Patent Prosecution and Enforcement There are no provisions in such related license agreement concerning the prosecution, maintenance, enforcement or defense with respect to the Licensed Patents.
Patent Enforcement (a) Each Party shall promptly notify the other after becoming aware of any alleged or threatened infringement by a Third Party of any Pandion Collaboration IP Patent Right, Astellas Collaboration IP Patent Right or Joint Collaboration IP Patent Right, including any “patent certification” filed in the United States under 21 U.S.C. §355(b)(2) or 21 U.S.C. §355(j)(2) or similar provisions in other jurisdictions and of any declaratory judgment, opposition, or similar action alleging the invalidity, unenforceability or non-infringement of any Pandion Collaboration IP Patent Right, Astellas Collaboration IP Patent Right or Joint Collaboration IP Patent Right (collectively, “Infringement”).
(b) Astellas shall have the first right to bring and control any legal action in connection with any Infringement at its own expense as it reasonably determines appropriate, and Pandion shall have the right to be represented in any such action by counsel of its choice. Astellas shall provide Pandion and its counsel with copies all court filings and material supporting documentation, and, at the request of Pandion, reasonable access to Astellas’ counsel for consultation, provided that, unless Pandion is joined as a party to such action, any counsel retained by Pandion shall not act as attorney of record for any such action, or conduct any legal proceedings as part of such action, unless specifically requested by Astellas and at Astellas’ expense. If Astellas decides not to bring such legal action, it shall so notify Pandion promptly in writing and Pandion shall have the right to bring and control any legal action in connection with such Infringement at its own expense as it reasonably determines appropriate after consultation with Astellas.
(c) At the request of the Party bringing the action, the other Party shall provide reasonable assistance in connection therewith, including by executing reasonably appropriate documents, cooperating in discovery and joining as a party to the action if required.
(d) In connection with any such proceeding, the Party bringing the action shall not enter into any settlement admitting the invalidity of, or otherwise impairing the other Party’s rights in, the Pandion Collaboration IP Patent Rights, Astellas Collaboration IP Patent Rights or Joint Collaboration IP Patent Rights without the prior written consent of the other Party.
(e) Any recoveries resulting from enforcement action relating to a claim of Infringement shall be first applied against payment of each Party’s costs and expenses in connection therewith. Any such recoveries in excess of such costs and expenses (the “Remainder”) shall be split as follows: (i) if Astellas brought the enforcement action, Astellas shall receive [**] percent ([**]%) of the Remainder and Pandion shall receive [**] percent ([**]%) of the Remainder, and (ii) if Pandion brought the enforcement action, Pandion shall receive [**] percent ([**]%) of the Remainder and Astellas shall receive [**] percent ([**]%) of the Remainder.
Audits, Inspection and Enforcement Within ten (10) days of a request by CE, BA and its agents and subcontractors shall allow CE or its agents or subcontractors to conduct a reasonable inspection of the facilities, systems, books, records, agreements, policies and procedures relating to the use or disclosure of Protected Information pursuant to this Addendum for the purpose of determining whether BA has complied with this Addendum or maintains adequate security safeguards; provided, however, that (i) BA and CE shall mutually agree in advance upon the scope, timing, and location of such an inspection, (ii) CE shall protect the confidentiality of all confidential and proprietary information of BA to which CE has access during the course of such inspection; and (iii) CE shall execute a nondisclosure agreement, upon terms mutually agreed upon by the parties, if requested by BA. The fact that CE inspects, or fails to inspect, or has the right to inspect, BA’s facilities, systems, books, records, agreements, policies, and procedures does not relieve BA of its responsibility to comply with this Addendum, nor does CE’s (i) failure to detect or (ii) detection, but failure to notify BA or require BA’s remediation of any unsatisfactory practices, constitute acceptance of such practice or a waiver of CE’s enforcement rights under the Contract or Addendum. BA shall notify CE within five (5) days of learning that BA has become the subject of an audit, compliance review, or complaint investigation by the Office of Civil Rights or other state or federal government entity.
Enforcement of Patent Rights 8.1. The Licensors and Licensee will promptly inform the other in writing of any actual, alleged, or suspected infringement of a Licensed Patent or violation of any Patent Right by a third party, of which it is aware, and provide available evidence of infringement.
