By NEKTAR AL. NEKTAR AL represents and warrants that: (a) to the best of its knowledge as of the EFFECTIVE DATE it is not in breach of the CROSS-LICENSE AGREEMENT and will comply with all relevant terms thereof, (b) it will not voluntarily terminate, the CROSS-LICENSE AGREEMENT, and the sublicense granted to COMPANY under Section 2.2 will not terminate for any reason other than a termination of the CROSS-LICENSE AGREEMENT by ENZON by reason of a breach thereof by NEKTAR AL (or a termination of this AGREEMENT as described in Section 15 below); (c) it has the right to grant to COMPANY a sublicense under the ENZON PATENTS, and the PATENTS and PATENT APPLICATIONS listed in Schedule VII, to develop, make, have made, use, sell, offer for sale or import the SELECTED PRODUCT; (d) to the best of its knowledge as of the EFFECTIVE DATE there are no PATENTS or PATENT APPLICATIONS owned or CONTROLLED by NEKTAR AL or its AFFILIATES, other than the PATENTS and PATENT APPLICATIONS listed in Schedule VI, that cover the composition, manufacture, sale, import or use of SELECTED REAGENT or SELECTED PRODUCT; and (e) it will not enter into any agreement with a THIRD PARTY or any other person or entity or take other actions that would limit COMPANY’S rights or license under this AGREEMENT with respect to the PATENTS and PATENT APPLICATIONS listed in Schedule VI or the ENZON PATENTS. NEKTAR AL further represents and warrants that: (i) NEKTAR AL CONTROLS, and NEKTAR AL and/or NEKTAR AL’S AFFILIATES shall continue during the TERM to CONTROL, all intellectual property rights necessary for the purposes contemplated under this AGREEMENT (including, without limitation, the NEKTAR AL LICENSED TECHNOLOGY); and (ii) as of the date of the closing of the merger of NEKTAR AL (formerly known as Shearwater Corporation) with inhale Therapeutic Systems, Inc., all of the NEKTAR AL LICENSED TECHNOLOGY that existed on the date of such closing remained and remains CONTROLLED by NEKTAR AL. Moreover, if, during the TERM, NEKTAR AL assigns to an AFFILIATE any of the NEKTAR AL LICENSED TECHNOLOGY that is subject to the license grant provided for in Section 2.1 of this AGREEMENT, then COMPANY’S license under such NEKTAR AL LICENSED TECHNOLOGY shall follow such assignment and COMPANY’S license under such NEKTAR AL LICENSED TECHNOLOGY will not, as a result of such assignment, be diminished or impaired.
By NEKTAR AL. In addition to the REAGENT WARRANTIES, NEKTAR AL represents and warrants to OSI that:
2.2.1. As of the EFFECTIVE DATE, NEKTAR AL is not aware of any existing and pending THIRD PARTY CLAIMS alleging that the practice of the inventions described in the NEKTAR AL PATENT RIGHTS would infringe the PATENTS or misappropriate the trade secrets of a THIRD PARTY; or
2.2.2. NEKTAR AL has made or will make available to OSI all material technical information in its possession of which it is aware that pertains to the development or manufacture of the PRODUCT, and substantially useful or necessary to enable OSI to exploit the LICENSED TECHNOLOGY under this AGREEMENT; provided however that NEKTAR AL’s failure to meet the obligation set forth in this Section 2.2.2 shall not be deemed a breach of this AGREEMENT unless OSI can prove such failure was due to bad faith on the part of NEKTAR AL.
By NEKTAR AL. NEKTAR AL shall defend, indemnify and hold OSI, OSI’s AFFILIATES, and OSI’s directors, officers, employees and agents harmless from and against all claims, actions, losses, liabilities, damages and expenses (including reasonable attorney’s fees and costs) resulting from all claims, demands, actions and other proceedings by any THIRD PARTY to the extent arising from (a) the material breach of any representation, warranty or covenant of NEKTAR AL under this AGREEMENT or (b) the gross negligence, recklessness or willful misconduct of NEKTAR AL in the performance of its obligations and its permitted activities under this AGREEMENT, except in each case to the extent that OSI has an obligation of indemnity with respect thereto pursuant to Section 10.1.2.
