Common use of Representations and Warranties by Quark Clause in Contracts

Representations and Warranties by Quark. Quark represents and warrants to Novartis as of the Execution Date that: (a) Exhibit A sets forth a complete and accurate list of (i) all Quark Patents in existence as of the Execution Date, indicating the owner, Quark and/or co-owner(s) thereof if any such Quark Patent is not solely owned by Quark and (ii) all agreements that are in force as of the Execution Date under which any of the Quark Patents are licensed to Quark; (b) Quark is the sole and exclusive owner, or exclusive licensee of all of the Quark Patents (other than the Patent Rights licensed under the Silence License and Alnylam License) existing on the Execution Date free from Encumbrances and is listed in the records of the appropriate governmental agencies as the sole and exclusive owner of record of each registration, grant and application included in the Quark Patents that is owned by Quark; (c) all of its employees, officers, and consultants involved or to be involved in the research or Development of the Quark Compound or Product have executed agreements or have existing obligations under applicable laws requiring assignment to Quark of all inventions made during the course of and as the result of their association with Quark and obligating the individual to maintain as confidential Quark’s Confidential Information as well as confidential information of other parties (including Novartis and its Affiliates) which such individual may receive, to the extent required to support Quark’s obligations under this Agreement; (d) Quark has the right to grant to Novartis the licenses under the Quark Patents and Quark Know-How that it purports to grant hereunder; (e) Quark has the right to use and disclose and to enable Novartis to use and disclose (in each case under appropriate conditions of confidentiality) the Quark Know-How within the scope of the license(s) granted to Novartis hereunder, free from Encumbrances; (f) [*], there are no claims, challenges, oppositions, interference or other proceedings pending or threatened against the Quark Patents, and Quark has filed and prosecuted patent applications within the Quark Patents in good faith and complied with all duties of disclosure with respect thereto; (g) [*], there are no claims, challenges or other proceedings pending or threatened against any of the Quark Know-How; (h) [*], Quark has not committed any act, or omitted to commit any act, that is reasonably likely to cause the Quark Patents to expire prematurely or be declared invalid or unenforceable; (i) all application, registration, maintenance and renewal fees in respect of the Quark Patents as of the Execution Date have been paid (to the extent due) and all necessary documents and certificates have been filed with the relevant agencies for the purpose of maintaining the Quark Patents; (j) Quark has not granted to any Third Party, including any academic organization or agency, any rights to Commercialize the Quark Compounds or Product and has disclosed any agreement with a Third Party pursuant to which such Third Party has been granted rights to research or Develop the Quark Compounds or Product ; (k) As of the License Effective Date, Quark is not aware, after reasonable inquiry, of any Third Party rights or technology not included in the Quark Technology that is necessary and/or used for the Development of the Quark Compounds and/or Products as they exist as of the License Effective Date; (l) [*] the research, Development, registration, manufacture, use or Commercialization of the Quark Compounds or Product as they exist as of the License Effective Date do not infringe the Patent rights of any Third Party and the research, Development, use and manufacture of the Quark Compounds and Product has been conducted by Quark without infringing the Patent Rights or misappropriating the Know-How of any Third Party, and Quark has not received any written notice alleging such infringement or misappropriation; (m) Quark has not initiated or been involved in any proceedings or claims in which it alleges that any Third Party is or was infringing or misappropriating any Quark Technology, nor have any such proceedings been threatened by Quark, nor does Quark know of any valid basis for any such proceedings; (n) no officer or employee of Quark is subject to any agreement with any other Third Party which requires such officer or employee to assign any interest in any Quark Technology relating to the Quark Compounds or Product to any Third Party; (o) Quark has taken all reasonable precautions to preserve the confidentiality of the Quark Know-How, to the extent such Quark Know-How is not generally known in the relevant technical field; (p) Quark has not entered into a government funding relationship that would result in rights to any Quark Compounds or Product residing in the US Government, National Institutes of Health, National Institute for Drug Abuse or other