Common use of New Technologies Clause in Contracts

New Technologies. Subject to the bona fide rights of Third Parties that may exist now or hereafter, excluding licenses granted by XCYTE in the Field and the Territory, and during the Term of the Agreement, XCYTE hereby grants to FRESENIUS the right to include in the Exclusive License as “Xcellerate™ Technology” any Improvements (“New Technology”) in the Field and in the Territory, provided that FRESENIUS will be obligated, at minimum, to pay XCYTE (a) for the direct costs and expenses incurred by XCYTE (including but not limited to labor and overhead expenses) in connection with transferring such New Technology to FRESENIUS plus an additional profit markup to be mutually agreed upon in good faith, within [*] days of receipt of invoice(s), and (b) any milestones and royalties that accrue to Third Parties as a result of FRESENIUS’ development and commercialization of a Product incorporating such New Technology, in addition to any milestones and royalties that are otherwise payable under this Agreement. Exhibit A shall be amended from time to time to add the patents and patent applications covering New Technologies that FRESENIUS elects to include under this Agreement. XCYTE shall notify FRESENIUS of New Technology in writing and FRESENIUS shall execute its right under this 3.3 within four months after receipt of such notice. Nothing herein shall be construed as a waiver of first-to-use, first to invent defense by FRESENIUS.