By NEKTAR AL. NEKTAR AL shall defend, indemnify and hold XXXXXX, XXXXXX’X SUBLICENSEES and their respective shareholders, directors, officers, employees and agents (each, a “XXXXXX INDEMNITEE”) harmless from and against all losses, liabilities, damages, costs and expenses (including reasonable attorney’s fees and costs of investigation and litigation, regardless of outcome) resulting from all claims, demands, actions and other proceedings by or on behalf of any THIRD PARTY (including any governmental authority) (collectively, “CLAIMS”) to the extent arising from: (a) the breach of any representation, warranty, covenant or material obligation of NEKTAR AL under this AGREEMENT; [***].
By NEKTAR AL. NEKTAR AL shall defend, indemnify and hold COMPANY, COMPANY’s SUBLICENSEES and their respective shareholders, directors, officers, employees and agents (each, a “COMPANY INDEMNITEE”) harmless from and against all losses, liabilities, damages, costs and expenses (including reasonable attorney’s fees and costs of investigation and litigation, regardless of outcome) resulting from all claims, demands, actions and other proceedings by or on behalf of any THIRD PARTY (including any governmental authority) (collectively, “CLAIMS”) to the extent arising from: (a) the breach of any representation, warranty (except for those under Section 5.2), covenant or material obligation of NEKTAR AL under this AGREEMENT; or (b) the gross negligence, recklessness or willful misconduct of NEKTAR AL in the performance of its obligations under this AGREEMENT, except in each case to the extent such claim, demand, action or proceeding arises from COMPANY’s material breach of this AGREEMENT or the gross negligence, recklessness or willful misconduct of a COMPANY INDEMNITEE.
By NEKTAR AL. Upon thirty (30) days prior written notice, NEKTAR AL shall have the right once in each twelve (12) months period to have an independent certified public accounting firm of recognized national standing in the United States, selected by NEKTAR AL and reasonably acceptable to COMPANY, at NEKTAR AL’S expense, to have access during normal business hours to such of the records of COMPANY, under conditions of confidentiality reasonably acceptable to COMPANY, as may be reasonably necessary to verify (i) COMPANY’S compliance with the purchase requirements of Section 3.1, and (ii) the accuracy of any amounts reported, actually paid or payable under this AGREEMENT for any year ending not more than twenty-four (24) months prior to the date of such request. The accounting firm shall disclose to each PARTY whether the NET SALES are correct or incorrect and the specific details concerning any discrepancies. No other information shall be provided to NEKTAR AL. If such accounting firm concludes that additional royalty amounts were owed to NEKTAR AL during such period, COMPANY shall pay such additional royalties (including interest on such additional royalties, from the date such royalty amounts were payable, at the prime lending rate published on the first business day of each month from such date in The Wall Street Journal, Western Edition, plus two percent (2%) per annum, compounded monthly, or the maximum rate allowed under LAW, whichever is less) within thirty (30) days of the date the PARTIES receive such accounting firm’s written report so concluding. The fees charged by such accounting firm shall be paid by NEKTAR AL; provided however, that if the audit discloses that the royalties payable by COMPANY for the audited period are more than one hundred five percent (105%) of the royalties actually paid for such period, then COMPANY shall pay the reasonable fees and expenses charged by such accounting firm. Such auditors shall not be paid on a contingency basis. Any information received by NEKTAR AL pursuant to this Section 7.2.1 shall be deemed to be CONFIDENTIAL INFORMATION of COMPANY. Upon the expiration of twenty-four (24) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon NEKTAR AL and COMPANY and its SUBLICENSEES.
By NEKTAR AL. 10.3.1 NEKTAR AL represents and warrants to the COMPANY that, as of the EFFECTIVE DATE, to NEKTAR AL’S and its AFFILIATES’ actual knowledge and without any duty of inquiry or investigation: (a) Except as provided for in SCHEDULE VII, there are not any existing claims or litigation brought by a THIRD PARTY under any THIRD PARTY patent, trade secret or other THIRD PARTY proprietary right in respect of NEKTAR AL’S exploitation of NEKTAR AL LICENSED TECHNOLOGY, which claims or litigation could reasonably be expected to affect COMPANY’S practice of the rights licensed under Section 2.1 of this AGREEMENT; (b) There is not any basis upon which the COMPANY’S practice of rights licensed under Section 2.1 of this AGREEMENT (i.e., the use of SELECTED REAGENT by COMPANY to make the SELECTED PRODUCT by means of covalent chemical attachment) would infringe on the rights of THIRD PARTIES; (c) There are not any licenses or restrictions other than those included herein on NEKTAR AL’S or its licensees’ (other than the COMPANY’S) ability to practice the NEKTAR AL LICENSED TECHNOLOGY; and (d) There are not any licenses or restrictions other than those included herein on COMPANY’S ability to practice the NEKTAR AL LICENSED TECHNOLOGY, excluding the NEKTAR AL MANUFACTURING TECHNOLOGY.
