Common use of Third Party Contractors Clause in Contracts

Third Party Contractors. Except with respect to any AstraZeneca Product Improvement, which shall be governed by Section 5.1.6(a)(i), Licensee shall use commercially reasonable efforts to obtain from each Third Party contractor that Licensee or its Affiliate proposes to engage to conduct activities under or in connection with this Agreement on behalf of Licensee or its Affiliates an assignment, an exclusive license, or a non-exclusive license (in order of preference), with the right to sublicense through multiple tiers, to Licensee of (i) any Information that is directed to a Licensed Compound or Licensed Product and was not previously in the public domain or (ii) any other Invention directed to a Licensed Compound or Licensed Product, that, in each case ((i) and (ii)), such Third Party contractor conceives, discovers, develops or otherwise makes in connection with activities conducted relating to this Agreement. The Parties acknowledge that it may not be possible to obtain such assignment or license from any such Third Party contractor on terms acceptable to Licensee or at all (e.g., technology of broad applicability to the operation of such Third Party contractor’s business, or improvements to such Third Party contractor’s own proprietary technology used in the performance of services on behalf of Licensee or its Affiliate), and accordingly, the Parties agree that the inability of Licensee or its Affiliate, despite the use of commercially reasonable *** CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. efforts, to obtain such assignment or license from a Third Party contractor on terms acceptable to Licensee or at all shall not constitute a breach of Licensee’s obligations under this Agreement. Licensee shall require its and its Affiliates’ Sublicensees to be subject to the obligations set forth in this Section 5.1.6(b) to the same extent as Licensee.

Third Party Contractors. Except with respect to any AstraZeneca Product Improvement, which shall be governed by Section 5.1.6(a)(i), Licensee shall use commercially reasonable efforts to obtain from each Third Party contractor that Licensee or its Affiliate proposes to engage to conduct activities under or in connection with this Agreement on behalf of Licensee or its Affiliates an assignment, an exclusive license, or a non-exclusive license (in order of preference), with the right to sublicense through multiple tiers, to Licensee of (i) any Information that is directed to a Licensed Compound or Licensed Product and was not previously in the public domain or (ii) any other Invention directed to a Licensed Compound or Licensed Product, that, in each case ((i) and (ii)), such Third Party contractor conceives, discovers, develops or otherwise makes in connection with activities conducted relating to this Agreement. The Parties acknowledge that it may not be possible to obtain such assignment or license from any such Third Party contractor on terms acceptable to Licensee or at all (e.g., technology of broad applicability to the operation of such Third Party contractor’s business, or improvements to such Third Party contractor’s own proprietary technology used in the performance of services on behalf of Licensee or its Affiliate), and accordingly, the Parties agree that the inability of Licensee or its Affiliate, despite the use of commercially reasonable *** CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. efforts, to obtain such assignment or license from a Third Party contractor on terms acceptable to Licensee or at all shall not constitute a breach of Licensee’s obligations under this Agreement. Licensee shall require its and its Affiliates’ Sublicensees to be subject to the obligations restrictions set forth in this Section 5.1.6(b2.4(b) do not apply to contractors who do not need to exercise any of the license rights set forth in Section 2.1 (Development and Documentation License) or Section 2.9 (Source Code) and who do not require access to PalmSource Confidential Information (such as contractors working on separate hardware components). Licensee may request in writing permission to sublicense certain of its rights under Section 2.1 (Development and Documentation License) to its third party contractors to permit such contractors to assist Licensee in developing, manufacturing, testing and supporting Licensee Products on behalf of Licensee. Such request shall include information reasonably required by PalmSource to evaluate the same proposed contractor arrangement, including the identity and location of the contractor and a description in reasonable detail of the activities to be performed by the contractor. PalmSource will use reasonable efforts to evaluate and respond to any such request within ten (10) business days. PalmSource will not unreasonably withhold approval of such contractors, provided that no sublicensing shall be permitted unless and until expressly approved in writing by PalmSource. In addition, no contractors shall be entitled to sublicense any rights to access any PS Source Code or PS Source Code Documentation under Section 2.9 (Source Code) unless the respective contractor is expressly authorized in writing to do so by PalmSource. Contractors used by Licensee as of the Original Execution Date of this Agreement are hereby approved by PalmSource for purposes of continuing such activities on behalf of Licensee provided that such contractors shall not be entitled to sublicense any rights to access any PS Source Code or PS Source Code Documentation unless separately authorized in writing to do so by PalmSource. However, Licensee will have a period of up to thirty (30) days after the Original Execution Date to transition existing contractors who may have access