1.6 “Improved Product” shall have the meaning set forth in Section 17.6.     1.7 “Lateral Flow Patent Rights” means Patents that (i) exist as of the EffectiveDate, (ii) are Controlled by Licensor as of the Effective Date, and (iii) claim or cover adiagnostic test for at least one analyte and which test comprises a detectable entity and whenwetted provides for liquid flow under capillary action.     1.8 “Laws” means all laws, statutes, rules, regulations, ordinances and otherpronouncements having the effect of law of any federal, national, multinational, state, provincial,county, city or other political subdivision, domestic or foreign.     1.9 “License Agreement” means this License Agreement, including all exhibits andattachments hereto.     1.10 “Licensed Company” shall have the meaning set forth in Section 3.2(b).     1.11 “Licensed Product” means any product, branded under only one or more brandsControlled by Licensee or its Affiliates, the making, having made (on Licensee’s behalf), using,selling, offering for sale or importing of which by or on behalf of Licensee would, but for thelicense granted to Licensee pursuant to this License Agreement infringe a Valid Claim of a Patentincluded in the Patent Rights in the country in which any such product is so made, used, sold,offered for sale or imported by Licensee or on Licensee’s behalf.     1.12 “Licensee” shall have the meaning set forth in the Introductory Paragraph.     1.13 “Licensor Competitor” shall have the meaning set forth in Section 17.6.     1.14 “Licensor Indemnitees” shall have the meaning set forth in Section 14.1.     1.15 “Licensor” shall have the meaning set forth in the Introductory Paragraph.     1.16 “Minimum Annual Royalty” shall have the meaning set forth in Section 3.5(a).     1.17 “Net Sales” means the gross amounts invoiced or billed, and all other amounts(including as a result of any agreement or arrangement with any Third Party and whether in cash ornon-cash consideration) received by Licensee with respect to sales by or on behalf of Licensee ofLicensed Product to unaffiliated Third Parties less the sum of actual amounts for the followingitems: any outbound transportation, insurance and other shipping and handling costs paid orallowed; trade, quantity and discounts in amounts customary in the trade; allowances and credits topurchasers for damaged and returned product, including allowances and credits because of returns orrejections; excise, duty, sales or similar taxes; allowances for promotional and demonstrationunits permitted under Section 3.4; and [*]. “Net Sales” shall be measured on a country-by-countrybasis, when a Licensed Product is first sold or otherwise transferred for value by or on behalf ofLicensee, or first used or leased in such country.     1.18 “Party” means Licensee or Licensor, individually, and “Parties” means Licenseeand Licensor, collectively.     1.19 “Patent Challenge” shall have the meaning set forth in Section 2.7.     1.20 “Patent Rights” means the Patents listed on Schedule A attached hereto.     1.21 “Patents” means (a) patents and patent applications, (b) substitutions,divisionals, continuations, continuations-in-part, reissues, provisional applications,registrations, confirmations, reexaminations and renewals of any such patents and patentapplications, and (c) [ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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any foreign equivalents of the foregoing.     1.22 “Pre-Existing Licenses” shall have the meaning set forth in Section 2.5.     1.23 “Professional Channel” means sales or distribution channels where products orsystems are designed or intended for, or marketed to, (a) professional providers of non-humananimal health-care, including veterinary health-care, and professional non-human animal health-carecenters, (b) other Third Party professionals trained to administer and/or analyze diagnostic testson non-human animals, and (c) diagnostic laboratories. Notwithstanding anything to the contrary inthis License Agreement, “Professional Channel” does not include sales or distribution channelswhere products or systems are primarily intended for or marketed to an end-user consumer forprivate use, including self-care, at-home care, and minute clinic channels.     1.24 “Representatives” shall have the meaning set forth in Section 12.1.     1.25 “Royalties” shall have the meaning set forth in Section 3.2(a).     1.26 “Third Party” means any person or entity other than Licensee, Licensor and theirrespective Affiliates.     1.27 “Valid Claim” means any unexpired issued claim or pending claim prosecuted ingood faith of any Patent Right which has not lapsed, become abandoned or been held revoked,invalid, or unenforceable by a decision of a court or administrative or government authority oragency of competent jurisdiction from which no appeal can be or has been taken within the timeallowed for such appeal, and which has not been admitted to be invalid or unenforceable throughreissue, disclaimer or otherwise.**2.****License Rights****.