Common use of Marketing Obligations Clause in Contracts

Marketing Obligations. (a) The Parties hereby agree to undertake and perform, in lieu of the marketing activities called for under the SMA prior to the fifth Anniversary Date, the marketing and other obligations and to pay the amounts set forth in Exhibit A, as may be further detailed in the Marketing Plans agreed upon by the Parties from time to time. Notwithstanding Section 2.1.2 of the SMA, (i) Itau's marketing obligations under the SMA as amended by this MOA shall not be in Itau's discretion except when expressly provided herein, (ii) any Marketing Plans shall be jointly created and agreed upon by the Parties before any such Marketing Plans are effective, and (iii) Itau shall be obligated to spend the amounts, and commit the resources, described in Exhibit A. Notwithstanding Section 6.1 of the SMA, all marketing materials shall be subject to the approval of the Parties except as expressly provided otherwise herein. Notwithstanding anything to the contrary in the SMA, the Marketing Committee's sole responsibility shall be to jointly review and agree upon those marketing obligations that call for the approval of all Parties. For the avoidance of doubt, notwithstanding this MOA, Itau shall continue to have the obligation to engage in a commercially reasonable level of marketing after the expiration of the five-year period after the Launch Date, as required by Section 2.1.2 of the SMA. (b) Notwithstanding the definition of "Material Marketing Breach" contained in the SMA, the term "Material Marketing Breach" shall mean a circumstance whereby Itau is obligated, or would have been obligated in the absence of the annual caps specified in Sections 5(a)(iii), 5(a)(iv) and 5(b)(ii) of Exhibit A (and for the purposes of the calculation excluding the 120% factor used in calculating the Distribution Payments and Promoters Payments), with respect to any two of the immediately preceding four Quarters, to make Marketing Payments to AOLB of more than 50% of the maximum potential Marketing Payments for each of such two Quarters, where the maximum potential Marketing Payments for any Quarter shall be the maximum Marketing Payment Itau would have been liable to make if it had failed to perform all of its obligations in such Quarter (excluding for the purposes of the calculation the 120% factor used in calculating the CD Distribution Payment and Promoters Payments).

Marketing Obligations. The parties hereto agree and understand that a significant and compelling part of the consideration PROVIDER expects to receive from this Agreement and the Acquisition Transaction lies in the ability to fully and effectively market its products to the vast network of patients, physicians, other parties and affiliates within CUSTOMER's networks ("overall network"). Accordingly, CUSTOMER agrees to actively endorse and support PROVIDER's efforts to market all of PROVIDER's products and services so that PROVIDER can achieve maximum penetration of its product and service offerings throughout CUSTOMER's overall network. Without limiting the generality of the foregoing, the parties' rights and obligations with respect to this marketing assistance shall include without limitation the following: (a) The Parties hereby agree to undertake and perform, in lieu CUSTOMER shall identify PROVIDER as its provider of the products and services set out on the Work Plan on all literature and marketing activities called for under the SMA prior materials in which such items are routinely mentioned or referenced; (b) CUSTOMER shall provide PROVIDER with full access to the fifth Anniversary Dateand liaison with CUSTOMER's product marketing department and all related divisions, as reasonably requested by PROVIDER, so as to completely integrate PROVIDER's service and product offerings into and with the marketing and other obligations sales activities of PROVIDER; (c) CUSTOMER shall communicate orally and in writing to pay its participating and prospective physicians the amounts set forth in Exhibit Aadvantages of utilizing the products and services of PROVIDER and CUSTOMER shall do this by integrating such announcements into CUSTOMER's communications with its overall network; (d) CUSTOMER shall, as may be further not later than thirty (30) days after the initiation of services hereunder, provide to PROVIDER a list of detailed in the Marketing Plans agreed upon data regarding CUSTOMER's "high prescribing and high lab ordering" physicians to target for penetration by the Parties PROVIDER; and CUSTOMER shall provide updates to such detailed date from time to time. Notwithstanding Section 2.1.2 time as reasonably requested by PROVIDER; (e) PROVIDER shall have the right to use CUSTOMER's trademarks, service marks, corporate name, trade names and logos (hereinafter collectively "marks") as PROVIDER shall deem necessary and fit in its marketing efforts, provided, however, that CUSTOMER shall have the right to participate in structuring the layout, context and content within which its marks are used prior to PROVIDER actually disseminating any materials containing the marks; (f) CUSTOMER shall sponsor a reasonable number of reference inquiries and visits by customers