Common use of By ENTREMED Clause in Contracts

By ENTREMED. ENTREMED represents and warrants as follows: (a) that ENTREMED has not received any notice of infringement of THIRD PARTY patents or notice of interfering subject matter; that, without having made any special investigation, ENTREMED is not aware of any THIRD PARTY patents or patent applications that contain any interfering subject matter, or any issued THIRD PARTY patents that would be infringed by the making, using, selling, offering for sale, or importing by CELGENE of PRODUCTS covered by the ENTREMED EXISTING PATENT RIGHTS or the ENTREMED EXISTING TECHNOLOGY RIGHTS in any country in the TERRITORY, or by the exercise by CELGENE of any right granted to it under this Agreement, aside from those set forth in Appendix D; (b) that the PATENT RIGHTS set forth in Appendix A and the TECHNOLOGY RIGHTS transferred to CELGENE under this Agreement, constitute the entirety of ENTREMED EXISTING PATENT RIGHTS and ENTREMED EXISTING TECHNOLOGY RIGHTS; (c) that ENTREMED presently has no rights in PRODUCTS, nor any option in or expectation of any rights in PRODUCTS, apart from those identified in this Agreement and set forth in the agreements listed in Appendix B, and that ENTREMED is not in material breach or default of any of the agreements set forth in Appendix B, and that if ENTREMED acquires any such rights after the EFFECTIVE DATE, the agreements setting forth those rights, including all licenses and assignments for ENTREMED DEVELOPED PATENT RIGHTS and ENTREMED DEVELOPED TECHNOLOGY RIGHTS, shall be redacted to the extent they do not relate to CELGENE's rights under this Agreement, and attached hereto as independent Exhibits and incorporated herein; (d) that, with regard to PRODUCTS, ENTREMED has no applications filed or pending with the FDA as of the EFFECTIVE DATE, including without limitation any Investigational New Drug or Orphan Drug Status applications, apart from those set forth in Appendix C; (e) that ENTREMED will comply with all obligations and duties with regard to PRODUCTS under the CMCC AGREEMENT and, unless and until it is assigned to CELGENE pursuant to Section 2.5 of this Agreement, the NCI AGREEMENT, including, without limitation, any notification provisions necessary to maintain in effect this Agreement or preserve CELGENE's exclusive or non-exclusive rights under this Agreement, including without limitation the preservation of CELGENE's rights hereunder in the event that ENTREMED shall breach or default on its obligations under the CMCC AGREEMENT or the NCI AGREEMENT; (f) that ENTREMED understands and agrees that it has not retained any rights under the ENTREMED INTELLECTUAL PROPERTY to PRODUCTS in the TERRITORY, and that the licenses and assignments granted in Sections 2.1, 2.2, 2.4, and 2.5 of this Agreement are exclusive of any continuing right of ENTREMED, except as otherwise provided herein; and (g) that ENTREMED will not collaborate, negotiate, or deal with THIRD PARTIES with respect to PRODUCTS, except as expressly provided herein.

