Common use of Notice Mechanism; Excluded Products Clause in Contracts

Notice Mechanism; Excluded Products. (a) In order to exercise a Product Development Right with respect to a product, Alliance must receive a product-specific Product Development Rights License from Inhale. Alliance shall give written notice to Inhale of such exercise with a description of such product and other information in Alliance’s possession and control that is reasonably sufficient for Inhale to decide whether to grant Product Development Rights to Alliance under this Section 3.2(a). Alliance must give such notice before the initiation of Phase I in order to receive a Product Development Rights License. Within forty-five days after Inhale’s receipt of such notice and information, Inhale shall either confirm its grant of a Product Development Rights License or notify Alliance that it is not granting a Product Development Rights License with respect to the proposed product. Inhale may reject the proposed product if Inhale reasonably and in good faith makes one of the following determinations: (i) Inhale has already begun development of the product prior to the date of receipt of the Alliance notice, either through an internal development program or with a partner; (ii) granting a Product Development Rights License with respect to the proposed product would constitute a breach by Inhale of a then existing agreement to which Inhale is bound; or (iii) Inhale began negotiating prior to the date of receipt of the Alliance notice an agreement with a prospective customer and believes that the principal terms of such an agreement will be agreed upon within ninety days of the Alliance notice and granting a Product Development Rights License to Alliance would constitute a breach of such agreement if consummated. If Inhale rejects a Product Development Rights License for a specific Alliance product based on a determination covered by clause (iii), Inhale shall diligently pursue the conclusion of such negotiations with the prospective customer and Inhale shall notify Alliance promptly if Inhale concludes that it is not going to execute a definitive agreement for such product with such prospective customer. CONFIDENTIAL TREATMENT REQUESTED (b) Inhale will grant Product Development Rights Licenses to Alliance under this Agreement on a [CONFIDENTIAL TREATMENT REQUESTED] basis. Products as to which a Product Development Rights License has been granted by Inhale shall constitute Designated Products. Except in the case of Designated Products for which Inhale has granted a specific Product Development Rights License under this Agreement or products or compounds involving Liquid Dose Instillation (as defined in the Supplemental Agreement) or, as to the Bioavailability Purchased Assets (as defined in the Supplemental Agreement) and any Assignable Improvements regarding Bioavailability Technology (as defined in the Supplemental Agreement), for applications outside the Inhale Field, Alliance shall not use or sell knowingly products or compounds that are made using or that incorporate PulmoSphere® Technology, MediSpheres™ Technology, or Bioavailability Technology.

