NATURE AND SCOPE 4.1 This Agreement is an agreement under the terms and conditions of which the Supplier/Service Provider will arrange for the supply/provision to Transnet of the Goods/Services which meet the requirements and specifications of Transnet, the delivery of which is controlled by means of Purchase Orders to be issued by Transnet and executed by the Supplier/Service Provider in accordance with this Agreement.
4.2 Such Purchase Orders and deliveries to Transnet shall be agreed between the Parties from time to time, subject to the terms of the Schedule of Requirements/Work Order.
4.3 Each properly executed Purchase Order forms an inseparable part of this Agreement as if it were fully incorporated into the body of this Agreement.
4.4 During the period of this Agreement, both Parties can make written suggestions for amendments to the Schedule of Requirements/Work Orders in accordance with procedures set out in clause 35 [Amendment and Change Control]. A Party will advise the other Party within 14 [fourteen] Business Days, or such other period as mutually agreed, whether the amendment is acceptable.
4.5 Insofar as any term, provision or condition in the Schedule of Requirements/Work Order conflicts with a like term, provision or condition in this Agreement and/or a Purchase Order, the term or provision or condition in this Master Agreement shall prevail, unless such term or provision or condition in this Master Agreement has been specifically revoked or amended by mutual written agreement between the Parties.
4.6 Time will be of the essence and the Supplier/Service Provider will perform its obligations under this Agreement in accordance with the timeframe(s) [if any] set out in the relevant schedule, save that the Supplier/Service Provider will not be liable under this clause if it is unable to meet such obligation within the time required as a direct result of any act or omission by Transnet and it has used its best endeavours to advise Transnet of such act or omission. In the event of such delay, any time deadlines detailed in the relevant schedule shall be extended by a period equal to the period of that delay.
Nature and Scope of Guaranty 1.1 The Guarantor, jointly and severally (if executed by more than one person), irrevocably, absolutely and unconditionally guarantees to the Lender, its successors and assigns, the payment of the Debt and the payment and performance of all the Obligations, subject to the recourse limitations of Paragraphs 8 and 9 of the Note. This Guaranty is a primary and absolute obligation of the Guarantor.
1.2 Guarantor will make all payments hereunder in lawful money of the United States of America in immediately available funds without set-off, counterclaim or defense.
1.3 Guarantor's liability hereunder shall remain unchanged irrespective of any invalidity, illegality or unenforceability of any other guaranty, pledge, assignment or other security for the Debt or Obligations, and without regard to any claim, counterclaim, set-off or defense which Borrower, any other guarantor, surety or obligor might be privileged to assert with respect to the validity, legality or enforceability of the Debt or Obligations and irrespective of any present or future law or order of any government or any agency thereof purporting to reduce, amend or otherwise affect any obligation of the Borrower or of any other guarantor, surety or other obligor or to vary the terms of payment of the Debt or the terms of any of the Obligations. If for any reason whatsoever (including but not limited to ultra xxxxx, lack of authority, illegality, force majeure, act of God or impossibility) the Debt or the Obligations cannot be enforced against Borrower, such unenforceability shall in no manner affect the liability of Guarantor hereunder and Guarantor shall be liable hereunder notwithstanding that Borrower may not be liable for such Debt or such Obligations.
1.4 The obligations of the Guarantor hereunder are independent of the obligations of the Borrower relative to the Debt and Obligations, and a separate action or actions for payment, damages or performance may be brought and prosecuted against Guarantor, or any of them should there be more than one, regardless of whether an action is or could be brought against Borrower, any security for the Debt and/or any of the Obligations or any other party obligated to pay the Debt and/or pay or perform any of the Obligations. Guarantor will not be privileged to assert, and hereby waives the right to assert, in any action(s) by Lender against Guarantor any defense, set-off or counterclaim which Borrower or any other obligor might then be privileged to assert. Guarantor acknowledges and agrees that, as between Guarantor and the Lender, the Debt and Obligations guaranteed hereunder may be declared to be due and payable for purposes of this Guaranty notwithstanding any stay, injunction or other prohibition arising from the filing of a voluntary or an involuntary bankruptcy petition by or against Borrower, or otherwise, which may prevent or delay any such declaration as against the Borrower. In addition, in the event that Borrower does not or is unable so to pay the Debt or perform the Obligations for any reason, including, without limitation, liquidation, dissolution, receivership, conservatorship, insolvency, bankruptcy, assignment for the benefit of creditors, sale of all or substantially all assets, reorganization, arrangement, composition, or readjustment of, or other similar proceedings affecting the status, composition, identity, existence, assets or obligations of Borrower, or the disaffirmance or termination of any of the Debt or Obligations in or as a result of any such proceeding, Guarantor shall pay the Debt and perform the Obligations and no such occurrence shall in any way affect Guarantor's obligations hereunder.
