Common use of Upstream Agreements Clause in Contracts

Upstream Agreements. TESARO represents, warrants and covenants (as applicable) to ZAI that: (a) as of the Effective Date, except for the Upstream Agreements, there is no agreement between TESARO or its Affiliates with any Third Party pursuant to which TESARO or its Affiliates has in-licensed any TESARO IP; (b) as of the Effective Date, it has provided ZAI with a true and complete copy of each Upstream Agreement, and each Upstream Agreement is in full force and effect, and the (sub)licenses it obtained under the AZ Agreements encompass the right to make, use and sell the Licensed Compound and Licensed Product in the Field in the ZAI Territory in accordance with the terms of the AZ Agreements, and during the Term, TESARO shall not modify or terminate either of the AZ Agreements in a manner that would diminish the right of ZAI under this Agreement to make, use and sell the Licensed Compound and Licensed Product in the Field in the ZAI Territory; (c) as of the Effective Date, no written notice of default or termination has been received or given under any Upstream Agreement, and to its knowledge, there is no act or omission by TESARO that would provide a right to terminate any Upstream Agreement; (d) during the Term of this Agreement, it shall maintain each Upstream Agreement in full force and effect and shall not terminate, amend, waive or otherwise modify (or consent to any of the foregoing) its rights under any Upstream Agreement in any manner that materially diminishes the rights or licenses granted to ZAI hereunder or increase or generate any new payment obligation under any Upstream Agreement that would apply to ZAI (such as any milestone payment under Section 7.02 of the Merck Agreement that would apply to ZAI’s Development activities), without ZAI’s express written consent; and

Upstream Agreements. TESARO represents, warrants and covenants (as applicable) to ZAI that: (a) as of the Effective Date, except for the Upstream Agreements, there is no agreement between TESARO or its Affiliates with any Third Party pursuant to which TESARO or its Affiliates has in-licensed any TESARO IP; (b) as of the Effective Date, it has provided ZAI with a true and complete copy of each Upstream Agreement, and each Upstream Agreement is in full force and effect, and the (sub)licenses it obtained under the AZ Agreements encompass the right to make, use and sell the Licensed Compound and Licensed Product in the Field in the ZAI Territory in accordance with the terms of the AZ Agreements, and during the Term, TESARO shall not modify or terminate either of the AZ Agreements in a manner that would diminish the right of ZAI under this Agreement to make, use and sell the Licensed Compound and Licensed Product in the Field in the ZAI Territory; (c) as of the Effective Date, no written notice of default or termination has been received or given under any Upstream Agreement, and to its knowledge, there is no act or omission by TESARO that would provide a right to terminate any Upstream Agreement; (d) during the Term of this Agreement, it shall maintain each Upstream Agreement in full force and effect and shall not terminate, amend, waive or otherwise modify (or consent to any of the foregoing) its rights under any Upstream Agreement in any manner that materially diminishes the rights or licenses granted to ZAI hereunder or increase or generate any new payment obligation under any Upstream Agreement that would apply to ZAI (such as any milestone payment under Section 7.02 of the Merck Agreement that would apply to ZAI’s Development activities), without ZAI’s express written consent; and (e) in the event of any notice of breach of any Upstream Agreement by TESARO, TESARO shall promptly notify ZAI in writing, and if TESARO fails to cure such