By ENTREMED. ENTREMED represents and warrants as follows: (a) that ENTREMED has not received any notice of infringement of THIRD PARTY patents or notice of interfering subject matter; that, without having made any special investigation, ENTREMED is not aware of any THIRD PARTY patents or patent applications that contain any interfering subject matter, or any issued THIRD PARTY patents that would be infringed by the making, using, selling, offering for sale, or importing by CELGENE of PRODUCTS covered by the ENTREMED EXISTING PATENT RIGHTS or the ENTREMED EXISTING TECHNOLOGY RIGHTS in any country in the TERRITORY, or by the exercise by CELGENE of any right granted to it under this Agreement, aside from those set forth in Appendix D; (b) that the PATENT RIGHTS set forth in Appendix A and the TECHNOLOGY RIGHTS transferred to CELGENE under this Agreement, constitute the entirety of ENTREMED EXISTING PATENT RIGHTS and ENTREMED EXISTING TECHNOLOGY RIGHTS; (c) that ENTREMED presently has no rights in PRODUCTS, nor any option in or expectation of any rights in PRODUCTS, apart from those identified in this Agreement and set forth in the agreements listed in Appendix B, and that ENTREMED is not in material breach or default of any of the agreements set forth in Appendix B, and that if ENTREMED acquires any such rights after the EFFECTIVE DATE, the agreements setting forth those rights, including all licenses and assignments for ENTREMED DEVELOPED PATENT RIGHTS and ENTREMED DEVELOPED TECHNOLOGY RIGHTS, shall be redacted to the extent they do not relate to CELGENE's rights under this Agreement, and attached hereto as independent Exhibits and incorporated herein; (d) that, with regard to PRODUCTS, ENTREMED has no applications filed or pending with the FDA as of the EFFECTIVE DATE, including without limitation any Investigational New Drug or Orphan Drug Status applications, apart from those set forth in Appendix C; (e) that ENTREMED will comply with all obligations and duties with regard to PRODUCTS under the CMCC AGREEMENT and, unless and until it is assigned to CELGENE pursuant to Section 2.5 of this Agreement, the NCI AGREEMENT, including, without limitation, any notification provisions necessary to maintain in effect this Agreement or preserve CELGENE's exclusive or non-exclusive rights under this Agreement, including without limitation the preservation of CELGENE's rights hereunder in the event that ENTREMED shall breach or default on its obligations under the CMCC AGREEMENT or the NCI AGREEMENT; (f) that ENTREMED understands and agrees that it has not retained any rights under the ENTREMED INTELLECTUAL PROPERTY to PRODUCTS in the TERRITORY, and that the licenses and assignments granted in Sections 2.10, 2.20, 2.40, and 2.5 0 of this Agreement are exclusive of any continuing right of ENTREMED, except as otherwise provided herein; and (g) that ENTREMED will not collaborate, negotiate, or deal with THIRD PARTIES with respect to PRODUCTS, except as expressly provided herein.

By ENTREMED. ENTREMED represents and warrants as follows: (a) that ENTREMED has not received any notice of infringement of THIRD PARTY patents or notice of interfering subject matter; that, without having made any special investigationSubject to Section 7.1(b)(2), ENTREMED is shall have the sole right, but not aware of any THIRD PARTY patents or the obligation, to prepare, file, prosecute and maintain the MIXED PATENT RIGHTS, at ENTREMED's sole expense, through patent applications that contain any interfering subject matter, or any issued THIRD PARTY patents that would be infringed counsel selected by the making, using, selling, offering for sale, or importing by CELGENE of PRODUCTS covered by the ENTREMED EXISTING PATENT RIGHTS or the ENTREMED EXISTING TECHNOLOGY RIGHTS in any country in the TERRITORY, or by the exercise by CELGENE of any right granted to it under this Agreement, aside from those set forth in Appendix D; (b) that the PATENT RIGHTS set forth in Appendix A and the TECHNOLOGY RIGHTS transferred reasonably acceptable to CELGENE under this Agreementand CMCC. ENTREMED shall ADVISE CMCC with respect to any MIXED PATENT RIGHTS, constitute and shall ADVISE BIOVENTURE with respect to any MIXED PATENT THALIDOMIDE CLAIMS. (2) Cooperation on MIXED PATENT THALIDOMIDE CLAIMS. Whichever parties are prosecuting the entirety of ENTREMED EXISTING THALIDOMIDE PATENT RIGHTS and ENTREMED EXISTING TECHNOLOGY RIGHTS; (c) that ENTREMED presently has no rights in PRODUCTS, nor any option in or expectation of any rights in