Common use of Material Condition Clause in Contracts

Material Condition. The terms set forth in this Article Four (4) are material conditions of this Agreement, in absence of which the license conveyed under Section 3.1 of this Agreement would not have been granted. COMPANY’s failure to perform its obligations under Section 4.1 will be considered a material breach of this Agreement and in such event WVURC may terminate this Agreement in accordance with the provisions of Article Nine (9) herein, if COMPANY’s failure to perform is not cured within the prescribed cure period: (i) If at any time COMPANY abandons or suspends its research, development, or marketing of the SUBJECT TECHNOLOGY, or its intent to research, develop and market SUBJECT TECHNOLOGY or LICENSED PRODUCTS, or otherwise fails to comply with its due diligence obligations under this Article for a period exceeding sixty (60) calendar days, COMPANY shall immediately notify WVURC giving reasons and a statement of its intended actions; if WVURC does not find the intended actions to be sufficient, WVURC reserves the right to initiate termination procedures for a breach of this Agreement pursuant to Article Nine (9) herein. (ii) LICENSEE agrees that WVURC shall be entitled to terminate this Agreement pursuant to Article Nine (9) upon the occurrence of the failure by COMPANY to meet any of the due diligence milestones defined in SCHEDULE B. (iii) In the event LICENSEE has failed to achieve any of the due diligence milestone deadlines identified in SCHEDULE B, as the case may be, for up to [***] periods by paying extension fees of (i) [***] dollars ($[***]) for the first extension period, (ii) [***] dollars ($[***]) for the second extension period, (iii) [***] dollars ($[***]) for the third extension period, (iv) [***] dollars ($[***]) for the fourth extension period, (v) [***] dollars ($[***]) for the fifth extension period, and (vi) [***] dollars ($[***]) for the sixth extension period. (iv) Such payment applicable to an extension period shall be made to WVURC no later than thirty (30) days prior to the applicable deadline or current extension period expiration. For avoidance of doubt, an extension applied to the PHASE I CLINICAL TRIAL deadline (Milestone One) will also extend the PHASE II CLINICAL TRIAL (Milestone Two), PHASE III CLINICAL TRIAL (Milestone Three) and FDA acceptance to file (Milestone Four) deadlines by the same amount of time, and an extension applied to the PHASE II CLINICAL TRIAL deadline will also extend the PHASE III CLINICAL TRIAL and FDA acceptance to file deadlines by the same amount of time, and an extension applied to the PHASE III CLINICAL TRIAL deadline will also extend the FDA acceptance to file deadline by the same amount of time. Failure to make a payment for an extension period shall be a breach of this Agreement under Section 9.2(i) herein. (v) Time delay not counted toward the due diligence milestone deadlines would only be from the following events which must be demonstrated in the form of written justification (for example, correspondence from a regulatory authority) provided by COMPANY to WVURC: any regulatory hold, constraint or restriction imposed or raised by a regulatory authority that is not predicated on regulatory filing deficiencies of COMPANY; FDA refusal to file; FDA review matter; delays caused by other government agencies at no fault of COMPANY; and formal third party legal actions filed before a regulatory body or entity with jurisdiction challenging ability to file a New Drug Application (NDA).