Upstream Agreements. TESARO represents2.7.1 Subject to Section 2.7.2, warrants Licensor agrees that all upfront, milestone, royalty, and covenants other payments to any Third Party (as applicableincluding to any Third Party which becomes any Acquisition Entity of Licensor and including in relation to any sales by Licensee, its Affiliates or Sublicensees) (collectively, “In-Licensor Payments”) with respect to ZAI any Existing Upstream Agreements [***] will be the sole responsibility of Licensor. 2.7.2 Licensee agrees that:, [***]. (a) as of 2.7.3 In the event that, after the Effective Date, except Licensor in-licenses Licensed Technology that would be deemed Controlled for purposes of the License but for Licensor owing In-Licensor Payments under the agreement for such in-licensed Licensed Technology (each such agreement, a “New Upstream Agreements, there is no agreement between TESARO Agreement”) on account of any sublicense granted thereunder to Licensee or its Affiliates with any Third Party pursuant to which TESARO or its Affiliates has Sublicensees, Licensor will notify Licensee of the existence of and anticipated amounts of such In-Licensor Payments attributable to the Product (based on Licensee’s, its Affiliates’ and its Sublicensees’ pro rata share of the total amount thereof) and Licensee will have the right to decline a sublicense to such in-licensed any TESARO IP; Licensed Technology or take such sublicense (b) as of the Effective Datea New Upstream Agreement for which Licensee elects a sublicense, it has provided ZAI with a true and complete copy of each an “Opted-In New Upstream Agreement”), and each in which case Licensee agrees to comply with any obligations under such Opted-In New Upstream Agreement that apply to Licensee, its Affiliates and its Sublicensees and of which Licensee is in full force informed by Licensor and effectto reimburse Licensor for such In-Licensor Payments. In the event Licensee elects to take such sublicense and is required to reimburse Licensor for In-Licensor Payments thereunder, Licensee will make such payments to Licensor within [***] days of receiving an invoice from Licensor for the same and shall be entitled to offset such payments against the (sub)licenses it obtained royalties otherwise due under the AZ Agreements encompass the right to make, use and sell the Licensed Compound and Licensed Product in the Field in the ZAI Territory Section 6.4 as a “Third Party Payment” in accordance with Section 6.5.3. 2.7.4 [***]. 2.7.5 Licensee shall be free, without the terms consent of the AZ AgreementsJSC or the Licensor, and at any time during the Term, TESARO shall not modify or terminate either of the AZ Agreements in a manner that would diminish the right of ZAI under this Agreement to make, use and sell the Licensed Compound and Licensed Product in the Field in the ZAI Territory; (c) as of the Effective Date, no written notice of default or termination has been received or given under any Upstream Agreement, and obtain licenses to its knowledge, there is no act or omission by TESARO that would provide a right to terminate any Upstream Agreement; (d) during the Term of this Agreement, it shall maintain each Upstream Agreement in full force and effect and shall not terminate, amend, waive or otherwise modify (or consent to any of the foregoing) its rights under any Upstream Agreement in any manner that materially diminishes the rights or licenses granted to ZAI hereunder or increase or generate any new payment obligation under any Upstream Agreement that would apply to ZAI (such as any milestone payment under Section 7.02 of the Merck Agreement that would apply to ZAI’s Development activities), without ZAI’s express written consent; andThird Party intellectual property rights.

Upstream Agreements. TESARO represents, warrants The Parties acknowledge and covenants (as applicable) to ZAI agree that: (a) as of Licensor obtained the Effective Dateright to certain Licensed Know-How, except for Licensed Patents and Licensed Trademarks from MedImmune under the Upstream Agreements, there is no agreement between TESARO or its Affiliates with any Third Party pursuant to which TESARO or its Affiliates has in-licensed any TESARO IPMedImmune License; (b) as the licenses granted to Licensee under this Agreement under such Licensed Know-How, Licensed Patents and Licensed Trademarks constitute the grant of the Effective Date, it has provided ZAI with a true and complete copy of each Upstream Agreement, and each Upstream Agreement is in full force and effect, and the (sub)licenses it obtained sublicenses under the AZ Agreements encompass MedImmune License; (c) Licensor is a party to the right SFJ Agreement which provides for SFJ to makeprovide, use and sell among the other things, certain funding to Licensor for the Development of the Licensed Compound and Licensed Product in and grants SFJ certain rights regarding the Field in the ZAI Territory in accordance with the terms Development of the AZ Agreements, and during the Term, TESARO shall not modify or terminate either of the AZ Agreements in a manner that would diminish the right of ZAI under this Agreement to make, use and sell the Licensed Compound and Licensed Product in the Field in the ZAI TerritoryProduct; (cd) Licensor sources certain strains and other technology from Xxxxxx as required for the Manufacture of the Effective Date, no written notice Licensed Compound and Licensed Product; (e) Licensee shall not take or fail to take any action in breach of default or termination has been received or given under any Upstream Agreement, and to its knowledge, there is no act or omission by TESARO this Agreement that would provide a right cause Licensor to terminate be in breach of any Upstream Agreement; (df) during Licensor shall, on reasonable request from Licensee, provide Licensee with guidance and reasonable assistance in interpreting the Term of this Agreement, it shall maintain each Upstream Agreement in full force and effect and Agreements; (g) Licensor shall not terminate, amend, waive or otherwise modify (or consent make any changes to any terms and conditions of the foregoing) its rights under any Upstream Agreement in any manner that materially diminishes the rights or licenses granted to ZAI hereunder or increase or generate any new payment obligation under any Upstream Agreement that would apply materially and adversely affect the rights and obligations of Licensee under this Agreement, without the prior written consent of Licensee, which shall not be unreasonably withheld; (h) Licensor shall provide Licensee with a copy of any executed amendments to ZAI (such as any milestone payment under Section 7.02 of the Merck Upstream Agreement that would apply relate to ZAIthe Territory or Licensee’s Development activitiesrights and obligations under this Agreement, which may be redacted as reasonably required by Licensor; (i) in the event that the SFJ Agreement is terminated with the result that Licensor continues to Control the Licensed Compounds and Licensed Product, any reference in this Agreement to SFJ and/or SFJ Agreement shall be read and construed as deleted and any relevant provisions as no any longer applicable; and (j) anything to the contrary in this Agreement notwithstanding, Licensor shall be solely responsible for all financial and payment obligations under any Upstream Agreement. For avoidance of doubt, Licensee shall not be responsible for any obligation or liability of Licensor under the Upstream Agreements (including any financial or payment obligations or liabilities), without ZAI’s express written consent; andexcept if and to the extent any such Upstream Agreement is assigned or sublicensed to Licensee in accordance with, and subject to, (A) the Acknowledgement of Grant of a Sublicense by and among Licensor, Licensee and MedImmune, or (B) the SFJ Consent Agreement by and among Licensor, Licensee and SFJ, in each case entered into by the respective parties on or about the Effective Date.