8.2. With respect to any Patent Rights licensed exclusively by Licensors to Licensee under this Agreement, Licensee shall have, for an initial period of ninety (90) days following notice under the provisions of Section 8.1, the first right, but not the obligation, to institute and control the prosecution of a suit or to take any other action for infringement of the Patent Rights. Licensee will notify Foundation of its intent to institute such action, in writing. Each Licensor having an ownership interest in the Patent Rights at issue will have thirty (30) days from receipt of such notice to notify Licensee that it will join Licensee in such action under the provisions of Section 8.4.
8.3. Subsequent to Licensee's initial ninety day period, the Licensor or Licensors having an ownership interest in the Patent Rights at issue shall have the right, but not the obligation, to institute and control the prosecution of a suit or to take any other action for infringement of any of the Patent Rights, provided that withholding of consent shall not be reasonable unless the benefit of foregoing a suit or any action for infringement of the Patent Rights has a benefit of like magnitude for both Licensee and such Licensor or Licensors. If such Licensor or Licensors decide to initiate a lawsuit to enforce Patent Rights pursuant to this Section 8.3, Foundation will notify Licensee in writing. Licensee will have thirty (30) days from receipt of such notice to notify Foundation that Licensee will join such Licensor or Licensors in such lawsuit under the provisions of Section 8.4.
8.4. The Licensee and such Licensor or Licensors may agree to enforce patent rights jointly, including by filing a lawsuit jointly or by one Party joining a lawsuit initiated by another Party. If a lawsuit is brought jointly in the names of such Licensor or Licensors and Licensee, then the out-of-pocket costs shall be borne equally between such Licensor or Licensors and Licensee, and any recovery or settlement shall be shared equally. Such Licensor or Licensors and Licensee shall agree to the manner in which they shall exercise control over such lawsuit. Each Party may, at its own option and expense, be represented by separate counsel of its own selection.
8.5. If any suit is brought involving the enforcement or defense of the Patent Rights, the other Parties hereto agree, at the request and expense of the Party initiating such suit, to reasonably cooperate and to make available relevant records, papers, information, samples, specimens and the like.
8.6. No settlement or consent judgment or other voluntary final disposition of an enforcement or defense suit initiated by any Party to this Agreement may be entered into without the consent of Licensee and such Licensor or Licensors, which consent will not be unreasonably withheld.
8.7. Licensee shall control any declaratory judgment litigation brought to challenge the validity, enforceability, and/or infringement of the Patent Rights, including the selection of litigation counsel. All other parties to this Agreement having an ownership interest in the Patent Rights shall cooperate fully in connection with such litigation. Licensee shall bear any and all costs of the action and shall be solely responsible for any and all damages, awards or settlements, including any award of costs to the prevailing party.
8.8. The total cost of any action commenced or defended solely by such Licensor or Licensors, will be borne by such Licensor or Licensors, and such Licensor or Licensors will keep any recovery or damages derived therefrom. Licensee agrees to be named as plaintiff and participate in the lawsuit and take further steps (at Licensor's or Licensors' expense, including any award of costs to the prevailing party) to the extent necessary for legal standing purposes. The Licensee agrees, at the request and expense of such Licensor or Licensors, to reasonably cooperate and to make available relevant records and information, execute required documents, and do other acts as such Licensor or Licensors may reasonably request from time to time. Any recovery or damages resulting from such an action will first be applied to such Licensor's or Licensors' out-of-pocket expenses and legal fees, and second will be applied to the Licensees' out-of-pocket expenses, including legal fees and other costs associated with cooperation as described above.
8.9. The cost of any infringement action commenced or defended by Licensee which such Licensor or Licensors decline to join under Section 8.4 of this Agreement will be borne by Licensee. Such Licensor or Licensors agree to be named as plaintiffs and participate in the lawsuit and take further steps (at Licensee's expense, including any award of costs to the prevailing party) to the extent necessary for legal standing purposes. Such Licensor or Licensors agree, at the request and expense of Licensee, to reasonably cooperate and to make available relevant records and information, execute required documents, and do other acts as the Licensee may reasonably request from time to time. Any recovery or damages resulting from such an action will first be applied to Licensee's out-of-pocket expenses and legal fees, and second will be applied to the such Licensor's or Licensors' out-of-pocket expenses, including legal fees and other costs associated with cooperation as described above. Any excess recovery or damages for past sales will be deemed Net Sales by a Sublicensee, and Licensee will pay Foundation Royalties at the rates specified in Section 3.2 above. Any remaining excess recovery or damages will be deemed Sublicensing Fees and will be shared as specified in Section 3.S(a). The Parties will negotiate in good faith appropriate compensation to such Licensor or Licensors for any non-cash settlement or non-cash cross-license.
