Representations Warranties and Covenants Indemnification. (a) As of the Effective Date, Licensor represents that to its actual knowledge and the actual knowledge of the Endolaser Inventors, (i) the Technology does not infringe any patent of any person, firm, or company, and (ii) there is no pending or threatened litigation challenging the validity or ownership of the Patents. (b) Licensor represents that it is a limited liability company duly formed and validly existing under the laws of the State of Delaware. (c) Licensee represents that it is a corporation duly formed and validly existing under the laws of the State of Delaware. (d) Each of Licensor and Licensee warrant and represent it has taken all necessary action to approve this Agreement and to authorize the respective officers of Licensor and Licensee to execute this Agreement and such further documents as are necessary and proper to consummate the terms and provisions of this Agreement. Upon the execution hereof, this Agreement will constitute the valid and legally binding obligation of Licensor and Licensee, enforceable in accordance with its terms. (e) Licensor represents and warrants that there is no undivided interest in the Patents other than the undivided interest in the Patents that it owns and such undivided interest as was originally owned by Dr. Xxxxxx Min. Licensor owns its undivided interest in and to the Patents via an assignment from the Endolaser Inventors, without the right of rescission, free and clear of all licenses, liens, security interests, charges, encumbrances and other adverse claims, and has all right and authority to grant to Licensee the licenses set forth herein. Licensor further represents and warrants that it has accounted for all payments and pecuniary obligations of any kind owed to any of the Endolaser Inventors and that none of the Endolaser Inventors has or shall have a claim against Licensee related to any of the Fixed Payments or royalties payable by Licensee hereunder. In furtherance of the foregoing, Licensor shall procure from the Endolaser Inventors and provide to Licensee prior to the Funding Date, as a condition to Licensee's obligation to make the payment required by Section 5.1, originally-executed counterparts of the letter of acknowledgment in the form attached hereto as ATTACHMENT B. (f) Licensor represents and warrants that the sole business of Licensor is, and since the date of its formation has been, to hold and exploit the interests of the Endolaser Inventors in the Patents through licensing arrangements and that during the Term, Licensor will not enter into any transactions or business other than as heretofore conducted and will not incur any indebtedness for borrowed money in excess of $50,000. (g) Licensee acknowledges that it has, prior to its execution of this Agreement, reviewed and evaluated the Patents. 7.2 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE PARTIES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, BY STATUTE, OPERATION OF LAW OR OTHERWISE, WHETHER WRITTEN OR ORAL, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, INCLUDING ANY REPRESENTATIONS OR WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 7.3 Except as set forth in Section 7.1, nothing in this Agreement shall be construed as: (a) a warranty or representation by Licensor as to the validity, enforceability or scope of any Patent; or (b) a warranty or representation by Licensor that anything made, used, sold, or otherwise disposed of pursuant to this Agreement by Licensee is or will be free from infringement of patents or other intangible rights of Third Parties; or (c) an obligation of Licensor to bring or prosecute actions or suits against Third Parties for infringement of any Patent; or (d) an obligation of Licensor to furnish any manufacturing or technical assistance or information. 7.4 Licensor assumes no responsibilities whatever with respect to the manufacture, use, sale or other disposition by Licensee, its Sublicensee(s) or their customers of any Licensed Product. 7.5 Licensor shall indemnify, defend and hold harmless Licensee and its Sublicensees and their respective directors, officers, employees and agents from and against any and all liabilities, damages, losses, costs and expenses (including reasonable attorneys fees and professional fees and other expenses of litigation and/or arbitration) resulting from or arising out a breach by Licensor of any of its representations or warranties made in Section 7.1. 7.6 Licensee shall indemnify, defend and hold harmless Licensor and its respective directors, officers, employees and agents the Endolaser Inventors from and against any and all liabilities, damages, losses, costs and expenses (including reasonable attorneys fees and professional fees and other expenses of litigation and/or arbitration) resulting from or arising out a breach by Licensee of any of its representations or warranties made in Section 7.1. 7.7 Licensee shall indemnify, defend and hold harmless Licensor and its directors, officers, employees, agents and consultants and the Endolaser Inventors (each an "Endolaser Indemnitee") from and against any and all liabilities, damages, losses, costs and expenses (including reasonable attorneys' and professional fees and other expenses of litigation and/or arbitration) resulting from or arising out of a claim, suit or proceeding brought by a third party against an Endolaser Indemnittee for personal injury, death, product liability or property damage arising out of or relating to the manufacture, use, sale or other disposition of Licensed Products or practice of Licensed Methods; PROVIDED, that this Section 7.6 shall not require Licensee to indemnify, defend or hold harmless Licensor or any of the Endolaser Inventors with respect to any liabilities, damages, losses, costs or expenses arising out of the rendering of professional services by the Endolaser Inventors.
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