Common use of Failure Clause in Contracts

Failure. If Licensee believes that it will not achieve one or more Development Milestones with respect to Licensed Products, it may notify Harvard in writing in advance of the relevant deadline. Licensee shall include with such notice an explanation of the reasons for such failure, a proposal for extending and/or amending the relevant milestone(s), and a detailed written plan for promptly achieving such extended and/or amended milestone(s). If Licensee does not provide Harvard with a reasonable explanation of its failure to meet the relevant Development Milestone(s) (and lack of finances shall not constitute reasonable basis for such failure) or does not provide Harvard with a reasonable proposed extension and/or amendment, Harvard may notify Licensee in writing of Licensee’s failure to meet the relevant Development Milestone(s) and, in such event, shall allow Licensee ninety (90) days to cure such failure. Subject to the last sentence of this section, Licensee’s failure to cure within such ninety (90) day period shall constitute a material breach of this Agreement (a ‘‘Development Breach”) entitling Harvard to proceed solely under this Section 3.4. In the event of a Development Breach where the relevant Development Milestone pertains to a Type I Licensed Product, Harvard shall have the right, in lieu of its rights under Section 10.2.3, to terminate the licenses granted in this Agreement only as they apply to Type I Licensed Products. In the event Licensee (a) commits a Development Breach with respect to two Type II Licensed Products or (b) commits a Development Breach with respect to one Type II Licensed Product after already having committed a Development Breach with respect to a Type I Licensed Product, Harvard shall have the right, in lieu of its rights under Section 10.2.3, only to convert the license granted in Section 2.1.1 as it applies to Type II Licensed Products and Licensed Services into a non-exclusive, non-transferable, worldwide license (without the right to sublicense). Notwithstanding the foregoing, if Licensee does provide Harvard with an explanation of its failure to meet the relevant Development Milestone(s) and a proposed extension and/or amendment that is reasonably THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. acceptable to Harvard, Exhibit 1.3 shall be amended automatically to incorporate such extension and/or amendment, as applicable. For clarity, if and only if Licensee fails to achieve a Development Milestone and does not avail itself of any aspect of the procedure set forth in this Section 3.4 (e.g., by failing to notify Harvard in accordance with the first sentence of this Section 3.4), such failure to achieve the Development Milestone shall be a material breach that entitles Harvard to proceed under Section 10.2.3.

Failure. If Licensee believes that it will not achieve one or more Development Milestones with respect to Licensed Products, it may notify Harvard in writing in advance of the relevant deadline. Licensee shall include with such notice an explanation of the reasons for such failure, a proposal for extending and/or amending the relevant milestone(s), and a detailed written plan for promptly achieving such extended and/or amended milestone(s). If Licensee does not provide Harvard with a reasonable explanation of its failure to meet the relevant Development Milestone(s) (and lack of finances shall not constitute reasonable basis for such failure) or does not provide Harvard with a reasonable proposed extension and/or amendment, Harvard may notify Licensee in writing of Licensee’s failure to meet the relevant Development Milestone(s) and, in such event, shall allow Licensee ninety (90) days to cure such failure. Subject to the last sentence of this section, Licensee’s failure to cure within such ninety (90) day period shall constitute a material breach of this Agreement (a ‘‘Development Breach”) entitling Harvard to proceed solely under this Section 3.4. In the event of a Development Breach where the relevant Development Milestone pertains to a Type I Licensed Product, Harvard shall have the right, in lieu of its rights under Section 10.2.3, to terminate the licenses granted in this Agreement only as they apply to Type I Licensed Products. In the event Licensee (a) commits a Development Breach with respect to two Type II Licensed Products or (b) commits a Development Breach with respect to one Type II Licensed Product after already having committed a Development Breach with respect to a Type I Licensed Product, Harvard shall have the right, in lieu of its rights under Section 10.2.3, only to convert the license granted in Section 2.1.1 as it applies to Type II Licensed Products and Licensed Services into a non-exclusive, non-transferable, worldwide license (without the right to sublicense). Notwithstanding the foregoing, if Licensee does provide Harvard with an explanation of its failure to meet the relevant Development Milestone(s) and a proposed extension and/or amendment that is reasonably acceptable to Harvard, Exhibit 1.3 shall be amended automatically to incorporate such 12 THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. acceptable to Harvard, Exhibit 1.3 shall be amended automatically to incorporate such extension and/or amendment, as applicable. For clarity, if and only if Licensee fails to achieve a Development Milestone and does not avail itself of any aspect of the procedure set forth in this Section 3.4 (e.g., by failing to notify Harvard in accordance with the first sentence of this Section 3.4), such failure to achieve the Development Milestone shall be a material breach that entitles Harvard to proceed under Section 10.2.3.