Compliance and Enforcement 1. These compliance and enforcement provisions address the additional contractual remedies available to Board as a result of Concessionaire’s failure, if any, to comply with the obligations set forth in the ACDBE Program requirements. The contractual remedies set forth in the ACDBE Program are also applicable to any failure to comply with the Program requirements, as well as any remedies available at law or in equity. These remedies are not intended to apply to any failure by Concessionaire to comply with other obligations under this Agreement unrelated to the Program requirements or preclude Board’s recovery of its actual damages for such unrelated breaches.
2. The Concessionaire and its ACDBE business partners must attend and participate in onboarding, progress, or non-compliance meetings and site visits upon request. The Concessionaire must forward all necessary documents and information during the course of performance under this Agreement and to close out the agreement and must cooperate with BDDD in providing any information, including the final accounting for ACDBE participation on this Agreement.
3. BDDD is empowered to receive and investigate complaints and allegations by ACDBEs, third parties or Board Staff, or to initiate its own investigations, regarding Concessionaire’s compliance with the ACDBE Program requirements. If BDDD determines that an investigation is warranted, Concessionaire must fully cooperate with the investigation and provide complete, truthful information to the Board concerning the investigation and Concessionaire’s compliance with the ACDBE Program requirements.
4. The failure of Concessionaire to meet the ACDBE contractual commitment or comply with any other aspect of the ACDBE Program requirements may constitute a material breach of this Agreement, entitling the Board to exercise any remedy available in this agreement/contract, the Program requirements or applicable law.
5. The Board may report any suspected false, fraudulent or dishonest conduct relating to the Concessionaire’s performance of the Program requirements to the Board’s Department of Audit Services or to any applicable enforcement agency, including the State Attorney General's Office and appropriate federal law enforcement authorities.
6. If Concessionaire/contractor is in breach of any of the Program requirements/ACDBE contract provisions, including non-payment of a contractor/subcontractor, the Board may exercise any of following remedies, in addition to any other remedies available to it under this agreement/contract or at law or in equity:
(a) withholding funds payable under this agreement/contract, including, but not limited to, funds payable for work self- performed by the Concessionaire/contractor or applicable retainage;
(b) temporarily suspending, at no cost to DFW, Concessionaire performance under the Lease;
(c) termination of this Lease;
(d) suspension/debarment, in accordance with applicable law, of Concessionaire/contractor from participating in any solicitations issued by DFW for severity of breach of contract; and
7. With respect to ACDBE firms, a finding of non-compliance could result in a denial of certification or removal of eligibility and/or suspension and debarment.
8. With respect to a firm not meeting their commitment on a previous lease or the underutilization of an ACDBE on a previous lease, BDDD shall regard as non-responsive any proposal or competitive selection process proposal received.
9. In the case of a joint venture with more than one ACDBE partner, if one ACDBE partner is non-compliant the entire joint venture is deemed non- compliant.
A. GENERAL REQUIREMENTS
1. It is the policy of the Dallas/Fort Worth International Airport Board of Directors (“Airport Board”) to support the growth and development of Minority/Women Business Enterprises (“M/WBE”) that can successfully compete for Airport prime contracting and subcontracting opportunities.