PRODUCTS, apart from those identified in this Agreement and set forth in the agreements listed in Appendix B, and that ENTREMED is not in material breach or default of any of the agreements set forth in Appendix B, and that if ENTREMED acquires any such rights after the EFFECTIVE DATE, the agreements setting forth those rights, including all licenses and assignments for ENTREMED DEVELOPED MIXED PATENT RIGHTS and ENTREMED DEVELOPED TECHNOLOGY RIGHTS, respectively, shall be redacted consult with each other in good faith regarding the preparation, filing, prosecution and maintenance of all MIXED PATENT THALIDOMIDE CLAIMS, and, to the extent they do not relate necessary to CELGENE's rights under this Agreement, and attached hereto as independent Exhibits and incorporated herein; (d) that, with regard to PRODUCTS, ENTREMED has no applications filed or pending with the FDA as of the EFFECTIVE DATE, including without limitation any Investigational New Drug or Orphan Drug Status applications, apart from those set forth in Appendix C; (e) that ENTREMED will comply with all obligations and duties with regard to PRODUCTS under the CMCC AGREEMENT and, unless and until it is assigned to CELGENE pursuant to Section 2.5 of this Agreementaccomplish same, the NCI AGREEMENT, including, without limitation, any notification provisions necessary to maintain in effect this Agreement or preserve CELGENE's exclusive or non-exclusive rights under this AgreementMIXED PATENT RIGHTS, including without limitation the preservation content, timing and jurisdiction of CELGENEthe filing of -37- <PAGE> same. A copy of each document or a draft thereof pertaining to the preparation, filing, prosecution, or maintenance of each MIXED PATENT THALIDOMIDE CLAIM, including but not limited to each patent application, office action, response to office action, declaration, information disclosure statement, request for terminal disclaimer, request for patent term extension and request for reissue or reexamination of any MIXED PATENT RIGHTS, to the extent MIXED PATENT THALIDOMIDE CLAIMS are or may be affected, shall be provided to the party prosecuting the MIXED PATENT THALIDOMIDE CLAIMS as follows: documents received from any patent office and/or counsel's rights hereunder analysis thereof shall be provided promptly after receipt; and drafts of all documents to be filed in any patent office shall be provided sufficiently prior to their filing deadlines to allow for review and comment by the event party(ies) prosecuting the THALIDOMIDE PATENT RIGHTS, which comments the party(ies) prosecuting the MIXED PATENT RIGHTS shall incorporate in good faith. In order to protect its commercial interests, the party(ies) prosecuting the THALIDOMIDE PATENT RIGHTS may request that ENTREMED shall breach certain MIXED PATENT THALIDOMIDE CLAIMS be prepared, filed, prosecuted, and/or maintained, or default on its obligations under the CMCC AGREEMENT that such steps be undertaken in certain countries or the NCI AGREEMENT; (f) that ENTREMED understands and agrees that it has not retained any rights under the ENTREMED INTELLECTUAL PROPERTY to PRODUCTS regions in the TERRITORY, and patent counsel of the relevant party(ies) prosecuting the MIXED PATENT RIGHTS shall follow such request, at a cost to be shared by the parties on a basis to be determined in good faith by such parties, taking into account -38- <PAGE> the relative commercial value of such MIXED PATENT THALIDOMIDE CLAMS to each. ENTREMED or, in accordance with Section 7.1(b)(4), CMCC, shall have the right to take any action that, in its judgment, is necessary to preserve any claims of any MIXED PATENT RIGHTS that are not MIXED PATENT THALIDOMIDE CLAIMS. In the event that information relating to the prosecution of MIXED PATENT RIGHTS generally, and not solely to the MIXED PATENT THALIDOMIDE CLAIMS, is provided to the party(ies) prosecuting the THALIDOMIDE PATENT RIGHTS pursuant to this Section 7.1(b)(2), ENTREMED or CMCC, as the case may be, may require that the licenses and assignments granted in Sections 2.1party(ies) prosecuting the THALIDOMIDE PATENT RIGHTS limit disclosure of such information, 2.2as it relates to MIXED PATENT RIGHTS generally, 2.4to such party's outside counsel, and 2.5 of this Agreement are exclusive of any continuing right of ENTREMEDsuch party agrees to do so, except as unless otherwise provided herein; and (g) that ENTREMED will not collaborate, negotiate, or deal with THIRD PARTIES with respect to PRODUCTS, except as expressly provided hereinagreed by the parties.