**     2.1 Patent Rights. Subject to the terms and conditions set forth in this LicenseAgreement, Licensor hereby grants to Licensee, and Licensee hereby accepts, a worldwide, exclusive(subject to limitation in Section 2.3), royalty-bearing, non-transferable (except as expressly setforth in Section 17.6) and non-sublicenseable right and license under Licensor’s rights in and tothe Patents included in the Patent Rights, in the Field only, to make, have made for Licensee(including by contract manufacturers for Licensee), use, sell, offer for sale and import LicensedProducts in the Professional Channel, and the right to practice the methods claimed in such PatentRights in connection with such Licensed Products. Licensee may exercise its rights under thisSection 2.1 directly or through distribution channels on its behalf.     2.2 Sublicensing; Additional Licenses.     (a) No Sublicensing. Licensee shall not sublicense, directly or indirectly, therights granted to Licensee under Section 2.1. The Parties agree that any potential sublicenseeopportunity with respect to rights under this License Agreement shall be addressed pursuant toSection 2.2(b).     (b) Additional License Opportunities. In the event that either Party identifies apossible opportunity to grant licenses to Third Parties under the Patent Rights in the Field and inthe Professional Channel, the other Party shall cooperate with such Party in connection with suchopportunity. [*]     2.3 Exclusivity. The license rights granted to Licensee under Section 2.1 areexclusive in the Field and in the Professional Channel as to (a) all persons and entities otherthan [ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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Licensor and Third Parties to whom Licensor or any of its licensors or their predecessors hasgranted licenses as of the October 10, 2008 under the Patent Rights that may be exploited in theField, including the Third Parties identified or contemplated under Section 2.5 below; and (b) anysubsequent licensee agreed upon by the Parties pursuant to Section 2.2(b). Notwithstanding anythingto the contrary in this License Agreement, the grant of rights by Licensor under this LicenseAgreement shall be subject and limited in all respects by the terms of the applicable Third Partyagreements and arrangements pursuant to which Licensor acquired any Patent Rights, and all rightsor sublicenses granted under this License Agreement shall be limited to the extent that Licensormay grant such rights and sublicenses under the Patent Rights.     2.4 Licensor Out-Licensing Restrictions. During the term of this License AgreementLicensor shall not, except with the written consent of Licensee, (i) enter into any new agreementswith a Third Party pursuant to which Licensor grants such Third Party new license rights under anyLateral Flow Patent Rights in the Field and in the Professional Channel except in accordance withSection 2.2(b), or (ii) notwithstanding any rights to the contrary under any Pre-Existing License,amend any Pre-Existing License in a manner that extends or expands the license rights of such ThirdParty under any Lateral Flow Patent Rights in the Field and in the Professional Channel if suchextension or expansion would materially adversely affect Licensee’s rights under this LicenseAgreement.     2.5 Pre-Existing Licenses.          (a) The grant of rights by Licensor under this License Agreement shall be subject to andlimited in all respects by the terms and conditions of the applicable agreements existing as of theEffective Date pursuant to which Licensor has control of any Patent Rights, and all rights orsublicenses granted under this License Agreement shall be limited to the extent that Licensor maygrant such rights and sublicenses under the terms and conditions of the applicable agreementsexisting as of the Effective Date pursuant to which Licensor has granted any right or license to aThird Party under the Patent Rights (collectively, the “Pre-Existing Licenses”).          (b) [*]          (c) [*]     2.6 Restrictions. Licensee shall not knowingly (i.e., knew or should have known)sell, transfer or otherwise provide, directly or indirectly, the Licensed Products for use or saleoutside of the Field and/or outside of the Professional Channel. In connection with any Licenseetransaction or agreement relating to any Licensed Product with a Third Party, Licensee shallrestrict (through contracts and/or purchase orders, marketing literature, shipping documents, orsimilar documents used when a supply, distribution or similar agreement is not in place) such ThirdParty and require similar restrictions throughout the supply chain, from shipping or sellingLicensed Products outside of the Field and/or outside of the Professional Channel. Licenseeshall use commercially reasonable efforts to enforce such restrictions, including by (i) promptlysuspending shipments of the Licensed Products to a Third Party if the Licensed Products are beingsold or used by such Third Party outside the Field and/or outside of the Professional Channel, (ii)notifying such Third Party in writing of such alleged violation, (iii) conducting an investigationof such violation as reasonably appropriate under the circumstances, (iv) following [ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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completion ofsuch investigation, terminating any agreement with such Third Party following the investigation ofwhich revealed that such Third Party failed to comply with such restrictions, and (v) pursuing adamage claim (or authorizing Licensor to pursue such damage claim on its behalf) against any suchThird Party that failed to comply with its restrictions in accordance with this Section 2.6. Inany written agreement of Licensee with a Third Party with respect to a Licensed Product to whichLicensor is not a party, Licensee shall require that such Third Party agrees that Licensor shall betreated as an intended third party beneficiary for purposes of enforcing under such agreement therestrictions described in this Section 2.6.     