Common use of Representations and Warranties Disclaimer Clause in Contracts

Representations and Warranties Disclaimer. 13.01 Dainippon represents and warrants that to the best of Dainippon’s knowledge as of the Effective Date: (a) Dainippon is the owner of the right, title, and interest in and to the Compounds and the Patent Rights and agrees not to transfer ownership of the Patent Rights to any third party during the period of this Agreement without the prior written consent of Sunesis. Dainippon has the sole right and authority to enter into this Agreement and grant the rights and licenses hereunder. (b) Dainippon has not previously granted, and during the period of this Agreement will not grant, any rights in the Compounds and the Patent Rights that are inconsistent with the rights and licenses granted to Sunesis herein. Dainippon shall not suffer or permit any liens or restrictions to be imposed on the Patent Rights without the prior written consent of Sunesis unless the lien holder agrees to take such intellectual property subject to Sunesis’ rights therein. (c) Schedule 1.17 accurately and completely identifies all of the patents and patent applications within the Patent Rights as of the Effective Date. To the extent that Dainippon has omitted from the Patent Rights any patent or patent application, the claims of which would dominate the practice of the Patent Rights or be [*] Certain information on this page has been redacted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. infringed by the manufacture, sale, use, importation or other exploitation of the Compounds, Dainippon shall grant Sunesis a semi-exclusive license, including the right to sublicense, under such patent to perform the rights and obligations of this Agreement. (d) There are no patent rights of any third party which may prevent or hinder any performance of obligations or exercise of rights under this Agreement, and none of the Patent Rights are invalid, unenforceable or have been misused; provided that no such warranty is made under this Section 13.01(d) with respect to patent rights disclosed to Sunesis in writing prior to the Effective Date. (e) With respect to the composition of matter, method of use and manufacture relating to the Compounds, Dainippon owns the right, title and interest in and to the Compounds and the Products. (f) As of the Effective Date, there are no existing actions, suits or proceedings, and Dainippon has not received any written claim or demand from a third party, that challenges Dainippon’s rights with respect to the Patent Rights, the Information and Know-How, the Compounds and/or the Products or Dainippon’s rights to enter into this Agreement or that asserts that development, manufacture or sale of the Compounds and/or the Products would infringe the intellectual property rights of a third party. 13.02 Except as set forth in Section 13.01, Dainippon does not warrant that the Patent Rights granted Sunesis by Dainippon hereunder are valid and do not infringe upon any patent rights or other intellectual property rights held or to be held by third parties in the Territory or that Sunesis’ performances under this Agreement are free from infringement upon any rights or licenses held or to be held by third parties in the Territory. Except pursuant to the representations and warranties set forth in Section 13.01, Dainippon is not obliged to indemnify Sunesis, its Affiliates and the Sublicensees for any cost, loss or damage caused by invalidity of the Patent Rights or infringement by the Compounds and/or the Products upon any rights or licenses held by third parties. 13.03 Each party hereto shall notify the other party promptly in the event of the receipt of notice of any action, suit or claim alleging infringement by the Compounds and/or the Products upon any patent rights or other intellectual property rights held by a third party. Sunesis shall have the right to control the defense of such action, suit or claim alleging infringement. Any liability and expenses incurred by Sunesis in such defense shall be treated as amounts paid for third party patent rights under Section 3.05 above to the extent such third party patent rights are Dominating Patent Rights. In the event that the Patent Rights are alleged to be invalid by such third party, Sunesis shall have the right, but not the obligation, to defend against such claims of invalidity, provided that Dainippon shall have the right to participate therein with advisory counsel of its own selection at its own expense. In the event Sunesis elects not to defend against such claims of invalidity, Dainippon shall take at its own expense, risk and responsibility any step to cope with the claim of invalidity, provided that Dainippon reasonably judges that there is commercial interest for Dainippon to cope with the claim of invalidity. 13.04 NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES (INCLUDING LOST OR ANTICIPATED REVENUES OR PROFITS RELATING TO THE SAME), ARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT, WHETHER SUCH CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SAME.