By NEKTAR AL. NEKTAR AL shall defend, indemnify and hold COMPANY, its AFFILIATES and its SUBLICENSEES, and their respective shareholders, directors, officers, employees and agents (each, a “COMPANY INDEMNITEE”) harmless from and against all losses, liabilities, damages, costs and expenses (including reasonable attorney’s fees and costs of investigation and litigation, regardless of outcome) resulting from all claims, demands, actions and other proceedings by or on behalf of any THIRD PARTY (including any governmental authority) (collectively, “CLAIMS”) to the extent arising from: (i) the breach of any representation, warranty, covenant or obligation of NEKTAR AL under this AGREEMENT; or (ii) the negligence, recklessness or willful misconduct of NEKTAR AL or its sublicensees or any of their respective THIRD PARTY agents or subcontractors in the performance of its or their obligations and permitted activities under this AGREEMENT.
By NEKTAR AL. 9.2.1 As of the effective date of the license of Section 2.1, NEKTAR AL shall represent and warrant to COMPANY that, to the knowledge of NEKTAR AL, NEKTAR AL has not previously assigned, transferred, conveyed or otherwise encumbered its right, title and interest in the NEKTAR AL PATENT RIGHTS, or the NEKTAR AL KNOW-HOW, with respect to SELECTED PRODUCT in a manner that conflicts and/or is inconsistent with the rights granted to COMPANY under this AGREEMENT.
9.2.2 NEKTAR AL agrees that if during the TERM, NEKTAR AL assigns to an AFFILIATE any of the NEKTAR AL LICENSED TECHNOLOGY that is subject to the license grant provided for in Section 2.1 or Section 3.4 of this AGREEMENT, then COMPANY's license under such NEKTAR AL LICENSED TECHNOLOGY shall follow such assignment and COMPANY's license under such NEKTAR AL LICENSED TECHNOLOGY will not, as a result of such assignment, be diminished or impaired.
9.2.3 As of the effective date of the license of Section 2.1, NEKTAR AL shall represent and warrant to COMPANY that to the knowledge of NEKTAR AL except for PATENTS AND PATENT APPLICATIONS licensed to COMPANY under Section 2.1, AFFILIATES of NEKTAR AL do not own any PATENTS or PATENT APPLICATIONS that if owned by NEKTAR AL as of such effective date would be NEKTAR AL PATENT RIGHTS licensed to COMPANY under 2.1 of the AGREEMENT.
By NEKTAR AL. NEKTAR AL shall defend, indemnify and hold COMPANY, COMPANY's AFFILIATES, COMPANY SUBLICENSEES and their respective shareholders, directors, officers, employees and agents (each, a "COMPANY INDEMNITEE") harmless from and against all losses, liabilities, damages, costs and expenses (including reasonable attorney's fees and costs of investigation and litigation, regardless of outcome) resulting from all claims, demands, actions and other proceedings by or on behalf of any THIRD PARTY (including any governmental authority) (collectively, "CLAIMS") to the extent arising from: (a) the breach of any representation, warranty (other than any warranty that SELECTED REAGENT conforms to SPECIFICATIONS), covenant or material obligation of NEKTAR AL under this AGREEMENT; or (b) the gross negligence, recklessness or willful misconduct of NEKTAR AL in the performance of its obligations under this AGREEMENT, or (c) any CLAIMS brought by an employee or contractor of NEKTAR AL, for personal injury or death or damage to property caused directly and proximately by such employee's or contractor's performance of the manufacture of SELECTED REAGENT for NEKTAR AL under this AGREEMENT, or (d) any CLAIMS brought by a THIRD PARTY for personal injury or death or damage to property, which personal injury, death or damage occurs as a direct and proximate result of an accident occurring at the facility of NEKTAR AL where the manufacture of SELECTED REAGENT is carried out under this AGREEMENT, except in each case (i) to the extent such claim, demand, action or proceeding arises from COMPANY's material breach of this AGREEMENT or a breach of any representation or warranty of COMPANY under this AGREEMENT, or the gross negligence, recklessness or willful misconduct of a COMPANY INDEMNITEE; or (ii) to the extent that COMPANY is obligated to indemnify NEKTAR AL under Section 10.1.2.