and potential customers of PROVIDER; (g) CUSTOMER shall provide all members of the SMAoverall network with a strong financial incentive to induce those members to utilize the services provided by PROVIDER such that any such members deciding to utilize PROVIDER's services (hereinafter "participating members") would receive inducement consideration, including, but not limited to, (i) Itauearlier reimbursement for those participating members with respect to services provided by the participating members to CUSTOMER's marketing obligations under the SMA as amended by this MOA shall not be in Itau's discretion except when expressly provided hereinoverall network, (ii) any Marketing Plans shall be jointly created and agreed upon by the Parties before any such Marketing Plans are effective, and additional volume distributions to those participating members to increase their share of business from CUSTOMER's overall network and/or (iii) Itau shall be obligated to spend the amounts, and commit the resources, described in Exhibit A. Notwithstanding Section 6.1 of the SMA, all marketing materials shall be subject a premium to the approval of the Parties except as expressly provided otherwise herein. Notwithstanding anything current pricing paid by CUSTOMER to the contrary in the SMA, the Marketing Committee's sole responsibility shall be to jointly review and agree upon those marketing obligations that call all such participating members for the approval of all Parties. For the avoidance of doubt, notwithstanding this MOA, Itau shall continue services provided by such participating members to have the obligation to engage in a commercially reasonable level of marketing after the expiration of the five-year period after the Launch Date, as required by Section 2.1.2 of the SMACUSTOMER or on CUSTOMER's behalf. (b) Notwithstanding the definition of "Material Marketing Breach" contained in the SMA, the term "Material Marketing Breach" shall mean a circumstance whereby Itau is obligated, or would have been obligated in the absence of the annual caps specified in Sections 5(a)(iii), 5(a)(iv) and 5(b)(ii) of Exhibit A (and for the purposes of the calculation excluding the 120% factor used in calculating the Distribution Payments and Promoters Payments), with respect to any two of the immediately preceding four Quarters, to make Marketing Payments to AOLB of more than 50% of the maximum potential Marketing Payments for each of such two Quarters, where the maximum potential Marketing Payments for any Quarter shall be the maximum Marketing Payment Itau would have been liable to make if it had failed to perform all of its obligations in such Quarter (excluding for the purposes of the calculation the 120% factor used in calculating the CD Distribution Payment and Promoters Payments).

Marketing Obligations. (a) The Parties hereby agree to undertake and perform, in lieu of the marketing activities called for under the SMA prior to the fifth Anniversary Date, the marketing and other obligations and to pay the amounts set forth in Exhibit A, as may be further detailed in the Marketing Plans agreed upon by the Parties from time to time. Notwithstanding Section 2.1.2 of the SMA, (i) Itau's Itaú’s marketing obligations under the SMA as amended by this MOA shall not be in Itau's Itaú’s discretion except when expressly provided herein, (ii) any Marketing Plans shall be jointly created and agreed upon by the Parties before any such Marketing Plans are effective, and (iii) Itau Itaú shall be obligated to spend the amounts, and commit the resources, described in Exhibit A. Notwithstanding Section Section 6.1 of the SMA, all marketing materials shall be subject to the approval of the Parties except as expressly provided otherwise herein. Notwithstanding anything to the contrary in the SMA, the Marketing Committee's ’s sole responsibility shall be to jointly review and agree upon those marketing obligations that call for the approval of all Parties. For the avoidance of doubt, notwithstanding this MOA, Itau Itaú shall continue to have the obligation to engage in a commercially reasonable level of marketing after the expiration of the five-year period after the Launch Date, as required by Section 2.1.2 of the SMA. (b) Notwithstanding the definition of "“Material Marketing Breach" ” contained in the SMA, the term "“Material Marketing Breach" ” shall mean a circumstance whereby Itau Itaú is obligated, or would have been obligated in the absence of the annual caps specified in Sections 5(a)(iii), 5(a)(iv) and 5(b)(ii) of Exhibit A (and for the purposes of the calculation excluding the 120% factor used in calculating the Distribution Payments and Promoters Payments), with respect to any two of the immediately preceding four Quarters, to make Marketing Payments to AOLB of more than 50% of the maximum potential Marketing Payments for each of such two Quarters, where the maximum potential Marketing Payments for any Quarter shall be the maximum Marketing Payment Itau Itaú would have been liable to make if it had failed to perform all of its obligations in such Quarter (excluding for the purposes of the calculation the 120% factor used in calculating the CD Distribution Payment and Promoters Payments).