Upstream Agreements. TESARO represents, warrants and covenants (as applicable) to ZAI that: (a) as of the Effective Date, except for the Upstream Agreements, there is no agreement between TESARO or its Affiliates with any Third Party pursuant to which TESARO or its Affiliates has in-licensed any TESARO IP; (b) as of the Effective Date, it has provided ZAI with a true and complete copy of each Upstream Agreement, and each Upstream Agreement is in full force and effect, and the (sub)licenses it obtained under the AZ Agreements encompass the right to make, use and sell the Licensed Compound and Licensed Product in the Field in the ZAI Territory in accordance with the terms of the AZ Agreements, and during the Term, TESARO shall not modify or terminate either of the AZ Agreements in a manner that would diminish the right of ZAI under this Agreement to make, use and sell the Licensed Compound and Licensed Product in the Field in the ZAI Territory; (c) as of the Effective Date, no written notice of default or termination has been received or given under any Upstream Agreement, and to its knowledge, there is no act or omission by TESARO that would provide a right to terminate any Upstream Agreement; (d) during the Term of this Agreement, it shall maintain each Upstream Agreement in full force and effect and shall not terminate, amend, waive or otherwise modify (or consent to any of the foregoing) its rights under any Upstream Agreement in any manner that materially diminishes the rights or licenses granted to ZAI hereunder or increase or generate any new payment obligation under any Upstream Agreement that would apply to ZAI (such as any milestone payment under Section 7.02 of the Merck Agreement that would apply to ZAI’s Development activities), without ZAI’s express written consent; and (e) in the event of any notice of breach of any Upstream Agreement by TESARO, TESARO shall promptly notify ZAI in writing, and if TESARO fails to cure such breach, ZAI shall have the right, but not the obligation, to cure such breach on behalf of TESARO and to offset any reasonable amounts incurred or paid by ZAI in connection with the cure of such breach against any amounts otherwise payable by to TESARO under this Agreement. In the event of any notice of breach of any Upstream Agreement by the applicable Upstream Licensor in a manner that will or is likely to materially adversely affect ZAI’s rights or obligations under this Agreement, TESARO shall immediately notify ZAI in writing, and TESARO shall take such actions as reasonably requested by ZAI to enforce such Upstream Agreement.

Upstream Agreements. TESARO represents, warrants and covenants (as applicable) to ZAI that: (a) as of the Effective Date, except for the Upstream Agreements, there is no agreement between TESARO or its Affiliates with any Third Party pursuant to which TESARO or its Affiliates has in-licensed any TESARO IP; (b) as of the Effective Date, it has provided ZAI with a true and complete copy of each Upstream Agreement, and each Upstream Agreement is in full force and effect, and the (sub)licenses it obtained under the AZ Agreements encompass the right to make, use and sell the Licensed Compound and Licensed Product in the Field in the ZAI Territory in accordance with the terms of the AZ Agreements, and during the Term, TESARO shall not modify or terminate either of the AZ Agreements in a manner that would diminish the right of ZAI under this Agreement to make, use and sell the Licensed Compound and Licensed Product in the Field in the ZAI Territory; (c) as of the Effective Date, no written notice of default or termination has been received or given under any Upstream Agreement, and to its knowledge, there is no act or omission by TESARO that would provide a right to terminate any Upstream Agreement; (d) during the Term of this Agreement, it shall maintain each Upstream Agreement in full force and effect and shall not terminate, amend, waive or otherwise modify (or consent to any of the foregoing) its rights under any Upstream Agreement in any manner that materially diminishes the rights or licenses granted to ZAI hereunder or increase or generate any new payment obligation under any Upstream Agreement that would apply to ZAI (such as any milestone payment under Section 7.02 of the Merck Agreement that would apply to ZAI’s Development activities), without ZAI’s express written consent; and (e) in the event of any notice of breach of any Upstream Agreement by TESARO, TESARO shall promptly notify ZAI in writing, and if TESARO fails to cure such breach, ZAI shall have the right, but not the obligation, to cure such breach on behalf of TESARO and to offset any reasonable amounts incurred or paid by ZAI in connection with the cure of such breach against any amounts otherwise payable by to TESARO under this Agreement. In the event of any notice of breach of any Upstream Agreement by the applicable Upstream Licensor in a manner that will or is likely to materially adversely affect ZAI’s rights or obligations under this Agreement, TESARO shall immediately notify ZAI in writing, and