Enforcement of Patents As between the Parties, (i) Prosecuting Party pursuant to 6.2.2 shall have the first right, but not the obligation, to prosecute any Infringement with respect to the Exclusive Licensed Patents including as a defense or counterclaim in connection with any Third Party Infringement Claim, at Prosecuting Party’s sole cost and expense, using counsel of Prosecuting Party’s choice and (ii) MedImmune shall have the sole right, but not the obligation, to prosecute Infringement with respect to the Non-Exclusive Licensed Technology, including as a defense or counterclaim in connection with any Third Party Infringement Claim, at MedImmune’s sole cost and expense, using counsel of its choice. For purposes of this Section 6.3, the Party prosecuting any Infringement pursuant to the foregoing sentence with respect to a Patent shall be the “Enforcing Party.” In the event MedImmune prosecutes any such Infringement in the Field in the Territory, Licensee shall have the right to join as a party to such claim, suit or proceeding and participate with its own counsel at its sole cost and expense; provided that MedImmune shall retain control of the prosecution of such claim, suit or proceeding, including the response to any defense or defense of any counterclaim raised in connection therewith. In the event Licensee prosecutes any such Infringement in the Field in the Territory, MedImmune shall have the right to join as a party to such claim, suit or proceeding and participate with its own counsel at its sole cost and expense; provided that Licensee shall retain control of the prosecution of such claim, suit or proceeding, including the response to any defense or defense of any counterclaim raised in connection therewith. If the Enforcing Party or its designee does not take commercially reasonable steps to prosecute an Infringement in the Field (x) within [***] days following the first notice provided above with respect to such Infringement or (y) provided such date occurs after the first such notice of such Infringement is provided, [***] Business Days before the time limit, if any, set out in appropriate laws and regulations for filing of such actions, whichever comes first, then (1) the Enforcing Party shall so notify the non-Enforcing Party and (2) subject to any rights of any Third Parties under any In-License Agreements (or other applicable Third Party agreements existing as of the Effective Date) and upon the Enforcing Party’s written consent (such consent not to be unreasonably withheld, conditioned or delayed), the non-Enforcing may prosecute such alleged or threatened infringement in the Field at its sole cost and expense, whereupon the non-Enforcing Party shall be deemed the Enforcing Party with respect to such Infringement.
Construction and Enforcement This Agreement shall be construed in accordance with the laws of the State of Florida, without and application of the principles of conflicts of laws. If it becomes necessary for any party to institute legal action to enforce the terms and conditions of this Agreement, and such legal action results in a final judgment in favor of such party ("Prevailing Party"), then the party or parties against whom said final judgment is obtained shall reimburse the Prevailing Party for all direct, indirect or incidental expenses incurred, including, but not limited to, all attorney's fees, court costs and other expenses incurred throughout all negotiations, trials or appeals undertaken in order to enforce the Prevailing Party's rights hereunder. Any suit, action or proceeding with respect to this Agreement shall be brought in the state or federal courts located in St. Lucie County in the State of Florida. The parties hereto hereby accept the exclusive jurisdiction and venue of those courts for the purpose of any such suit, action or proceeding. The parties hereto hereby irrevocably waive, to the fullest extent permitted by law, any objection that any of them may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any judgment entered by any court in respect thereof brought in St. Lucie County, Florida, and hereby further irrevocably waive any claim that any suit, action or proceeding brought in St. Lucie County, Florida, has been brought in an inconvenient forum.
Collaboration on Compliance and Enforcement A Competent Authority will notify the other Competent Authority when the first-mentioned Competent Authority has reason to believe that an error may have led to incorrect or incomplete information reporting or there is non-compliance by a Reporting Financial Institution with the applicable reporting requirements and due diligence procedures consistent with the Common Reporting Standard. The notified Competent Authority will take all appropriate measures available under its domestic law to address the errors or non-compliance described in the notice.
INFRINGEMENT AND PATENT ENFORCEMENT 11.01 PHS and Licensee agree to notify each other promptly of each infringement or possible infringement of the Licensed Patent Rights, as well as any facts which may affect the validity, scope, or enforceability of the Licensed Patent Rights of which either Party becomes aware.