Marketing Obligations. (a) The Parties hereby agree to undertake and perform, in lieu of the marketing activities called for under the SMA prior Subject to the fifth Anniversary Dateterms and conditions of this License Agreement, each party agrees to use commercially reasonable efforts and proceed earnestly and diligently to jointly advertise, market, promote, display, perform the marketing Combined Technology and other obligations Products and otherwise exploit every opportunity available to pay commercialize the amounts set forth in Exhibit AProducts. Each party shall be entitled to market, as may be further detailed advertise and promote the Products in the Marketing Plans agreed upon manner it deems most advantageous for the commercialization thereof, provided, however that all such efforts by the Parties from time to time. Notwithstanding Section 2.1.2 of the SMA, (i) Itau's marketing obligations under the SMA as amended by this MOA shall not be in Itau's discretion except when expressly provided herein, (ii) any Marketing Plans shall be jointly created and agreed upon by the Parties before any such Marketing Plans are effective, and (iii) Itau shall be obligated to spend the amounts, and commit the resources, described in Exhibit A. Notwithstanding Section 6.1 of the SMA, all marketing materials DNA shall be subject to VISTA’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. The Products and Combined Technology shall at all times be marketed and promoted under such VISTA Marks, as VISTA shall require, and, in addition, to the approval extent and in the manner mutually agreed between the parties, under the DNA Marks. Subject to the foregoing, DNA agrees to cooperate with VISTA in connection with, and participate in, any and all marketing programs, initiatives and plans undertaken by VISTA, including without limitation, meeting with potential Customers of the Parties except as expressly provided Products in an effort to promote the Products for sale to such potential Customers. DNA agrees not to promote, advertise, market, demonstrate or otherwise hereinoffer for sale the Products to any potential or prospective Customers without notifying VISTA reasonably in advance thereof, complying with its obligations under this Section 3.5 below and allowing VISTA to fully participate in such promotion, advertising, marketing, demonstration or offer for sale of the Products to such potential Customer. Notwithstanding anything The parties acknowledge that it is their intention to the contrary collaborate in the SMAformulation of a mutually acceptable annual marketing plan (“Marketing Plan”) which will, among other things, define specific objectives, markets and customers for which each party will have primary marketing and sales responsibility for the Products, consistent with the terms and conditions set forth in this Article 3. To the extent such Marketing Plan deviates from the Agreements, the Marketing Committee's sole responsibility Plan shall be to jointly review and agree upon those marketing obligations that call for the approval of all Parties. For the avoidance of doubtcontrol; provided, notwithstanding this MOAhowever, Itau shall continue to have the obligation to engage in a commercially reasonable level of marketing after the expiration of the five-year period after the Launch Date, as required by Section 2.1.2 of the SMA. (b) Notwithstanding the definition of "Material Marketing Breach" contained in the SMA, the term "Material Marketing Breach" shall mean a circumstance whereby Itau is obligated, or would have been obligated in the absence of any such Marketing Plan, the annual caps specified Agreements shall apply in Sections 5(a)(iii), 5(a)(iv) and 5(b)(ii) of Exhibit A (and for the purposes of the calculation excluding the 120% factor used in calculating the Distribution Payments and Promoters Payments), with respect to any two of the immediately preceding four Quarters, to make Marketing Payments to AOLB of more than 50% of the maximum potential Marketing Payments for each of such two Quarters, where the maximum potential Marketing Payments for any Quarter shall be the maximum Marketing Payment Itau would have been liable to make if it had failed to perform all of its obligations in such Quarter (excluding for the purposes of the calculation the 120% factor used in calculating the CD Distribution Payment and Promoters Payments)respects.

