Laboratory”, “Massachusetts General Hospital” or any variation, adaptation, or abbreviation thereof, or of any of its trustees, officers, faculty, students, employees, or agents, or any trademark owned by MIT or any Co-Owner, or any terms of this Agreement in any other public announcement or disclosure without the prior written consent of MIT’s Institute Office of Communications ([***]), and Hospital’s Chief Public Affairs Officer, which consent MIT or Co-Owner may withhold in its sole discretion. If Company seeks to use the name of an individual trustee, officer, faculty, student, employee or agent, Company must receive the written consent of such individual.
11.4 Marking of Licensed Products. To the extent commercially feasible and consistent with prevailing business practices, Company shall, and shall cause its Affiliates and Sublicensees, as necessary, to mark all Licensed Products that are manufactured or sold under this Agreement in order to notify the public and competitors that such products are patented.
12.1 Voluntary Termination by Company. Company shall have the right to terminate this Agreement, for any reason, upon at least [***] prior written notice to MIT, provided that all amounts due to MIT have been paid by Company up to and including such termination effective date.
12.2 Termination for Default; Cessation of Business.
12.3 Effect of Termination.
12.4 Survival. Any provision that by its nature is intended to survive the expiration or termination of this Agreement shall survive, including but not limited to:
12.5 Accruing Obligations. In no event shall termination or expiration of this Agreement release Company from the obligation to pay any amounts that became due or payable on or before the date of such termination or expiration.
13.1 Company Confidential Information. “Company Confidential Information” means any proprietary information, which may include progress reports, financial statements, revenue reports, or Sublicense agreements, and which are provided to MIT’s Technology Licensing Office pursuant to this Agreement. Company Confidential Information shall be marked with a legend indicating its confidential status (such as “Confidential” or “Proprietary”). Company Confidential Information shall not include:
13.2 Non-Disclosure. For a period of [***] after disclosure of the Company Confidential Information, MIT shall treat Company Confidential Information as confidential and shall not disclose it except as permitted herein without the prior written consent of the Company.
13.3 Permitted Disclosures. MIT may disclose the Company Confidential Information to its officers, employees, contractors, consultants (including lawyers and financial advisors),
Co-Owner(s), sponsors of the Patent Rights and Assignees, to the extent they have a need to know for purposes of this Agreement and/or MIT’s internal compliance requirements and are subject to confidentiality obligations at least as protective of such Company Confidential Information as this Article 13.
13.4 Disclosure Required by Law. Notwithstanding the above, MIT may disclose Company Confidential Information to the extent required by law, regulation, subpoena, court order, or comparable valid legal process, provided that MIT shall (unless legally prohibited) give Company prompt written notice in order for Company to have the opportunity to take appropriate measures to protect its Confidential Information.
14.1 Notice. Any notices required or permitted under this Agreement shall be in writing, shall specifically refer to this Agreement, and shall be sent by hand, recognized national overnight courier, confirmed electronic mail (e.g., by means of read receipt or specific acknowledgment by recipient of receipt through responsive email), or registered or certified mail, postage prepaid, return receipt requested, to the following addresses of the Parties:
14.2 Governing Law/Jurisdiction. This Agreement and all disputes arising out of or related to this Agreement, or the performance, enforcement, breach or termination hereof, and any remedies relating thereto, shall be construed, governed, interpreted and applied in accordance with the laws of the Commonwealth of Massachusetts, U.S.A., without regard to conflict of laws principles, except that questions affecting the construction and effect of any patent shall be determined by the law of the country in which the patent shall have been granted. The state and federal courts having jurisdiction over Cambridge, MA, U.S.A., provide the exclusive forum for any Patent Challenge and/or any court action between the Parties relating to this Agreement. Company submits to the jurisdiction of such courts and waives any claim that such court lacks jurisdiction over Company or constitutes an inconvenient or improper forum. Further, the Parties expressly waive any right to a jury trial in any legal proceeding.
14.3 Force Majeure. Neither Party will be responsible for delays resulting from causes beyond the reasonable control of such Party, including without limitation fire, explosion, flood, war, strike, or riot, provided that
the nonperforming Party uses commercially reasonable efforts to avoid or remove such causes of nonperformance and continues performance under this Agreement promptly whenever such causes are removed.
14.4 Amendment and Waiver. This Agreement may be amended, supplemented, or otherwise modified only by means of a written instrument signed by both Parties. Any waiver of any rights or failure to act in a specific instance shall not be construed as an agreement to waive any rights or fail to act in any other instance, whether or not similar.
14.5 Dispute Resolution. Each Party shall continue to perform its undisputed obligations under this Agreement pending final resolution of any dispute arising out of or relating to this Agreement; provided, however, that a Party may suspend performance of its undisputed obligations during any period in which the other Party fails or refuses to perform its undisputed obligations. Nothing in this Article is intended to relieve Company from its obligation to make undisputed payments pursuant to Articles 4 and 6 of this Agreement.
14.6 Severability. In the event that any provision of this Agreement shall be held invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect any other provision of this Agreement.
14.7 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
14.8 Headings. All headings are for convenience only and shall not affect the meaning of any provision of this Agreement.
14.9 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to this subject matter and supersedes all prior agreements or understandings between the Parties relating to this subject matter, including but not limited to the .
APPENDIX A
APPENDIX B