Common use of Second Phase Clause in Contracts

Second Phase. (a) During the Second Phase, with respect to a particular jurisdiction, Bioverativ shall forecast Drug Substance, Drug Product and Finished Goods and order Drug Product or Finished Goods that are packaged and labelled for sale by Bioverativ or by a Third Party designated by Bioverativ, which shall include, for the avoidance of doubt, any product remaining unsold following the end of the First Phase that was forecasted by Bioverativ during the First Phase and that bears Biogen’s or a Biogen designated Third Party’s NDC numbers (or any equivalent non-U.S. designation of responsible party). Bioverativ shall take title to all such Drug Product or Finished Goods in accordance with Section 9.2(d) in order to enable Bioverativ or such designated Third Party to distribute, sell and have sold such products under Bioverativ’s or such Third Party’s necessary authorizations and licenses for the marketing of prescription biopharmaceutical products in any applicable territory. (b) Effective as of the beginning of the Second Phase on a territory-by-territory basis, Biogen, on behalf of itself and its Affiliates, hereby grants to Bioverativ and its Affiliates, until the earlier of (i) the sale of the last Finished Goods bearing the trade marks and trade dress of Biogen as provided on Finished Goods manufactured by Biogen for Bioverativ (the “Biogen Marks”) in the applicable territory or (ii) the expiration of the usable shelf life of the last Finished Goods in such territory bearing the Biogen Marks, a non-exclusive, sublicenseable, worldwide, and royalty-free license to use the Biogen Marks to facilitate the transition by Bioverativ and its Affiliates to the sale of Finished Goods bearing new names and marks. All goodwill associated with the Biogen Marks generated by Bioverativ or its Affiliates’ use of the Biogen Marks pursuant to the foregoing license in this Section 4.2(b) shall inure to the benefit of Biogen and its Affiliates. Bioverativ and its Affiliates shall use the Biogen Marks at a level of quality equivalent in all material respects to that in effect as of the beginning of the Second Phase in the applicable territory. For purposes of clarity, nothing in this Section 4.2(b) shall preclude any uses of the Biogen Marks by Bioverativ and its Affiliates that are required or otherwise not prohibited under Applicable Law, including uses of the Biogen Marks not in commerce, uses that would not cause confusion as to the origin of a good or service, and references to the Biogen Marks in historical, tax, and similar records.