11.02 Pursuant to this Agreement and the provisions of Chapter 29 of title 35, United States Code, Licensee may: a) bring suit in its own name, at its own expense, and on its own behalf for infringement of presumably valid claims in the Licensed Patent Rights; b) in any such suit, enjoin infringement and collect for its use, damages, profits, and awards of whatever nature recoverable for such infringement; and c) settle any claim or suit for infringement of the Licensed Patent Rights provided, however, that PHS and appropriate Government authorities shall have the first right to take such actions. If Licensee desires to initiate a suit for patent infringement, Licensee shall notify PHS in writing. If PHS does not notify Licensee of its intent to pursue legal action within forty five (45) days, Licensee will be free to initiate suit PHS shall have a continuing right to intervene in such suit. Licensee shall take no action to compel the Government either to initiate or to join in any such suit for patent infringement. Licensee may request the Government to initiate or join in any such suit if necessary to avoid dismissal of the suit. Should the Government be made a party to any such suit at the request of the Licensee, Licensee shall reimburse the Government for any costs, expenses, or fees which the Government incurs as a result of such motion or other action, including any and all costs incurred by the Government in opposing any such motion or other action. In all cases, Licensee agrees to keep PHS reasonably apprised of the status and progress of any litigation. Before Licensee commences an infringement action, Licensee shall notify PHS and give careful consideration to the views of PHS and to any potential effects of the litigation on the public health in deciding whether to bring suit.
11.03 In the event that a declaratory judgment action alleging invalidity or non-infringement of any of the Licensed Patent Rights shall be brought against Licensee or raised by way of counterclaim or affirmative defense in an infringement suit brought by Licensee under Paragraph 11.02, pursuant to this Agreement and the provisions of Chapter 29 of Xxxxx 00, Xxxxxx Xxxxxx Code or other statutes, Licensee may: a) defend the suit in its own name, at its own expense, and on its own behalf for presumably valid claims in the Licensed Patent Rights; b) in any such suit, ultimately to enjoin infringement and to collect for its use, damages, profits, and awards of whatever nature recoverable for such infringement; and c) settle any claim or suit for declaratory judgment involving the Licensed Patent Rights-provided, however, that PHS and appropriate Government authorities shall have the first right to take such actions and shall have a continuing right to intervene in such suit. If PHS does not notify Licensee of its intent to respond to the legal action within a reasonable period; which period shall not exceed ninety (90) days, Licensee will be free to do so. Licensee shall take no action to compel the Government either to initiate or to join in any such declaratory judgment action. Licensee may request the Government to initiate or to join any such suit if necessary to avoid dismissal of the suit. Should the Government be made a party to any such suit by motion or any other action of Licensee at the Licensee’s request, Licensee shall reimburse the Government for any costs, expenses, or fees which the Government incurs as a result of such motion or other action. If Licensee elects not to defend against such declaratory judgment action, PHS, at its option, may do so at its own expense. In all cases, Licensee agrees to keep PHS reasonably apprised of the status and progress of any litigation. Before Licensee commences an infringement action, Licensee shall notify PHS and give careful consideration to the views of PHS and to any potential effects of the litigation on the public health in deciding whether to bring suit.
11.04 In any action under Paragraphs 11.02 or 11.03, the expenses including costs, fees, attorney fees, and disbursements, shall be paid by Licensee. The value of any recovery made by Licensee through court judgment or settlement shall be treated as Net Sales and subject to earned royalties. Any and all costs incurred by the Licensee in defending the Licensed Patent Rights, as provided above, shall be deducted from Net Sales.
11.05 PHS shall cooperate fully with Licensee in connection with any action under Paragraphs 11.02 or 11.03. PHS agrees promptly to provide access to all necessary documents and to render reasonable assistance in response to a request by Licensee.
Monitoring and Enforcement 1. The Parties have jointly selected Xxxxx Xxxxxx as the Monitor for this Interim Agreement. The State and PPSD will contract with the Monitor to provide monitoring services pursuant to this Interim Agreement, subject to applicable purchasing laws. In the event that the Monitor resigns or the Parties agree to replace the Monitor, the Parties will select a replacement. If the Parties are unable to agree on a replacement within 30 days from the date the Parties receive a notice of resignation from the Monitor, or from the date the Parties agree to replace the Monitor, they shall each submit the names of up to three candidates and shall select the replacement from the names submitted.
2. The Monitor shall conduct the factual investigation and verification of data and documentation necessary to determine whether the Parties are in compliance with this Interim Agreement, on a monthly cycle continuing during the pendency of the Interim Agreement. The Monitor may hire staff and consultants, in consultation with and subject to reasonable objections by the Parties, including but not limited to the economic efficiency of the Monitor or other budgetary requirements, to assist in his/ her compliance investigations. The Monitor and any hired staff or consultants are neither agents nor business associates of the State, the City of Providence/PPSD, or the United States Department of Justice.