1.5 If any claim is ever made upon Lender for repayment or recovery of any amount received by Lender in payment or on account of the Debt and/or any of the Obligations by virtue of such amount having been a preference under applicable bankruptcy laws or for any other reason and Lender repays all or part of said amount pursuant to any judgment, decree or order of any court or administrative body having jurisdiction over Lender or any of its property or any settlement or compromise of any such claim effected by Lender with any such claimant (including but not limited to the Borrower or any other guarantor), then any such judgment, decree, order, settlement or compromise shall be binding upon the Guarantor, and, notwithstanding any prior satisfaction or cancellation of this Guaranty, of the Note or any other instrument evidencing the Debt and any of the Obligations, this Guaranty shall continue to be effective or shall be automatically reinstated, as the case may be, and the Guarantor shall be and remain liable to Lender hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by Lender. Such amount shall be paid by Guarantor to Lender on demand.
1.6 This Guaranty shall automatically remain in effect for a period of one hundred (100) days after the date on which all of the Debt and Obligations are last fully paid and performed, and, if no bankruptcy petition is filed against Borrower within ninety (90) days after such date, then, in that event this Guaranty shall be deemed to have been canceled as of the aforesaid date on which all of the Debt and Obligations were last fully paid and performed, subject to being automatically reinstated for the reasons stated in Subsection 1.5 above. If, however, a bankruptcy petition is filed by or against the Borrower during said ninety (90) day period, this Guaranty shall continue in effect unless and until a final, non-appealable decision by a court of competent jurisdiction has been rendered or an agreement has been entered or reached pursuant to which Lender shall be entitled to retain all monies paid by Borrower to Lender. If Lender is obligated to return to the Borrower, to the estate of the Borrower or to a bankruptcy trustee for the Borrower any monies previously paid by the Borrower, then this Guaranty shall continue in effect and Guarantor, as provided in Subsection 1.5 above, shall continue to be liable to Lender for repayment of such monies.
Capital Structure and Business If all or part of a Credit Party's Stock is pledged to Agent, that Credit Party shall not issue additional Stock. No Credit Party shall amend its charter or bylaws in a manner that would adversely affect Agent or Lenders or such Credit Party's duty or ability to repay the Obligations. No Credit Party shall engage in any business other than the businesses currently engaged in by it or businesses reasonably related thereto.
LICENSURE AND CERTIFICATION 25.1 The Employer will continue its current practices related to licensure and certification or comply with 25.2, 25.3 and 25.4, below, whichever provides the greater benefit to the employee.
PURPOSE AND SCOPE OF AGREEMENT 1.01 The purpose of this Agreement is to maintain harmonious and mutually beneficial relationships between the Employer, the Union and the employees and to set forth herein certain terms and conditions of employment upon which agreement has been reached through collective bargaining.
1.02 The parties to this Agreement share a desire to improve the quality of the Canadian Food Inspection Agency and to promote the well-being and increased efficiency of its employees to the end that the people of Canada will be well and efficiently served. Accordingly, the parties are determined to establish, within the framework provided by law, an effective working relationship at all levels of the Agency in which members of the bargaining units are employed.
Nature and Purpose of Processing The Parties will Process Shared Personal Data only as necessary to perform under and pursuant to the Applicable Agreements, and subject to this Data Processing Addendum, including as further instructed by Data Subjects.
Disclosure and Use 20.2.1 Each Receiving Party agrees that, from and after the Effective Date:
(a) all such Proprietary Information communicated or discovered, whether before, on or after the Effective Date, in connection with this Agreement shall be held in confidence to the same extent as such Receiving Party holds its own confidential information; provided, that such Receiving Party shall not use less than a reasonable standard of care in maintaining the confidentiality of such information;
(b) it will not, and it will not permit any of its employees, contractors, consultants, agents or affiliates to disclose such Proprietary Information to any other third person;
(c) it will disclose Proprietary Information only to those of its employees, contractors, consultants, agents and affiliates who have a need for it in connection with the use or provision of services required to fulfill this Agreement;
(d) it will, and will cause each of its employees, contractors, consultants, agents and affiliates to use such Proprietary Information only to effectuate the terms and conditions of this Agreement and for no other purpose;
(e) it will cause each of its affiliates to execute individual confidentiality agreements containing the same restrictions as this Article XX; and
(f) it will, and will cause each of its employees, contractors, consultants, agents and affiliates, to use such Proprietary Information to create only that Derivative Information necessary for such Receiving Party's compliance with Applicable Law or its performance under the terms of this Agreement.