Failure. If Licensee believes that it will not achieve one or more Development Milestones with respect to Licensed Products, it may notify Harvard in writing in advance of the relevant deadline. Licensee shall include with such notice an explanation of the reasons for such failure, a proposal for extending and/or amending the relevant milestone(s), and a detailed written plan for promptly achieving such extended and/or amended milestone(s). If Licensee does not provide Harvard with a reasonable explanation of its failure to meet the relevant Development Milestone(s) (and lack of finances shall not constitute reasonable basis for such failure) or does not provide Harvard with a reasonable proposed extension and/or amendment, Harvard may notify Licensee in writing of Licensee’s failure to meet the relevant Development Milestone(s) and, in such event, shall allow Licensee ninety (90) days to cure such failure. Subject to the last sentence of this section, Licensee’s failure to cure within such ninety (90) day period shall constitute a material breach of this Agreement (a ‘‘Development Breach”) entitling Harvard to proceed solely under this Section 3.4. In the event of a Development Breach where the relevant Development Milestone pertains to 80198190_1 a Type I Licensed Product, Harvard shall have the right, in lieu of its rights under Section 10.2.3, to terminate the licenses granted in this Agreement only as they apply to Type I Licensed Products. In the event Licensee (a) commits a Development Breach with respect to two Type II Licensed Products or (b) commits a Development Breach with respect to one Type II Licensed Product after already having committed a Development Breach with respect to a Type I Licensed Product, Harvard shall have the right, in lieu of its rights under Section 10.2.3, only to convert the license granted in Section 2.1.1 as it applies to Type II Licensed Products and Licensed Services into a non-exclusive, non-transferable, worldwide license (without the right to sublicense). Notwithstanding the foregoing, if Licensee does provide Harvard with an explanation of its failure to meet the relevant Development Milestone(s) and a proposed extension and/or amendment that is reasonably THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. acceptable to Harvard, Exhibit 1.3 shall be amended automatically to incorporate such extension and/or amendment, as applicable. For clarity, if and only if Licensee fails to achieve a Development Milestone and does not avail itself of any aspect of the procedure set forth in this Section 3.4 (e.g., by failing to notify Harvard in accordance with the first sentence of this Section 3.4), such failure to achieve the Development Milestone shall be a material breach that entitles Harvard to proceed under Section 10.2.3.

Failure. If Licensee believes that it will not achieve one or more Development Milestones with respect to Licensed Products, it may notify Harvard in writing in advance of the relevant deadline. Licensee shall include with such notice an explanation of the reasons for such failure, a proposal for extending and/or amending the relevant milestone(s), and a detailed written plan for promptly achieving such extended and/or amended milestone(s). If Licensee does not provide Harvard with a reasonable explanation of its failure to meet the relevant Development Milestone(s) (and lack of finances shall not constitute reasonable basis for such failure) or does not provide Harvard with a reasonable proposed extension and/or amendment, Harvard may notify Licensee in writing of Licensee’s failure to meet the relevant Development Milestone(s) and, in such event, shall allow Licensee ninety (90) days to cure such failure. Subject to the last sentence of this section, Licensee’s failure to cure within such ninety (90) day period shall constitute a material breach of this Agreement (a ‘‘Development Breach”) entitling Harvard to proceed solely under this Section 3.4. In the event of a Development Breach where the relevant Development Milestone pertains to a Type I Licensed Product, Harvard shall have the right, in lieu of its rights under Section 10.2.3, to terminate the licenses granted in this Agreement only as they apply to Type I Licensed Products. In the event Licensee (a) commits a Development Breach with respect to two Type II Licensed Products or (b) commits a Development Breach with respect to one Type II Licensed Product after already having committed a Development Breach with respect to a Type I Licensed Product, Harvard shall have the right, in lieu of its rights under Section 10.2.3, only to convert the license granted in Section 2.1.1 as it applies to Type II Licensed Products and Licensed Services into a non-exclusive, non-transferable, worldwide license (without the right to sublicense). Notwithstanding the foregoing, if Licensee does provide Harvard with an explanation of its failure to meet the relevant Development Milestone(s) and a proposed extension and/or amendment that is reasonably acceptable to Harvard, Exhibit 1.3 shall be amended automatically to incorporate such THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. acceptable to Harvard, Exhibit 1.3 shall be amended automatically to incorporate such extension and/or amendment, as applicable. For clarity, if and only if Licensee fails to achieve a Development Milestone and does not avail itself of any aspect of the procedure set forth in this Section 3.4 (e.g., by failing to notify Harvard in accordance with the first sentence of this Section 3.4), such failure to achieve the Development Milestone shall be a material breach that entitles Harvard to proceed under Section 10.2.3.