Common use of Appointment and Grant Clause in Contracts

Appointment and Grant. 2.1 Subject to the terms and conditions of this Agreement, XDx hereby appoints Diaxonhit for the Term, on an exclusive basis, to Promote and Distribute the Product in the Territory and Diaxonhit hereby accepts such appointment. 2.2 Subject to the terms and conditions of this Agreement, XDx hereby grants to Diaxonhit an exclusive license for the Term to Promote and Distribute the Product in the Territory in accordance with this Agreement under the Trademark and using the Patents and the Information, together with the right to grant sub-licenses, subcontract and sub-distribute its rights in accordance with this Agreement. Diaxonhit may grant sublicenses only in accordance with clause 2.12 or with the prior written consent of XDx. 2.3 XDx shall have no right to Promote, Distribute, offer for sale and/or sell the Product or Competing Products in the Territory in any manner, including under the Trademark or using the Patents, and to grant to any Person or Persons the right and license to do any or all of the foregoing. In the event XDx undergoes a Change of Control, this Section 2.3 shall not apply to any independent products or tests developed and/or commercialized by any acquiror or merger partner of XDx. 2.4 Diaxonhit shall not and shall procure that its Affiliates, Sales Agents and Sub-Distributors will not Distribute or Promote Product directly or indirectly to any Person in any country that is outside of the Territory. 2.5 Diaxonhit undertakes, subject to termination or expiry of this Agreement, that it shall purchase its and its Affiliates’ and Sales Agents entire requirement of the Products exclusively from XDx or the Designee during the Term of this Agreement. 2.6 Diaxonhit undertakes, subject to termination or expiry of this Agreement, that, for the Term and for a period of no longer than two (2) years from the expiry or termination date hereof it shall not, and shall ensure that its Affiliates shall not, be engaged or interested directly or indirectly in the development, manufacture, formulation, packaging, promotion, sale, or distribution in the Territory of any Competing Product. In the event Diaxonhit undergoes a Change of Control, this Section 2.6 shall not apply to any independent products or tests developed and/or commercialized by any acquiror or merger partner of Diaxonhit. 2.7 Diaxonhit shall: (A) keep full and proper books of account and records showing clearly all enquiries, quotations, transactions and proceedings relating to Products; (B) keep all stocks of Products which it holds in conditions which accord with XDx’s Specifications; (C) ensure it does not give any warranties concerning the Product other than those specifically provided by XDx, or Promote the Product for use other than those uses specifically included within the Regulatory Approvals; and (D) not make any claims or encourage any use of the Product which has not been approved by XDx. 2.8 Diaxonhit shall not: (A) represent itself as an agent of XDx for any purpose; (B) pledge XDx’s credit; (C) give any warranty or make any representation on XDx’s behalf; (D) commit or purport to commit XDx to any contract or otherwise incur any liability on behalf of XDx; (E) make any promises, warranties or guarantees with reference to the Products beyond those contained in the current Promotional Material approved by XDx without XDx’s prior written consent; (F) make any material changes to Diaxonhit’s Promotional Code and promotional activities as in place on the Effective Date; or (G) undertake any activity with respect to the Product in violation of the Promotional Code. 2.9 Diaxonhit shall comply with all Applicable Laws and Regulations and each Regulatory Approval in respect of its performance of this Agreement. 2.10 If, at any time, XDx wishes to launch, or grant a third party a licence to launch the Product or the Test in any of the Additional Territories then it shall first notify Diaxonhit in writing. XDx and Diaxonhit shall meet and conduct negotiations in good faith with a view to agreeing to amend this Agreement to include such an Additional Territory as part of the Territory. XDx shall not, and shall ensure that its Affiliates shall not, conduct any negotiations with any third party with respect to such licence or launch of the Products in the Additional Territories for a period of four (4) months following the service of such notice. 2.11 Other than as expressly provided in this Agreement, nothing in this Agreement shall be construed to confer any rights upon either Party by implication, estoppels, or otherwise as to any technology or patent rights of a Party.