TRADEMARK LICENSE AGREEMENT

1.1    Incorporated Definitions . Capitalized terms that are used in this Agreement but are not otherwise defined in this Agreement will have the respective meaning ascribed to such terms in the License Agreement.

1.2    Additional Definitions . When used in this Agreement, whether in the singular or plural, each of the following capitalized terms shall have the meanings set forth in this Section 1

(a)    “ AzaSite Trademark ” means the trademark AzaSite™.

(b)    “ Domain Names ” means the internet domain names set forth in Schedule 1 , such domain names being owned and registered by InSite.

(c)    “ Independent Sublicensee ” has the meaning set forth in Section 4.4.

(d)    “ InSite Trademarks ” means the trademarks set forth in Schedule 1 , such marks being owned and registered by InSite. From and after the effective date of the assignment of the AzaSite Trademark by InSite to Inspire pursuant to Section 2.3(b) of the License Agreement, the term “InSite Trademarks” shall not include the AzaSite Trademark for any purpose under this Agreement.

(e)    “ Term ” has the meaning set forth in Section 4.1.

2.1    Licenses . 

(a)    Subject to the terms and conditions of this Agreement, InSite hereby grants to Inspire a royalty-free, exclusive (even as to InSite and its Affiliates) right and license, with the right to grant sublicenses, to use the AzaSite Trademark and the Domain Names in connection with the marketing, commercialization and sale of Subject Products in the Field in the Territory under the License Agreement. In connection with such license, InSite agrees immediately to cease any and all use of the Domain Names and to execute and deliver such further and other documents and to perform such actions as may be necessary to enable Inspire to access and use the Domain Names under such license. 

(b)    Subject to the terms and conditions of this Agreement, InSite hereby grants to Inspire a royalty-free, non-exclusive right and license, with the right to grant sublicenses, to use the InSite Trademarks (other than the AzaSite Trademark) in connection with the marketing, commercialization and sale of Subject Products in the Field in the Territory under the License Agreement. Notwithstanding the non-exclusive nature of the foregoing grant, InSite hereby expressly covenants that it shall not, and shall cause its Affiliates and licensees not to, directly or indirectly: (x) use the InSite Trademarks in connection with the marketing, commercialization or sale of Subject Products in the Field in the Territory; or (y) grant to any Third Party any right or license under the InSite Trademarks to conduct any of the activities set forth in the foregoing clause (x). 

2.2    Sublicenses . Inspire may sublicense the rights granted under Section 2.1 only to sublicensees who will use the InSite Trademarks and the Domain Names in connection with the marketing, commercialization and sale of Subject Products in the Field in the Territory under the License Agreement. All sublicenses granted hereunder must be in writing and must contain provisions that are not inconsistent with the terms and conditions of this Agreement. All sublicenses shall include quality control standards at least as protective as those referenced under Section 3.1.  

2.3    Use of Affiliates and Third Party Contractors . The licenses granted under Section 2.1 include the right of Inspire to engage its Affiliates and Third Party contractors in exercising such rights and in carrying out its activities and obligations under this Agreement, provided that (i) all such agreements with Third Party contractors must be in writing and must contain provisions that are not inconsistent with the terms and conditions of this Agreement and (ii) Inspire remains responsible for the compliance with this Agreement by such Affiliates or Third Party contractors.

2.4    No Implied Grants . Except as expressly licensed hereunder, neither Party grants any rights to the other Party under this Agreement, by implication or estoppel, under any of its intellectual property rights.  

2.5    Registration of License . Notwithstanding anything to the contrary in Section 5.1, Inspire, at its expense, may register the licenses granted under this Agreement in any country of the Territory. Upon request by Inspire, InSite agrees promptly to execute any “short form” licenses consistent with the terms and conditions of this Agreement submitted to it by Inspire reasonably necessary to effect the foregoing registration in such country.

2.6    Notice . In connection with the use of the InSite Trademarks, Licensee will mark the first prominent use of the InSite Trademark with the appropriate trademark symbol (“TM” or “®”, as set forth in Schedule 1 or as otherwise reasonably instructed by InSite in writing) and will include the following legend in connection with such use: “[InSite Trademark] is the trademark of InSite Vision Incorporated and is being used by permission.”

3.1    Quality Control and Standards . Inspire shall adhere to such reasonable quality control standards that InSite may from time to time promulgate and communicate to Inspire in writing with respect to the InSite Trademarks, and shall comply materially with all federal, state and local laws and regulations governing the use of the InSite Trademarks in connection with the provision of Inspire Licensed Products. In order to confirm that Inspire’s use of the InSite Trademarks complies with this Section 3.1, InSite shall have the right upon written notice to require that Inspire submit to InSite a reasonable number of representative samples of any Inspire Licensed Products or related materials bearing the InSite Trademarks.

3.2    Protection of the InSite Trademarks . Inspire hereby acknowledges InSite’s rights in the InSite Trademarks and shall not at any time do or authorize to be done any action that would prejudice the validity or registration of the InSite Trademarks or the good will associated therewith, including filing for, using or authorizing the use of any trademark (i) likely to cause consumer confusion with respect to the InSite Trademarks or (ii) containing “SITE” as a part. It is understood that neither Inspire nor any of its Affiliates shall acquire or claim any independent right, title or interest in or to the InSite Trademarks by virtue of Inspire’s use of the InSite Trademarks as provided in this Agreement, it being the intention of the Parties that all use of the InSite Trademarks by Inspire, and all goodwill associated therewith, shall at all times inure to the exclusive benefit of InSite. 

4.1    Term . Except as set forth in