to portions of the PS Source Code or PS Source Code Documentation. As of the Amendment Execution Date, all approved third party contractors are set forth in Exhibit N (Approved Third Party Contractors) attached hereto. Subject to the requirements of Sections 2.5 (No Reverse Compiling), 2.6 (Inspection Rights), 10 (Proprietary Rights) and 13 (Confidentiality), Licensee may sublicense its rights under Section 2.1 (Development and Documentation License) to such approved contractors solely for the purpose of, and solely to the extent necessary for, developing, manufacturing, testing and supporting Licensee Products on behalf of Licensee. Unless expressly approved in writing by PalmSource, Licensee shall not have the right to appoint or use a contractor to both exercise any of the license rights in Section 2.1 (Development and Documentation License) and to exercise the distribution rights set forth in 2.2 (Distribution) (“Distribution Contractor”) (other than in the capacity of performing shipping services on Licensee’s behalf where Licensee or its sublicensed Wholly Owned Subsidiary or Majority Owned Subsidiary is the seller of record for the Licensee Products and recognizes the corresponding revenue for such sale). Notwithstanding the foregoing, PalmSource agrees that, due to local tax regulations, Licensee may utilize a Distribution Contractor to manufacture and sell Licensee Products on Licensee’s behalf solely in Brazil, where Licensee will be compensated for such sales on a commission basis. For each such sale, Licensee will pay a royalty as Licensee.specified in Section 5.1 and Section II(E)

Third Party Contractors. Except Either Party shall be free to subcontract to Third Parties (“Subcontractors”) any of its obligations under this Agreement; provided, however that (a) with respect to any AstraZeneca such Subcontractor that will be manufacturing major components for Product Improvementor overseeing or conducting Pre-Clinical Trials and Clinical Trials or toxicology studies for Product, which the applicable Party shall notify the other Party in writing upon retaining such Subcontractor; (b) each Party shall enter into agreements with its Subcontractors that contain confidentiality terms at least as strict as those set forth in Article 10 hereof; and (c) no such subcontracting shall relieve a Party of its obligations hereunder. In addition, in the event that Alexza subcontracts with a Third Party to manufacture, test and/or package Product for use in the Territory, Endo shall be governed given the opportunity to review and comment on such manufacturing agreement in advance of its execution, and Alexza shall give good faith consideration to Endo’s comments. Such Third Party manufacturing agreement(s) shall provide that Endo shall be an intended third party beneficiary of such Third Party manufacturer’s obligations to Alexza with respect to Product thereunder, including with rights of direct enforcement by Section 5.1.6(a)(i)Endo. In addition, Licensee shall use commercially reasonable efforts to obtain from each Third Party contractor that Licensee or its Affiliate proposes to engage to conduct activities under or in connection with this Agreement on behalf of Licensee or its Affiliates an assignment, an exclusive license, or a non-exclusive license (in order of preference), with the right to sublicense through multiple tiers, to Licensee of (i) any Information that is directed to a Licensed Compound or Licensed manufacturing agreement for Product and was not previously for use in the public domain or (ii) any other Invention directed to a Licensed Compound or Licensed ProductTerritory shall provide, in substance, that, in each case ((i) and (ii))the event that Alexza, such Third Party contractor conceivesor any other Person acting on behalf of Alexza or its estate pursuant to any bankruptcy laws, discovers, develops shall seek or otherwise makes in connection with activities conducted relating to this Agreement. The Parties acknowledge that it may not be possible to obtain such assignment or license from any such Third Party contractor on terms acceptable to Licensee or at all (e.g., technology of broad applicability to the operation a bankruptcy rejection of such Third Party contractor’s businessmanufacturing agreement, or improvements then the Third Party manufacturer shall (i) timely exercise its rights to continue any and all licenses (if any) thereunder relating to the Product in the Territory, and (ii) to the extent that bankruptcy rejection effectively terminated the Third Party manufacturing agreement, immediately enter into an agreement with Endo for Product in the Territory on substantially the same terms and conditions as those contained in the agreement with Alexza. The Third Party manufacturing agreements may contain such additional terms and conditions as Alexza and the Third Party manufacturer shall agree to, subject to the review (but not the approval) of Endo prior to the execution of such Third Party contractor’s own proprietary technology used in the manufacturing agreement and provided that such additional terms and conditions do not prejudice, reduce or limit performance of services on behalf of Licensee or its Affiliate), and accordingly, the Parties agree that the inability of Licensee or its Affiliate, despite the use of commercially reasonable *** CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. efforts, to obtain by such assignment or license from a Third Party contractor on terms acceptable to Licensee or at all shall not constitute a breach of Licensee’s obligations manufacturer under this Agreement. Licensee shall require its and its Affiliates’ Sublicensees to be subject to the obligations set forth in this Section 5.1.6(b) to the same extent as Licensee.