Representations and Warranties Disclaimer. 13.01 Dainippon (a) Each of the parties hereto represents and warrants that to the best of Dainippon’s knowledge as of the Effective Date: (ai) Dainippon is the owner of the right, title, and interest in and to the Compounds and the Patent Rights and agrees not to transfer ownership of the Patent Rights to any third party during the period of this Agreement without the prior written consent of Sunesis. Dainippon it has the sole right and authority to enter into this Agreement and grant perform and discharge its obligations hereunder, and (ii) it has not entered into and is not subject to any agreement or obligation that conflicts with this Agreement or the rights and licenses hereunderperformance of its obligations under this Agreement. (b) Dainippon has not previously granted, and during Subject to the period Section of Exhibit B (Disclosure Schedule) corresponding to the relevant subclause of this Agreement will not grantSection ‎7.1(b), MIPS represents and warrants that (i) Exhibit A sets forth a complete and accurate list of all Patents owned or purported to be owned by MIPS or any rights of its Affiliates or that have been filed or issued by or in the Compounds name of MIPS or any of its Affiliates, (ii) it or one of its Affiliates is the sole and exclusive owner of the Patent Rights that Listed Patents, including all rights to recover for alleged infringement of the Listed Patents, (iii) it has the right to grant releases, covenants and licenses with respect to the Listed Patents of the full scope set forth herein and, to its knowledge, there are inconsistent with no Licensed Patents other than the rights Listed Patents; (iv) no payment of consideration to or consent by any Third Party is required for the covenants, releases and licenses granted to Sunesis herein. Dainippon shall not suffer ; (v) neither it nor any of its Affiliates has assigned or permit any liens or restrictions to be imposed on the Patent Rights without the prior written consent of Sunesis unless the lien holder agrees to take such intellectual property subject to Sunesis’ rights therein. (c) Schedule 1.17 accurately and completely identifies all of the patents and patent applications within the Patent Rights as of the Effective Date. To the extent that Dainippon has omitted from the Patent Rights any patent or patent application, the claims of which would dominate the practice of the Patent Rights or be [*] Certain information on this page has portions denoted with an asterisk have been redacted omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. infringed otherwise transferred any of its ownership or exclusive rights to any Patent after [*] that would otherwise constitute a Licensed Patent under this Agreement if such ownership or exclusive rights had been retained by MIPS or its Affiliate; and (vi) the manufacture, sale, use, importation or other exploitation Affiliates of MIPS as of the CompoundsEffective Date are listed in Exhibit C and, Dainippon shall grant Sunesis a semi-exclusive license, including the right to sublicense, under such patent to perform the rights and obligations of this Agreement. (d) There are no patent rights of any third party which may prevent or hinder any performance of obligations or exercise of rights under this Agreement, and none of the Patent Rights are invalid, unenforceable or have been misused; provided that no such warranty is made under this Section 13.01(d) with respect to patent rights disclosed to Sunesis in writing prior to the Effective Date. (e) With respect to the composition of matter, method of use and manufacture relating to the Compounds, Dainippon owns the right, title and interest in and to the Compounds and the Products. (f) As as of the Effective Date, there are is no existing actionsother Person that directly or indirectly Controls, suits is Controlled by or proceedingsis under common Control with MIPS or any of its Affiliates. (c) MIPS represents and warrants that neither MIPS nor any of its Affiliates, and Dainippon has not received any written claim or demand from a third party, that challenges Dainippon’s rights with respect to the Patent Rights, the Information and Know-How, the Compounds and/or the Products or Dainippon’s rights to enter into in anticipation of this Agreement participated in any transaction or that asserts that development, manufacture series of transactions where the result of such transaction(s) is (or sale of was) to avoid extending to Broadcom or its Affiliates the Compounds and/or the Products would infringe the intellectual property license rights of a third party. 13.02 Except as and covenants set forth in Section 13.01this Agreement that Broadcom and its Affiliates otherwise would have enjoyed. (d) Nothing in this Agreement shall be construed as: (i) requiring the filing of any patent application, Dainippon does not warrant the securing of any patent, or the maintaining of any patent in force; (ii) a warranty or representation as to the validity, enforceability, value, or scope of any Patent or other intellectual property right; (iii) a warranty or representation that the Patent Rights granted Sunesis by Dainippon hereunder are valid and do any manufacture, sale, offering to sell, lease, use, importation, or other disposal of any product, software, or service will not infringe upon or will be free from infringement of any patent rights Patents or other intellectual property rights held of any Third Party; or (iv) an agreement to be held by third parties in the Territory bring or that Sunesis’ performances under this Agreement are free from infringement upon prosecute actions or suits against any rights or licenses held or to be held by third parties in the Territory. Except pursuant to the representations and warranties set forth in Section 13.01, Dainippon is not obliged to indemnify Sunesis, its Affiliates and the Sublicensees Third Party for any cost, loss or damage caused by invalidity of the Patent Rights or infringement by the Compounds and/or the Products upon any rights or licenses held by third partiesinfringement. 13.03 Each party hereto shall notify the other party promptly in the event of the receipt of notice of any action, suit or claim alleging infringement by the Compounds and/or the Products upon any patent rights or other intellectual property rights held by a third party. Sunesis shall have the right to control the defense of such action, suit or claim alleging infringement. Any liability and expenses incurred by Sunesis in such defense shall be treated as amounts paid for third party patent rights under Section 3.05 above to the extent such third party patent rights are Dominating Patent Rights. In the event that the Patent Rights are alleged to be invalid by such third party, Sunesis shall have the right, but not the obligation, to defend against such claims of invalidity, provided that Dainippon shall have the right to participate therein with advisory counsel of its own selection at its own expense. In the event Sunesis elects not to defend against such claims of invalidity, Dainippon shall take at its own expense, risk and responsibility any step to cope with the claim of invalidity, provided that Dainippon reasonably judges that there is commercial interest for Dainippon to cope with the claim of invalidity. 13.04 NEITHER PARTY SHALL BE LIABLE TO (e) EXCEPT FOR THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES (INCLUDING LOST OR ANTICIPATED REVENUES OR PROFITS RELATING TO THE SAME), ARISING FROM ANY CLAIM RELATING TO EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES, WHETHER SUCH CLAIM IS EXPRESS, IMPLIED, OR STATUTORY, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE AND HEREBY DISCLAIM ANY AND ALL WARRANTIES, INCLUDING ANY AND ALL WARRANTIES OF TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR PURPOSE, OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT. (f) EXCEPT WITH RESPECT TO [*], IN NO EVENT SHALL [*] BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, OR FOR ANY OTHER PUNITIVE DAMAGES, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SAMEANY OTHER LEGAL THEORY.