Common use of Performance by Contractors Clause in Contracts

Performance by Contractors. If, and to the extent that, either Party has the right or obligation pursuant to, and in accordance with, the provisions of this Agreement to Develop, Manufacture or Commercialize any Licensed Product, such Party shall be entitled to utilize the services of Third Parties (including Third Party contract research organizations, Third Party contract manufacturing organizations (“CMOs”) and Third Party contract sales organizations (“CSOs”)) to perform the Development, Manufacturing or Commercialization activities that such Party has the right or obligation to perform under this Agreement with respect to such Licensed Product; provided that the contracting Party shall remain at all times fully liable for its responsibilities under this Agreement. Neither Party shall use Third Party contract resources to perform any activities that the contracting Party has the right or obligation to perform under this Agreement unless the contracting Party’s rights under the agreement with the Third Party contractor guarantee to the other Party the same rights under this Agreement as if the contracting Party had performed such activities itself, and any such Third Party contractor agreement includes a requirement that such Third Party contractor comply with the confidentiality provisions and restrictions on use of Confidential Information contained in Article X with respect to both Parties’ Confidential Information and a requirement that such Third Party contractor comply with any other provisions required under any AVEO In-License or Biogen Idec In-License, as the case may be. Notwithstanding anything in this Agreement to the contrary, the contracting Party under this Section 3.3(e) shall (A) obtain from any Third Party performing any activities of the contracting Party under this Agreement a license to any Know-how and Patent Rights generated by such Third Party arising directly out of the contracting activities to the extent necessary for the Development, Manufacture and Commercialization of Licensed Product or to the extent such Know-how is incorporated in any Licensed Product or such Patent Rights Cover any Licensed Product, (B) if such Third Party or any of its Affiliates is a Sublicensee of the contracting Party to whom the contracting Party has granted rights to Commercialize Licensed Product in the contracting Party’s Territory, obtain from such Third Party a license to any Know-how and Patent Rights generated by such Third Party arising directly out of the contracting activities to the extent reasonably useful for the Development, Manufacture and Commercialization of Licensed Product and (C) use Commercially Reasonable Efforts to obtain from such Third Party (other than a Third Party referred to in the foregoing clause (B)) a license to any Know-how and Patent Rights generated by such Third Party arising directly out of the contracting activities to the extent reasonably useful for the Development, Manufacture and Commercialization of Licensed Product. Each such license referred to in the foregoing clause (A), (B) or (C) of this Section 3.3(e) shall include rights to both the AVEO Territory and the Licensed Territory to the extent such Know-how and Patent Rights are necessary for the Development, Manufacture or Commercialization of Licensed Product in each such Territory or to the extent such Know-how is incorporated in any Licensed Product or such Patent Rights Cover any Licensed Product. Each such license referred to in the foregoing clause (A), clause (B) or clause (C) of this Section 3.3(e) shall include the right to sublicense to the other Party consistent with this Agreement. For purposes of clarification and not by way of limitation, it is understood and agreed that the term “necessary” as used in this Section 3.3(e) shall be deemed to include any Know-how or Patent Rights as to which rights in both the AVEO Territory and Licensed Territory would be necessary for the contracting Party to Develop, Manufacture or Commercialize, as the case may be, Licensed Product in both the AVEO Territory and the Licensed Territory under this Agreement, including, without limitation, under Sections 5.11, 5.12, 7.5, 13.1, 13.3 or 14.5(b).