ABX. ABX represents, warrants and covenants to GNE that:
(a) it has the full right and authority to enter into this Agreement and grant the rights and licenses granted herein;
(b) it has not previously granted, and during the term of this Agreement will not grant, any rights inconsistent or in conflict with the rights and licenses granted to GNE herein, including without limitation, any right, license in and to the Licensed Technology granted under this Agreement, or any portion thereof, with respect to the Products or their development, manufacture, use or sale;
(c) to its knowledge as of the Option Effective Date, there are no existing or threatened actions, suits or claims pending against ABX with respect to the Licensed Technology or the right of ABX to enter into and perform its obligations under this Agreement or the [*] Product License;
(d) it will not take any action or fail to take any action under this Agreement that will cause a breach of the GenPharm Cross-License, the Xenotech Agreement, the Product License, or any ABX In-License; provided, however, that it shall not be a breach of this covenant if ABX cures any breach of such third party agreement pursuant to the cure provisions contained therein;
(e) as of the Option Effective Date, ABX has no knowledge (without the obligation to perform due diligence) of any rights of third parties that would interfere with the use of the ABX Know-How or practice of the ABX Patent Rights as contemplated under this Agreement (including, without limitation, work under the Research Plan or otherwise in the Research Field pursuant to this Agreement or the [*] Product License), and, as of the Option Effective Date, ABX has no knowledge (without the obligation to perform due diligence) that any patents or patent applications within the ABX Patent Rights are invalid or unenforceable or that their practice as licensed hereunder would infringe patent rights of third parties, provided, however, that this representation does not apply to possible infringements relating to the Product Antigen; [*] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.
(f) as of the Option Effective Date, Cell Genesys, Inc. ("CGI") has assigned to ABX all of CGI's rights and obligations under the Xenotech Agreement, and ABX is a party to the Xenotech Agreement in lieu of CGI;
(g) on the first date on which the Product License ...
ABX. ABX shall indemnify and hold harmless CuraGen, and its directors, officers, employees and agents, from and against all losses, liabilities, damages and expenses, including reasonable attorneys’ fees and costs (collectively, “Liabilities”), resulting from any claims, demands, actions or other proceedings by any Third Party arising from (a) the material breach of any representation, warranty or covenant by ABX under this Agreement, (b) any use, handling or storage by ABX, its Sublicensees (other than CuraGen) and their respective Affiliates of the CuraGen Technology and Information or the Research Program Technology and Information, (c) the manufacture, use, sale, handling or storage by ABX, its Sublicensees (other than CuraGen) and their respective Affiliates of ABX Products (without regard to culpable conduct), or (d) any use by ABX, its Sublicensees (other than CuraGen) and their respective Affiliates of the Confidential Information of CuraGen; provided, however, that ABX shall not be obligated to indemnify or hold harmless CuraGen for such Liabilities to the extent that such Liabilities arise from the gross negligence or willful misconduct of CuraGen.
ABX. GNE agrees to [*] under any Core Third Party Patent; provided, however, that neither ABX nor GNE (nor its Sublicensees) shall be obligated [*], and provided, further, that if ABX elects not [*] it shall promptly notify GNE of such election, and GNE shall thereafter be [*] on its own behalf. In the absence of such an election, on and after the date falling [*] after either party first notifies the other of the Core Third Party Patent, GNE [*] directly [*]. If ABX [*] such patent, ABX will be responsible to [*] owed thereunder for the Net Sales of Products in the Territory by GNE and its Sublicensees; provided, however, in the event that the [*], as set forth in this Section 3.6.1, [*]; and provided, further, that if both ABX and GNE [*], GNE shall not thereafter [*] Core Third Party Patent by ABX under this Agreement, and GNE shall [*], to be offset as provided in Section 3.6.2 below. ABX shall invoice GNE for any such amounts [*] on such Net Sales within [*] after receiving the report from GNE under Section 4.1 setting forth the quarterly Net Sales of Products in each country and/or any annual reconciliation regarding such royalties, and GNE shall pay such amounts to ABX within [*] after delivery of such invoice. It is understood that such invoice will not [*] for which the invoice is sent, or the [*]. The parties hereto agree to discuss and negotiate in good [*] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. faith regarding the manner in which the [*].
ABX. ABX agrees to save, defend and hold GNE and its directors, officers, employees, agents and Affiliates harmless from and against any Liabilities resulting directly from (a) third party claims arising from any negligence or willful misconduct of ABX (or its directors, officers, employees, or agents) or the breach of any representations or warranties of ABX under this Agreement, (b) any third party claims arising from any negligence or willful misconduct of ABX or its directors, officers, employees, agents in the course of conducting ABX work under the Research Plan or (c) any third party claims arising from infringement of a Core Third Party Patent in the course of using the Licensed Technology in accordance with this Agreement, the GNE Option Agreement, or the MTA, (including, without limitation, the production of Antibodies to the Product Antigen); provided, however, that indemnification under Section 8.2(c) shall only be required by ABX in the event that neither ABX nor GNE enters into a license with the party claiming infringement, under Section 3.6 of this Agreement; provided, further, that indemnification under Section 8.2(c) shall be limited to amounts paid by GNE to ABX under this Agreement; and provided, further, that nothing in this Section 8.2 shall obligate ABX to save, defend or hold harmless GNE for any such Liabilities to the extent arising from the negligence or willful misconduct of GNE or its directors, officers, employees, agents or Sublicensees.