20.2.2 Any Receiving Party so disclosing Proprietary Information to its employees, contractors, consultants, agents or affiliates shall be responsible for any breach of this Agreement by any of its employees, contractors, consultants, agents or affiliates and such Receiving Party agrees to use its reasonable efforts to restrain its employees, contractors, consultants, agents or affiliates from any prohibited or unauthorized disclosure or use of the Proprietary Information and to assist the Disclosing Party in its efforts to protect such information from disclosure. Each Receiving Party making such disclosure shall notify the Disclosing Party as soon as possible if it has knowledge of a breach of this Agreement in any material respect.
20.2.3 Proprietary Information shall not be reproduced by any Receiving Party in any form except to the extent (i) necessary to comply with the provisions of Section 20.3 and (ii) reasonably necessary to perform its obligations under this Agreement. All such reproductions shall bear the same copyright and proprietary rights notices as are contained in or on the original.
Manufacture and Supply As between the Parties, Otsuka shall be responsible for, shall bear all costs associated with, and shall have all decision-making authority over, all Manufacturing Activities (subject to discussion of CMC matters with Acucela through the JDC or applicable Operating Team as discussed below); provided, that Otsuka shall supply Licensed Product to Acucela or its permitted subcontractors for use in clinical trials conducted in accordance with each Development Plan and, if applicable, Commercialization Plan (i.e., Phase 3b Clinical Trials or Post-Approval Studies, if any), free of charge and in such quantities as are agreed by the JDC or the JCC (as applicable) or are otherwise required to seek or obtain Regulatory Approval. In addition, if and after Acucela exercises an Opt-In Right under Section 3.1, Otsuka shall supply promotional samples of Licensed Product to Acucela for use in its performance of Co-Promotion, in such quantities and on such terms as are determined by the JCC. The cost of promotional samples of Licensed Product, which shall be included in Commercialization Costs, shall be established by the JCC based on Otsuka’s per-unit cost to manufacture such promotional samples (but, for the avoidance of doubt, Otsuka shall have no obligation to disclose any information relating to its manufacturing costs), but in no event shall such promotional sample cost exceed * per promotional sample unless mutually agreed otherwise by the Parties. Acucela’s and its permitted subcontractors’ obligations to conduct Development activities, and upon Acucela’s exercise of its Opt-in Right pursuant to Section 3.1, to conduct Development and Commercialization activities, shall be expressly conditioned upon Otsuka fulfilling its Licensed Product supply obligations as set forth in the Development Plan or the Commercialization Plan, as applicable. To the extent that Otsuka reasonably believes is necessary for performance of Development or Commercialization, Otsuka agrees to keep Acucela reasonably informed from time to time, through the JDC, JCC or applicable Operating Team, regarding the general status of Manufacturing Activities related to the Licensed Product (including Other Indication Product(s), as applicable) and from time to time shall update Acucela on any foreseeable delays and/or other material issues relating to Manufacturing the Licensed Product (including Other Indication Product(s), as applicable). Through the JDC or applicable Operating Team, Otsuka and Acucela shall confer and discuss CMC matters, and Otsuka agrees to consider suggestions of Acucela regarding CMC matters.
Entire and Sole Agreement This Agreement constitutes the entire agreement between the parties and supersedes all other agreements, representations, warranties, statements, promises and undertakings, whether oral or written, with respect to the subject matter of this Agreement. This Agreement may be modified or amended only by a written agreement signed by the parties against whom the amendment is sought to be enforced.
BUSINESS STRUCTURE AND ASSIGNMENTS 5.17.1 Contractor shall not assign this Agreement at law or otherwise or dispose of all or substantially all of its assets without the Director’s prior written consent. Nothing in this clause, however, prevents the assignment of accounts receivable or the creation of a security interest under Section 9.406 of the Texas Business & Commerce Code. In the case of such an assignment, Contractor shall immediately furnish the Director and CPO with proof of the assignment and the name, telephone number, and address of the Assignee and a clear identification of the fees to be paid to the Assignee.
5.17.2 Contractor shall not delegate any portion of its performance under this Agreement without the Director’s prior written consent.