3. The Monitor shall provide a written report to the Parties regarding the State and PPSD’s compliance with the terms of this Interim Agreement every 90 days for the first year of this Interim Agreement and every 180 days thereafter. The first report shall be issued two months from the effective date of this Interim Agreement. At the request and with the consent of the Parties, the Monitor may hold an informational and review meeting after the filing of each written report. The Monitor shall provide the Parties a draft of his/her report at least 7 days before issuing the report. The Parties shall have the opportunity to review and comment on the proposed report. The Parties may agree to allow the Monitor an additional 5 days to finalize a report after he/she receives comments from the Parties.
4. In order to determine compliance with this Interim Agreement, the Monitor and any hired staff or consultants shall have full access to the people, places, documents and materials that are necessary to assess the State and City of Providence/PPSD’s compliance with this Interim Agreement, to the extent they are within the State or PPSD’s custody or control. This shall include, but not be limited to, access to the data and records maintained by the State and PPSD pursuant to Section XIV above. The Monitor and any hired staff or consultants may also interview individuals receiving services under this Interim Agreement with the consent of the individual or his/her authorized representative. The Monitor’s access to people, places, documents and materials shall continue until the Interim Agreement is terminated. Any individually identifying health or education information that the Monitor and any hired staff or consultants receive or maintain shall be kept strictly confidential.
5. The Monitor shall also have access to any and all:
a. Data collected by the State or PPSD;
b. Information necessary to determine that placements, pursuant to the terms of this Interim Agreement, meet the definition and standards set forth in Section V;
c. Information necessary to ensure that the Interim Agreement outcomes set forth in Section IV are met; and
d. Information necessary to evaluate the quality and quantity of Supported Employment Services provided to persons with I/DD under this Interim Agreement.
6. The Monitor and any hired staff or consultants shall not be liable for any claim, lawsuit, or demand arising out of their duties under this Interim Agreement. This paragraph does not apply to any proceeding before this Court for enforcement of payment of contracts or subcontracts for reviewing compliance with this Interim Agreement.
7. The Monitor and any hired staff or consultants shall not be subject to formal discovery, including, but not limited to, deposition(s), request(s) for documents, request(s) for admissions, interrogatories, or other disclosures. The Parties are not entitled to access the Monitor’s records or communications, or those of his/her staff and consultants, although the Monitor may provide copies of records or communications at the Monitor’s discretion.
8. Reimbursement and Payment Provisions
a. The allocation of the cost of the Monitor between the State and PPSD, including the cost of any consultants and staff to the Monitor, shall be determined by the State and PPSD, based upon utilization of the Monitor’s services. All reasonable expenses incurred by the Monitor in the course of the performance of his/her duties as set forth in this Interim Agreement shall be reimbursed by the State and PPSD. The United States shall bear its own expenses in this matter. If a dispute arises regarding reasonableness of fees or costs, the Monitor shall provide an accounting justifying the fees or costs.
b. Within 10 business days of his/her appointment, the Monitor shall submit to the Parties for approval a proposed budget for the first six months of operations. Then, annually thereafter.
c. The Parties shall raise with the Monitor any objections they may have to the draft of the proposed budget within ten days of its receipt. The Parties and the Monitor shall work to resolve any objections within ten days of an objection being raised. If the objection cannot be resolved, a Party may thereafter file the objection with the Court.
d. At any time, the Monitor may submit to the Parties for approval a proposed revision to the approved budget, along with any explanation of the reason for the proposed revision. Budget revisions will be effective upon approval by the Parties.
9. The Monitor, including any hired staff or consultants, shall not enter into any contract with the State or the City of Providence/PPSD while serving as the Monitor. If the Monitor resigns from his/her position as Monitor, he/she may not enter into any contract with the State or the City of Providence/PPSD on a matter related to this Interim Agreement during the pendency of this Interim Agreement without the written consent of the United States.
10. The Monitor, and any hired staff or consultants, shall refrain from any public oral or written statements to the media, including statements “on background,” regarding this Interim Agreement, its implementation, or the State or the City of Providence/PPSD’s compliance.
