By PSC. PSC may, solely upon receiving Sorrento’s prior written consent, and at PSC’s sole expense, enforce the Licensed Patents outside of the Field (a “PSC Enforcement Action”). PSC will have the right to control any PSC Enforcement Action, provided that PSC will give Sorrento an opportunity to review and comment on the nature and strategy of the PSC Enforcement Action and consider in good faith any comments from Sorrento regarding the same. In addition, PSC shall keep Sorrento reasonably informed of the progress of any PSC Enforcement Action, and Sorrento shall have the right to participate in any PSC Enforcement Action with counsel of their own choice at their own expense. Any recovery received as a result of any PSC Enforcement Action shall be used first to reimburse the Parties for the costs and expenses (including attorneys’ and professional fees) incurred in connection with such PSC Enforcement Action (and not previously reimbursed). If such recovery is insufficient to cover all such costs and expenses of both Parties, it shall be shared in proportion to the total of such costs and expenses incurred by each Party. If, after such reimbursement, any funds remain from such recovery, then such remainder amount of the recovery shall be retained by PSC. For the avoidance of doubt, PSC may not threaten or bring any action to enforce the Licensed Patents without first obtaining Sorrento’s written consent to do so. Notwithstanding the foregoing, in no event shall PSC: (i) admit the invalidity of, or after exercising its right to bring and control an action under this Section 5.3(b), fail to defend the validity of, any Licensed Patents without Sorrento’s prior written consent; or (ii) settle any PSC Enforcement Action under this Section 5.3(b) without the prior written consent of Sorrento, which consent, in each instance, may be withheld in Sorrento’s sole discretion.
By PSC. If Sorrento commits a material breach of its payment obligations to PSC under this Agreement, then Sorrento shall have thirty (30) days after receipt of a written notice of the payment breach to cure that breach; provided, however, regarding the payment of the Upfront Payment per Section 4.1, there is no such cure right and this Agreement terminates automatically if the Upfront Payment is not paid when due. If Sorrento commits a material breach of any non-payment obligation, or if Sorrento fails to use Commercially Reasonable Efforts to develop, make, market, and sell a Licensed Product, then PSC may provide to Sorrento a written notice specifying the nature of the breach or failure, requiring Sorrento to make good or otherwise cure such breach or failure, and stating its intention to terminate this Agreement if such breach or failure is not cured. If such (i) breach for a non-payment obligation (excluding a failure to use Commercially Reasonable Efforts) is not cured within ninety (90) days after the receipt of such breach notice, or (ii) if such failure to use Commercially Reasonable Efforts is not remedied within six (6) months after the receipt of such failure notice, then, subject to Section 6.2(a)(iii), PSC shall be entitled, without prejudice to any of its other rights conferred under this Agreement, and in addition to any other remedies available to it by law or in equity, to terminate this Agreement by written notice to Sorrento. For the avoidance of doubt, PSC shall not be permitted to terminate or rescind this Agreement as a result of any circumstances that are not expressly addressed in this Section 6.2(a)(ii) or Section 6.2(c) below. For clarity, if PSC terminates this Agreement for failure of Sorrento to use Commercially Reasonable Efforts, Sorrento shall not have any liability for any damages from such breach.
By PSC. PSC further represents, warrants and covenants to Sorrento that, subject to the Exceptions stated in Exhibit D attached hereto:
(a) The Licensed Intellectual Property Rights are Controlled by PSC, are free and clear of all liens, claims, security interests, and encumbrances of any kind, and have not and will not be licensed or subject to any agreements, understandings, contracts, grants, covenants, or options that could conflict with the rights and licenses granted to Sorrento hereunder, except as disclosed as licensed to Calidi Biotherapeutics.
By PSC. PSC hereby agrees, at its sole cost and expense, to defend, hold harmless and indemnify (collectively, “Indemnify”) Sorrento and its Affiliates and their respective directors, officers, employees, and Sublicensees (the “Sorrento Indemnitees”) from and against any and all liabilities, damages, penalties, fines, costs and expenses (including, reasonable attorneys’ fees and other expenses of litigation) (collectively, “Liabilities”) resulting from suits, claims, actions and demands, in each case brought by a Third Party (each, a “Third-Party Claim”) against any Sorrento Indemnitee and arising from or occurring as a result of: (a) any material breach of any of PSC’s obligations, representations, warranties or covenants under this Agreement; and (b) the gross negligence or willful misconduct of a PSC Indemnitee under this Agreement. PSC’s obligation to Indemnify the Sorrento Indemnitees pursuant to this Section 8.1 shall not apply to the extent that any such Liabilities are the result of a material breach by Sorrento of its obligations, representations, warranties or covenants under this Agreement or Sorrento’s gross negligence or willful misconduct.
By PSC. PSC shall defend Safeskin from any third-party claims brought against Safeskin alleging that (i) the Developed Software infringes a third person's copyright or trade secret enforceable where the Developed Software was installed by PSC or was, to the knowledge of PSC as determined at the time of installation, to be used by Safeskin, or (ii) the method chosen and used by PSC in its sole discretion to implement the specifications for the Developed Software infringes a third party's patent issued prior to the date the Developed Software was delivered to Safeskin and enforceable where the Developed Software was installed by PSC or was, to the knowledge of PSC as determined at the time of installation, to be used by Safeskin. PSC shall pay any judgments finally awarded by a court of competent jurisdiction and any settlements to which PSC agrees in writing.