Marketing Obligations. (a) The Parties hereby agree to undertake and perform, in lieu of the marketing activities called for under the SMA prior Subject to the fifth Anniversary Dateterms and conditions of this License Agreement, each party agrees to use commercially reasonable efforts and proceed earnestly and diligently to jointly advertise, market, promote, display, perform the marketing Combined Technology and other obligations Products and otherwise exploit every opportunity available to pay commercialize the amounts set forth in Exhibit AProducts. Each party shall be entitled to market, as may be further detailed advertise and promote the Products in the Marketing Plans agreed upon manner it deems most advantageous for the commercialization thereof, provided, however that all such efforts by the Parties from time to time. Notwithstanding Section 2.1.2 of the SMA, (i) Itau's marketing obligations under the SMA as amended by this MOA shall not be in Itau's discretion except when expressly provided herein, (ii) any Marketing Plans shall be jointly created and agreed upon by the Parties before any such Marketing Plans are effective, and (iii) Itau shall be obligated to spend the amounts, and commit the resources, described in Exhibit A. Notwithstanding Section 6.1 of the SMA, all marketing materials DNA shall be subject to VISTA's prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. The Products and Combined Technology shall at all times be marketed and promoted under such VISTA Marks, as VISTA shall require, and, in addition, to the approval extent and in the manner mutually agreed between the parties, under the DNA Marks. Subject to the foregoing, DNA agrees to cooperate with VISTA in connection with, and participate in, any and all marketing programs, initiatives and plans undertaken by VISTA, including without limitation, meeting with potential Customers of the Parties except as expressly provided Products in an effort to promote the Products for sale to such potential Customers. DNA agrees not to promote, advertise, market, demonstrate or otherwise hereinoffer for sale the Products to any potential or prospective Customers without notifying VISTA reasonably in advance thereof, complying with its obligations under this Section 3.5 below and allowing VISTA to fully participate in such promotion, advertising, marketing, demonstration or offer for sale of the Products to such potential Customer. Notwithstanding anything The parties acknowledge that it is their intention to the contrary collaborate in the SMAformulation of a mutually acceptable annual marketing plan ("Marketing Plan") which will, among other things, define specific objectives, markets and customers for which each party will have primary marketing and sales responsibility for the Products, consistent with the terms and conditions set forth in this Article 3. To the extent such Marketing Plan deviates from the Agreements, the Marketing Committee's sole responsibility Plan shall be to jointly review and agree upon those marketing obligations that call for the approval of all Parties. For the avoidance of doubtcontrol; provided, notwithstanding this MOAhowever, Itau shall continue to have the obligation to engage in a commercially reasonable level of marketing after the expiration of the five-year period after the Launch Date, as required by Section 2.1.2 of the SMA. (b) Notwithstanding the definition of "Material Marketing Breach" contained in the SMA, the term "Material Marketing Breach" shall mean a circumstance whereby Itau is obligated, or would have been obligated in the absence of any such Marketing Plan, the annual caps specified Agreements shall apply in Sections 5(a)(iii), 5(a)(iv) and 5(b)(ii) of Exhibit A (and for the purposes of the calculation excluding the 120% factor used in calculating the Distribution Payments and Promoters Payments), with respect to any two of the immediately preceding four Quarters, to make Marketing Payments to AOLB of more than 50% of the maximum potential Marketing Payments for each of such two Quarters, where the maximum potential Marketing Payments for any Quarter shall be the maximum Marketing Payment Itau would have been liable to make if it had failed to perform all of its obligations in such Quarter (excluding for the purposes of the calculation the 120% factor used in calculating the CD Distribution Payment and Promoters Payments)respects.