agency, and the licenses granted hereunder are not subject to overriding obligations to the US Government as set forth in Public Law 96-517 (35 U.S.C. 200-204), as amended, or any similar obligations under the laws of any other country; (q) Quark has not granted any Third Party rights that would otherwise interfere or be inconsistent with Novartis’ rights hereunder in a material manner, and there are no agreements or arrangements to which Quark or any of its Affiliates is a party relating to the Products, Quark Compounds, Quark Patents, or Quark Know-How that limit or are reasonably likely to limit the rights granted to Novartis under this Agreement or that restrict or are reasonably likely to result in a restriction on Novartis’ ability to Develop, manufacture, register, use or Commercialize the Quark Compounds and the Products in the Territory; (r) Quark has provided Novartis with a redacted copy of each agreement under which it obtains rights to any of the Quark Patents, which copy sets forth all of Quark’s rights and obligations with regard to such agreement; (s) [*], neither Quark nor any of its Affiliates has committed any act which amounts to a material breach of any of Quark’s obligations under any agreement under which it obtains rights to any of the Quark Technology; (t) neither Quark nor, to the knowledge of Quark, any employee, agent or subcontractor of Quark involved in the research and Development of the Quark Compounds or the Products has been debarred under Subsection (a) or (b) of Section 306 of the Federal Food, Drug and Cosmetic Act (21 U.S.C. 335a); and (u) Notwithstanding anything to the contrary contained in this Agreement, Quark has [*] and [*] that would be [*] to [*] in connection with this Agreement or the transactions contemplated herein. [*], [*] provided by Quark to Novartis regarding the Quark Compounds and Product as part of Novartis’ due diligence under the Option Agreement are true and complete in all material respects.

Representations and Warranties by Quark. Quark represents and warrants to Novartis as of the Execution Option Agreement Effective Date that: (a) Exhibit A sets forth a complete Quark has the right to grant to Novartis the rights that Quark purports to grant Novartis hereunder, including the right to grant exclusive licenses to the Quark Compounds and accurate list of (i) all Quark Patents in existence as of the Execution Date, indicating the owner, Quark and/or co-owner(s) thereof if any such Quark Patent is not solely owned by Quark and (ii) all agreements that are in force as of the Execution Date Product under which any of the Quark Patents are licensed to Quarkand Quark Know-How; (b) Quark is the sole and exclusive ownerhas not granted to any Third Party, including any academic organization or exclusive licensee of all of agency, any rights to the Quark Patents (other than the Patent Rights licensed under the Silence License and Alnylam License) existing on the Execution Date free from Encumbrances and is listed in the records of the appropriate governmental agencies as the sole and exclusive owner of record of each registration, grant and application included in the Quark Patents that is owned by QuarkCompounds or Product; (c) all of its employees, officers, and consultants involved or to be involved in the research or Development of the Quark Compound or Product have executed agreements or have existing obligations under applicable laws requiring assignment to Quark of all inventions made during the course of and as the result of their association with Quark and obligating the individual to maintain as confidential Quark’s Confidential Information as well as confidential information of other parties (including Novartis and its Affiliates) which such individual may receive, to the extent required to support Quark’s obligations under this Agreement; (d) Quark has the right to grant to Novartis the licenses under the Quark Patents and Quark Know-How that it purports to grant hereunder; (e) Quark has the right to use and disclose and to enable Novartis to use and disclose (in each case under appropriate conditions of confidentiality) the Quark Know-How within the scope of the license(s) granted to Novartis hereunder, free from Encumbrances; (f) [*], there are no claims, challenges, oppositions, interference or other proceedings pending or threatened against the Quark Patents, and Quark has filed and prosecuted patent applications within the Quark Patents in good faith and complied with all duties of disclosure with respect thereto; (g) [*], there are no claims, challenges or other proceedings pending or threatened against any of the Quark Know-How; (h) [*], Quark has not committed any act, or omitted to commit any act, that is reasonably likely to cause the Quark Patents to expire prematurely or be declared invalid or unenforceable; (i) all application, registration, maintenance and renewal fees in respect of the Quark Patents as of the Execution Date have been paid (to the