Notice Mechanism; Excluded Products. (a) In order to exercise a Product Development Call Right with respect to a product, Alliance must receive a product-specific Product Development Rights License from Inhale. Alliance shall give written notice to Inhale of such exercise with a description of such product and other information in Alliance’s 's possession and control that is reasonably sufficient for Inhale to decide whether to grant Product Development Rights to Alliance accept or reject such product under this Section 3.2(a). Alliance must give such notice before the initiation of Phase I in order to receive a Product Development Rights License. Within forty-five (45) days after Inhale’s 's receipt of such notice and information, Inhale shall either confirm its grant acceptance of a Product Development Rights License the product designation or notify Alliance that it is not granting a Product Development Rights License with respect to rejecting the proposed product. Inhale may reject the proposed product if Inhale reasonably and in good faith makes one of the following determinations: (i) Inhale has already begun development of the product prior to the date of receipt of the Alliance notice, either through an internal development program or with a partner; (ii) granting a Product Development Rights License with respect to development of the proposed product for Alliance would constitute a breach by Inhale of a then existing agreement to which Inhale is bound; or (iii) Inhale began negotiating prior to the date of receipt of the Alliance notice an agreement with a prospective customer and believes that the principal terms of such an agreement will be agreed upon within ninety (90) days following receipt of the Alliance notice and granting development of a Product Development Rights License to Alliance product would constitute a breach of such agreement if consummated; (iv) development of the product would pose a medical or safety risk to Inhale employees or prospective patients; (v) Inhale lacks the expertise and/or resources to carry out such work; (vi) development of the product would result in significant delays or disruptions to Inhale's other research or contractual activities; or (vii) development of the product by Inhale would infringe an issued patent or a claim of a published patent application. If Inhale accepts a Call Right notwithstanding its reasonable belief that subsection (vi) would apply to its development of such product, Inhale may elect to postpone for up to two (2) calendar quarters from the date of the Collaboration Agreement to be entered into pursuant to Section 3.2(b) its obligations to develop such product as a Designated Product pursuant to this Article 3. In making its determination with respect to clause (vi), Inhale shall treat the Alliance exercise in the same manner as Inhale would treat a request by a prospective customer at that time to develop a different product that would require the same type and amount of resources as would be required to develop the proposed Call Right product. If Inhale rejects an Alliance exercise of a Product Development Rights License for a specific Alliance product Call Right based on a determination covered by clause (iii), Inhale shall diligently pursue the conclusion of such negotiations with the prospective customer and Inhale shall notify Alliance promptly if Inhale concludes that it is not going to execute a definitive agreement for such product with such prospective customer. CONFIDENTIAL TREATMENT REQUESTED (b) Inhale will grant Product Development Rights Licenses to Alliance under this Agreement on a [CONFIDENTIAL TREATMENT REQUESTED] basis. Products as to which a Product Development Rights License has been granted by Inhale shall constitute Designated Products. Except in the case of Designated Products for which Inhale has granted a specific Product Development Rights License under this Agreement or products or compounds involving Liquid Dose Instillation (as defined in the Supplemental Agreement) or, as to the Bioavailability Purchased Assets (as defined in the Supplemental Agreement) and any Assignable Improvements regarding Bioavailability Technology (as defined in the Supplemental Agreement), for applications outside the Inhale Field, Alliance shall not use or sell knowingly products or compounds that are made using or that incorporate PulmoSphere® Technology, MediSpheres™ Technology, or Bioavailability Technology.

Notice Mechanism; Excluded Products. (a) In order to exercise a Product Development Right with respect to a product, Alliance must receive a product-specific Product Development Rights License from Inhale. Alliance shall give written notice to Inhale of such exercise with a description of such product and other information in Alliance’s 's possession and control that is reasonably sufficient for Inhale to decide whether to grant Product Development Rights to Alliance under this Section 3.2(a). Alliance must give such notice before the initiation of Phase I in order to receive a Product Development Rights License. Within forty-five days after Inhale’s 's receipt of such notice and information, Inhale shall either confirm its grant of a Product Development Rights License or notify Alliance that it is not granting a Product Development Rights License with respect to the proposed product. Inhale may reject the proposed product if Inhale reasonably and in good faith makes one of the following determinations: (i) Inhale has already begun development of the product prior to the date of receipt of the Alliance notice, either through an internal development program or with a partner; (ii) granting a Product Development Rights License with respect to the proposed product would constitute a breach by Inhale of a then existing agreement to which Inhale is bound; or (iii) Inhale began negotiating prior to the date of receipt of the Alliance notice an agreement with a prospective customer and believes that the principal terms of such an agreement will be agreed upon within ninety days of the Alliance notice and granting a Product Development Rights License to Alliance would constitute a breach of such agreement if consummated. If Inhale rejects a Product Development Rights License for a specific Alliance product based on a determination covered by clause (iii), Inhale shall diligently pursue the conclusion of such negotiations with the prospective customer and Inhale shall notify Alliance promptly if Inhale concludes that it is not going to execute a definitive agreement for such product with such prospective customer. CONFIDENTIAL TREATMENT REQUESTED (b) Inhale will grant Product Development Rights Licenses to Alliance under this Agreement on a [CONFIDENTIAL TREATMENT REQUESTED] basis. Products as to which a Product Development Rights License has been granted by Inhale shall constitute Designated Products. Except in the case of Designated Products for which Inhale has granted a specific Product Development Rights License under this Agreement or products or compounds involving Liquid Dose Instillation (as defined in the Supplemental Agreement) or, as to the Bioavailability Purchased Assets (as defined in the Supplemental Agreement) and any Assignable Improvements regarding Bioavailability Technology (as defined in the Supplemental Agreement), for applications outside the Inhale Field, Alliance shall not use or sell knowingly products or compounds that are made using or that incorporate PulmoSphere® Technology, MediSpheres™ Technology, or Bioavailability Technology.