By PSC. The PSC agrees to indemnify and hold harmless Foreland from any and all claims, damages, liabilities, costs, and expenses (including settlement costs and any legal, accounting, or other expenses for investigating or defending any actions or threatened actions) reasonably incurred by the indemnified party in connection with each and all of the following:
By PSC. The PSC agrees to indemnify and hold harmless Foreland from any and all claims, damages, liabilities, costs, and expenses (including settlement costs and any legal, accounting, or other expenses for investigating or defending any actions or threatened actions) reasonably incurred by the indemnified party in connection with each and all of the following:
(a) any claims against, or liabilities or obligations of, PSC or against the Business or Business Assets not specifically assumed by Foreland pursuant to this Agreement which, in the aggregate, exceed $100,000; and
(b) any and all claims, damages, losses, liabilities, costs, and expenses including settlement costs and any legal, accounting, or other expenses for investigating or defending any actions or threatened actions) reasonably incurred by Foreland in connection with any warranty claim or product liability claim relating to (i) products manufactured or sold by PSC prior to the Closing Date, or (ii) PSC's business or operations prior to the Closing Date.
By PSC. PSC agrees to indemnify, defend and hold harmless the members of the SBC Group from any and all claims, actions, damages, losses, liabilities, costs and expenses, including reasonable attorneys' fees and expenses, arising out of any of the following: (i) any failure of PSC to observe or perform any duties or obligations to be observed or performed by PSC under any PSC Market Data Services Agreement, provided that with respect to any SBC Warburg Market Data Services Agreement assigned to PSC by an SBC Warburg Division Member, this indemnity shall apply only with respect to such failures by PSC (A) occurring on or after the effective date of assignment of such SBC Warburg Market Data Services Agreement, and (B) relating to those portions of the SBC Warburg Market Data Services Agreement assigned to PSC; (ii) any failure by PSC to obtain UBS AG's approval as required under Section 3.6 above prior to making any change to a PSC Market Data Services Agreement; and (iii) any failure by PSC to obtain UBS AG's approval as required under Section 3.7 above prior to entering into a new PSC Market Data Services Agreement.
By PSC. PSC represents and warrants that:
(1) as of the Effective Date, it is a corporation validly existing and in good standing under the laws of Delaware;
(2) as of the Effective Date, it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement;
(3) the execution, delivery and performance of this Agreement has been duly authorized by PSC as of the Effective Date;
(4) as of the Effective Date, no approval, authorization or consent of any governmental or regulatory authority is required to be obtained or made by it in order for it to enter into and perform its obligations under this Agreement;
(5) in connection with providing the Services, it shall be responsible for its compliance with all applicable Federal, state and local laws and regulations and has obtained all applicable permits, rights and licenses (including all rights and licenses which are necessary to use the Systems);
(6) it shall provide the Services in such a manner so as to [**];
(7) the PSC Proprietary Software does not and will not, and the provision of the Services and the Developed Software (except for any code or materials provided or created by Xxxxx, its subcontractors or agents) will not, infringe upon the proprietary rights of any third party;
(8) it is either the owner or authorized by the owner of the PSC Machines to use such PSC Machines in accordance with the terms of this Agreement; and
(9) the Developed Software shall perform in accordance with the applicable specifications for [**] from the date such Developed Software is placed in production.
By PSC. PSC shall indemnify Xxxxx from, and defend Xxxxx against, any liability or expenses arising out of or relating to:
(1) any claim by a third party that (a) the Services, (b) the PSC Proprietary Software or (c) the PSC Developed Software or any code or materials provided or created by PSC, PSC Project Personnel or PSC Company Contractors that is contained in the Xxxxx Software infringe upon the proprietary rights of any third party (except as may have been caused by (i) a modification by Xxxxx’x employees, subcontractors or agents (other than PSC) which was not at the direction of PSC or in accordance with specifications provided by PSC or (ii) the combination, operation or use by Xxxxx or its employees or subcontractors or agents with devices, data or programs furnished by Xxxxx, its subcontractors or agents (other than PSC) which was not , if such modification, combination, operation or use was not at the direction of PSC or in accordance with specifications provided by PSC and the infringement would not have occurred but for such modification, combination, operation or use);
(2) any claim by a third party in respect of services or systems provided by PSC to a third party (other than a party receiving the Services pursuant to this Agreement);
(3) a failure by PSC to renew, terminate or cancel Xxxxx’x agreements in respect of the Third Party Agreements in accordance with Article 7;
(4) any amounts including taxes, interest and penalties assessed against Xxxxx which are obligations of PSC pursuant to Article 23;
(5) the inaccuracy or untruthfulness of any representation or warranty made by PSC pursuant to Sections [**] and [**];
(6) claims arising out of PSC’s breach or violation of PSC’s subcontracting arrangements;
(7) a violation of Federal, state or other laws or regulations for the protection of persons or members of a protected class or category of persons by PSC or its employees, subcontractors or agents,
(8) sexual discrimination or harassment by PSC, PSC Project Personnel or PSC Company Contractors,
(9) work-related injury (except as may be covered by Xxxxx’x workers’ compensation) or death caused by PSC, its employees, subcontractors or agents,
(10) vested employee benefits of any kind expressly assumed by PSC and
(11) any representations, oral or written, made by PSC to Xxxxx employees or the Transitioned Employees hired by PSC with regard to the terms of their employment by PSC;
(12) tangible personal or real property damage resulting solely from...
