Common use of Merck In-Licenses Clause in Contracts

Merck In-Licenses. In the event that, during the Collaboration Term for a given Program, Merck identifies any Patents or Know-How of a Third Party to which Merck (and its Affiliates) does not have rights and that may be [***] for the performance of Collaboration Activities under this Agreement for such Program, including the Research, Development, Manufacture or Commercialization of any Collaboration Product as a part of such Program pursuant to this Agreement, Merck may independently negotiate and enter into an agreement to obtain a license or other rights to such Patents or Know-How (each such agreement, a “Merck In-License”) provided that (1) Merck will [***] and (2) Merck will use [***]. In addition, if Merck (or its Affiliates) has other Patents or Know-How that may be [***] for the performance of Collaboration Activities for a given Program under this Agreement, including the Research, Development, Manufacture or Commercialization of any Collaboration Product pursuant to this Agreement and that Merck desires to bring into the Collaboration for such Program, but such Patents or Know-How are licensed to Merck (or its Affiliate) from a Third Party pursuant to an agreement between Merck (or its Affiliate) and such Third Party (even if the agreement with the Third Party was entered into prior to the Effective Date), then, such agreement shall also be considered a “Merck In-License”. Solely to the extent Merck determines that the rights in-licensed under a Merck In-License should be made available for use by the Parties for the performance of Collaboration Activities for a given Program under this Agreement, including for the Research, Development, Manufacture or Commercialization of any Collaboration Product, then Merck will provide Moderna written notice thereof, which written notice shall include the terms of such Merck In-License, subject to applicable confidentiality obligations and reasonable redaction of provisions that do not relate to the potential use of Patents and Know-How in-licensed under such Merck In-License for the performance by the Parties of such Collaboration Activities with respect to a Program, including the Research, Development, Manufacture or Commercialization of any Collaboration Product as a part of such Program, and otherwise provide Moderna with [***] to assess whether or not any Patents or Know-How in-licensed under such Merck In-License should be made available for use as set forth herein. Following Moderna’s receipt of such notice from Merck disclosing a given Merck In-License, the Parties shall discuss in good faith whether any Patents or Know-How in-licensed under such Merck In-License should be made available for use by the Parties for the performance of Collaboration Activities with respect to a Program under this Agreement, including for the Research, Development, Manufacture or Commercialization of any Collaboration Product as a Party of such Program and, if the Parties mutually agree in writing, then, in each case, pursuant to the terms of this Agreement and to the extent permitted under the applicable Merck In-License, then such Patents and Know-How, as applicable, shall be deemed to be Merck Technology and such Merck In-License shall be deemed an “Included Merck In-License”.

Merck In-Licenses. In the event that, during the Collaboration Term for a given Program, Merck identifies any Patents or Know-How of a Third Party to which Merck (and its Affiliates) does not have rights and that may be [***] for the performance of Collaboration Activities under this Agreement for such Program, including the Research, Development, Manufacture or Commercialization of any Collaboration Product as a part of such Program pursuant to this Agreement, Merck may independently negotiate and enter into an agreement to obtain a license or other rights to such Patents or Know-How (each such agreement, a “Merck In-License”) provided that (1) Merck will [***] and (2) Merck will use [***]. In addition, if Merck (or its Affiliates) has other Patents or Know-How that may be [***] for the performance of Collaboration Activities for a given Program under this Agreement, including the Research, Development, Manufacture or Commercialization of any Collaboration Product pursuant to this Agreement and that Merck desires to bring into the Collaboration for such Program, but such Patents or Know-How are licensed to Merck (or its Affiliate) from a Third Party pursuant to an agreement between Merck (or its Affiliate) and such Third Party (even if the agreement with the Third Party was entered into prior to the Effective Date), then, such agreement shall also be considered a “Merck In-License”. Solely to the extent Merck determines that the rights in-licensed under a Merck In-License should be made available for use by the Parties for the performance of Collaboration Activities for a given Program under this Agreement, including for the Research, Development, Manufacture or Commercialization of any Collaboration Product, then Merck will provide Moderna written notice thereof, which written notice shall include the terms of such Merck In-License, subject to applicable confidentiality obligations and reasonable redaction of provisions that do not relate to the potential use of Patents and Know-How in-licensed under such Merck In-License for the performance by the Parties of such Collaboration Activities with respect to a Program, including the Research, Development, Manufacture or Commercialization of any Collaboration Product as a part of such Program, and otherwise provide Moderna with [***] to assess whether or not any Patents or Know-How in-licensed under such Merck In-License should be made available for use as set forth herein. Following Moderna’s receipt of such notice from Merck disclosing a given Merck In-License, the Parties shall discuss in good faith whether any Patents or Know-How in-licensed under such Merck In-License should be made available for use by the Parties for the performance of Collaboration Activities with respect to a Program under this Agreement, including for the Research, Development, Manufacture or Commercialization of any Collaboration Product as a Party of such Program and, if the Parties mutually agree in writing, then, in each case, pursuant to the terms of this Agreement and to the extent permitted under the applicable Merck In-License, then such Patents and Know-How, as applicable, shall be deemed to be Merck Technology and such Merck In-In- License shall be deemed an “Included Merck In-License”.