ABX. ABX represents and warrants that: (i) it has the full right and authority to enter into this Agreement; (ii) to the knowledge of ABX, there are no existing or threatened actions, suits or claims pending with respect to the subject matter hereof or the right of ABX to enter into and perform its obligations under this Agreement; (iii) it has not entered and during the term of this Agreement will not enter any other agreement inconsistent or in conflict with this Agreement; (iv) it will not take any action that will cause a breach of the GenPharm Cross License, the MRLOA or a Product License, which in any such case would adversely affect the rights of CGI hereunder or under a CGI Product Sublicense; (v) Exhibit D hereto lists the ABX-Controlled rights as of the Effective Date; and (vi) ABX will not, without CGI's prior consent, amend the MRLOA or a Product License for a CGI Antigen or the GenPharm Cross License in any manner that impairs CGI's rights under this Agreement.
ABX. ABX represents and warrants that:
(i) it has the full right and authority to enter into this Agreement and grant the rights and licenses granted herein;
(ii) it has not previously granted and will not grant any rights inconsistent or in conflict with the rights and licenses granted to CGI herein;
(iii) there are no existing or threatened actions, suits or claims pending against ABX with respect to the Licensed Technology or the right of ABX to enter into and perform its obligations under this Agreement;
(iv) it has not previously granted, and will not grant during the term of this Agreement, any right, license or interest in and to the Licensed Technology, or any portion thereof, with respect to the manufacture, sale, offer for sale, use, or import of the Product in the Gene Therapy field; and
(v) Attachment B hereto sets forth all ABX-Controlled Rights as of the Effective Date; ABX shall not terminate (or permit to be terminated), or alter or amend, any of the ABX-Controlled Rights in a manner that adversely affects or may adversely affect CGI, without CGI's prior written consent.
ABX. ABX agrees to save, defend and hold GNE and its directors, officers, employees, agents and Affiliates harmless from and against any Liabilities resulting directly from (a) third party claims arising from any negligence or willful misconduct of ABX (or its directors, officers, employees, or agents) or the breach of any representations or warranties of ABX under this Agreement, or (b) any third party claims arising from any negligence or willful misconduct of ABX or its directors, officers, employees, or agents in the course of conducting ABX work under the Research Plan; provided, however, that nothing in this Section 6.2 shall obligate ABX to save, defend or hold harmless GNE for any such Liabilities to the extent arising from the negligence or willful misconduct of GNE or its directors, officers, employees, agents or Sublicensee.
ABX. ABX shall keep complete, true and accurate books of account and records for the purpose of determining the royalty amounts payable to ABX under Sections 3.3.3, 3.3.8, 3.6.1 or 3.
ABX. ABX shall indemnify and hold harmless AZ and its Affiliates, their respective permitted sublicensees, Distributors and subcontractors and each of their directors, officers, employees and agents (the “AZ Indemnitees”) from and against all Liabilities resulting from any Claims to the extent resulting from (a) the gross negligence or willful misconduct of ABX under, or material breach by ABX of, this Agreement (including any representation, warranty or covenant therein); (b) the Exploitation by ABX, its sublicensees (other than AZ) or their respective Affiliates of ABX Products (but excluding any such Liabilities or Claims to the extent resulting from the negligence of AZ or its Affiliates or their respective agents or subcontractors under this Agreement, any Co-Development Agreement, the Process Science/Clinical Manufacture Agreement, the Manufacturing and Supply Agreement or any other Related Agreement); (c) the infringement (or alleged infringement) by (x) any AZ Indemnitee in performing AZ’s obligations, or exercising AZ’s rights, or (y) any ABX Indemnitee in performing ABX’s obligations, or exercising ABX’s rights, in each case under this Agreement to the extent that such infringement results from (i) the use of the Core Technology under this Agreement, or (ii) to the extent ABX knew or reasonably should have known of Third Party Patent Rights and did not disclose them to AZ pursuant to Section 2.2.1(c), 2.2.1(j), 2.2.1(k), the second sentence of Section 4.17.2 or Section 2.2.2(b), 2.2.3(b) or 5.3.1, the Additional Technology Controlled by ABX that was originally disclosed by ABX for use under the applicable Research Program or Development Program or Antibody Technology (other than Core Antibody Technology) or XenoMouse Methods (other than Core XenoMouse Technology) (in each case to the extent included in this Agreement pursuant to Section 2.2.2(b), 2.2.3(b) or 5.3.1); or (d) the infringement (or alleged infringement) of other intellectual property rights of any Third Party, by the performance of (i) any work by or on behalf of ABX with respect to an Advanced ABX Antigen, Accelerated ABX Antigen, Expedited ABX Antigen, Potential Co-Development Antigen or ABX Diagnostic Antigen prior to each such Antigen being designated as a Collaboration Antigen, or (ii) any work by or on behalf of ABX under an internal program pursuant to Section 4.15 with respect to a Failed Antigen prior to such Antigen being re-designated as a Collaboration Antigen pursuant to Secti...
ABX. ABX shall indemnify and hold harmless AVI, and its directors, officers, employees and agents, from and against all Liabilities resulting from any claims, demands, actions or other proceedings by any third party arising from (i) the material breach of any representation, warranty or covenant by ABX under this Agreement, or (ii) any use by ABX of the Confidential Information of AVI; provided, however, that ABX shall not be obligated to indemnify or hold harmless AVI for such Liabilities to the extent that such Liabilities arise from the gross negligence or willful misconduct of AVI.