extent due) and all necessary documents and certificates have been filed with the relevant agencies for the purpose of maintaining the Quark Patents; (j) Quark has not granted to any Third Party, including any academic organization or agency, any rights to Commercialize the Quark Compounds or Product and has disclosed any agreement with a Third Party pursuant to which such Third Party has been granted rights to research or Develop the Quark Compounds or Product ; (k) As of the License Effective Date, Quark is not aware, after reasonable inquiry, of any Third Party rights or technology not included in the Quark Technology that is necessary and/or used for the Development of the Quark Compounds and/or Products as they exist as of the License Effective Date; (l) [*] the research, Development, registration, manufacture, use or Commercialization of the Quark Compounds or Product as they exist as of the License Effective Date do not infringe the Patent rights of any Third Party and the research, Development, use and manufacture of the Quark Compounds and Product has been conducted by Quark without infringing the Patent Rights or misappropriating the Know-How of any Third Party, and Quark has not received any written notice alleging such infringement or misappropriation; (m) Quark has not initiated or been involved in any proceedings or claims in which it alleges that any Third Party is or was infringing or misappropriating any Quark Technology, nor have any such proceedings been threatened by Quark, nor does Quark know of any valid basis for any such proceedings; (n) no officer or employee of Quark is subject to any agreement with any other Third Party which requires such officer or employee to assign any interest in any Quark Technology relating to the Quark Compounds or Product to any Third Party; (o) Quark has taken all reasonable precautions to preserve the confidentiality of the Quark Know-How, to the extent such Quark Know-How is not generally known in the relevant technical field; (p) Quark has not entered into a government funding relationship that would result in rights to any Quark Compounds or Product residing in the US Government, National Institutes of Health, National Institute for Drug Abuse or other agency, and the licenses granted hereunder are not subject to overriding obligations to the US Government as set forth in Public Law 96-517 (35 U.S.C. 200-204), as amended, or any similar obligations under the laws of any other country; (q) Quark has not granted any Third Party rights that would otherwise interfere or be inconsistent with Novartis’ rights hereunder in a material manner, and there are no license or option agreements or other arrangements to which Quark or any of its Affiliates is a party relating to the ProductsProduct, Quark Compounds, Quark Patents, or Quark Know-How or otherwise that limit or are reasonably likely to would limit the rights granted to Novartis under this Option Agreement or that restrict or are reasonably likely to will result in a restriction on Novartis’ ability to research, Develop, manufacture, register, use or Commercialize the Quark Compounds and the Products Product in the Territory; (re) Quark has provided Novartis with a redacted copy of each agreement under which it obtains rights to any [*] the research, Development, use and manufacture of the Quark Patents, which copy sets forth all Compounds and Products has been conducted by Quark without infringing or misappropriating the intellectual property rights of Quark’s rights and obligations with regard to such agreementany Third Party; (sf) [*], ] neither Quark nor any of its Affiliates Affiliate has committed any act which amounts to a material breach of any of Quark’s obligations under any agreement under which it obtains rights to any of the Quark Technology; (ti) neither Quark nor, to the knowledge of Quark, nor any employee, agent or subcontractor of Quark involved or to be involved in the research and or Development of the Quark Compounds or the Products Product has been debarred under Subsection (a) or (b) of Section 306 of the Federal Food, Drug and Cosmetic Act (21 U.S.C. 335a); and(ii) no Person who is debarred under Subsection (a) or (b) of Section 306 of said Act will be employed by Quark in the performance of any activities hereunder; and (iii) no Person on any of the FDA Clinical Investigator Enforcement Lists (including, but not limited to, the (1) Disqualified/Totally Restricted List, (2) Restricted List and (3) Adequate Assurances List) will participate in the performance of any activities hereunder. (uh) Notwithstanding anything to the contrary contained in this Option Agreement, Quark has [*] and [*] that would be [*] to [*] in connection with this Agreement or the transactions contemplated hereinOption Agreement. [*], the [*] provided by Quark to Novartis regarding the Quark Compounds and Product as part of Novartis’ due diligence under the Option Agreement Products are true and complete in all material respects.