Third Party Contractors. Except with respect LICENSEE may appoint a third party contractor ("Contractor") to assist the LICENSEE in LICENSEE's modification of the Licensed Source Code as authorized hereunder; provided that any AstraZeneca Product Improvementsuch Contractor's access to and use of the Licensed Source Code shall only be permitted pursuant to a signed written agreement between LICENSEE and such Contractor giving the Contractor rights no broader than those granted LICENSEE in this Agreement, which shall be governed by Section 5.1.6(a)(i)but limited to the sole purpose of assisting the LICENSEE, Licensee shall use commercially reasonable efforts to obtain from each Third Party contractor that Licensee and including provisions incorporating the additional requirements set forth below: (i) Any claim, demand or its Affiliate proposes to engage to conduct activities under or in connection with this Agreement right of action arising on behalf of Licensee a Contractor from furnishing to it or its Affiliates an assignmentuse by it of Licensed Source Code shall be solely against LICENSEE, an exclusive license, or a non-exclusive license (in order of preference), with the right to sublicense through multiple tiers, to Licensee of (i) and LICENSEE hereby indemnifies D2 against any Information that is directed to a Licensed Compound or Licensed Product and was not previously in the public domain or such claims. (ii) any other Invention directed to a Licensed Compound or Licensed Product, that, in each case ((i) and (ii)), such Third Party contractor conceives, discovers, develops or otherwise makes in connection with activities conducted relating to this Agreement. The Parties acknowledge that it may not be possible to obtain such assignment or license from any such Third Party contractor on terms acceptable to Licensee or at all (e.g., technology of broad applicability Contractor shall agree to the operation of such Third Party contractor’s business, or improvements same responsibilities and obligations and other restrictions pertaining to such Third Party contractor’s own proprietary technology used in the performance of services on behalf of Licensee or its Affiliate), and accordingly, the Parties agree that the inability of Licensee or its Affiliate, despite the use of commercially reasonable *** CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. efforts, to obtain such assignment or license from a Third Party contractor on terms acceptable to Licensee or at all shall not constitute a breach of Licensee’s obligations Licensed Source Code as those undertaken by LICENSEE under this Agreement. Licensee shall require its Software License D2 Technologies, Inc. and its Affiliates’ Sublicensees to be subject Maintenance Agreement August 4, 1997 CONFIDENTIAL (iii) Contractor may not retain any copy of the Licensed Source Code or any modification or derivative work thereof and, upon completion of the project for which Contractor was permitted access to the obligations set forth Licensed Source Code or termination of this Agreement, shall return or destroy (i) all copies of Licensed Source Code furnished to such Contractor or made by such Contractor and (ii) all copies of any modifications or derivative works made by such Contractor based on such Licensed Source Code copies stored in any computer memory or storage medium, and Contractor's computer shall be removed from Exhibit E if such computer was listed as a Development Computer. A writing executed by an officer of Contractor shall be provided to D2 certifying that the Contractor has returned or destroyed all copies of the Licensed Source Code in its possession or control. (iv) Unless Contractor obtains a license for the Licensed Source Code from D2, Contractor may not acquire any ownership interest in any modification or derivative work prepared by such Contractor based upon or using Licensed Source Code licensed to LICENSEE under this Section 5.1.6(bAgreement. (v) Copies of such agreements shall be provided to the same extent as LicenseeD2 on request; provided however, that portions of such agreements not required by this Article 7 may be deleted from such copies.