2.7 Licensee No-Challenge Covenant. In the event that Licensee or any of itsAffiliates institutes or prosecutes itself or through a Third Patty (other than to defend anyPatent licensed to Licensee under Section 2.1), or substantially supports a Third Party ininstituting or prosecuting, before any administrative or regulatory body, including the U.S. Patentand Trademark Office or its foreign counterparts, any claim, demand, action or cause of action fordeclaratory relief, damages or any other remedy or for an enjoinment, injunction or any otherequitable remedy, including any interference, re-examination, opposition or any similar proceeding,alleging that any claim in a Patent included in the Lateral Flow Patent Rights is invalid,unenforceable or otherwise not patentable (a “Patent Challenge”), Licensor shall have theright to terminate this License Agreement upon thirty (30) day prior written notice, if not curedwithin such 30-day period. For clarity, the term “substantially supports” as used in this Section2.7 shall not include cooperation required to be provided pursuant to any order, subpoena or otherresponse to any action undertaken by an administrative or regulatory body.     2.8 Reservation of Rights. Licensor hereby reserves and retains all right, title andinterest in and to the Patent Rights and all other rights not expressly granted hereunder and anyand all remedies herein expressly conferred upon a Party will be deemed cumulative with, and notexclusive of, any other remedy conferred hereby, or by law or equity upon such Party, and theexercise by a Party of any one remedy will not preclude the exercise of any other remedy availableunder this License Agreement or otherwise.     2.9 Covenant not to Sue. Licensor hereby agrees that it will not (nor will Licensorgrant any rights to a Third Party to) threaten, make a claim or undertake any action againstLicensee, Licensee’s distributors or customers with respect to Licensee’s making, having made,using, selling, offering for sale or importing of Licensed Products in the Field and in theProfessional Channel in accordance with this License Agreement during the term of this LicenseAgreement. The obligations of Licensor under this Section 2.9 shall only apply with respect to anyValid Claims of Patents Controlled by Licensor as of the Effective Date solely to the extent thatsuch Valid Claims claim or cover subject matter or a method that is necessary for Licensee to make,have made, use, sell, offer for sale or import Licensed Products in the Field and in theProfessional Channel in accordance with the terms and conditions of this License Agreement.Notwithstanding anything to the contrary in this License Agreement, the foregoing shall have noforce or effect with respect to any product manufactured, offered for sale, sold, transferred, orotherwise used, directly or indirectly, outside of the Field and/or outside of theProfessional Channel.**3.****License Fee and Royalties.**     3.1 License Fee. In partial consideration of the rights granted to Licensee underthis [ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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Licensee Agreement, Licensee shall pay to Licensor a license fee in the amount of Five MillionDollars ($5,000,000). Such license fee payment is due on the Effective Date and payable within twobusiness days following the Effective Date. In addition, such license fee payment is nonrefundableand is not creditable against any other payments due to Licensor under this License Agreement.     3.2 Earned Royalties.     (a) In partial consideration of the rights granted to Licensee under this License Agreement,Licensee shall pay to Licensor a royalty of [*] of Net Sales of Licensed Products made by or onbehalf of Licensee (“Royalties”). Royalties shall be paid on a Licensed Product byLicensed Product and country by country basis from the first commercial sale of each LicensedProduct in a country until expiration of the last to expire of any issued Patent within the PatentRights covering such Licensed Product or its manufacture or use in such country.     (b) In the event that a Third Party that has a royalty-bearing license to or under any of thePatent Rights (a “Licensed Company”) (i) is acquired by Licensee or (ii) sells componentsto Licensee for integration by Licensee into a Licensed Product, the royalty that would otherwisebe payable to Licensor with respect to Licensed Company’s or Licensee’s use of the Patent Rights inconnection with the Licensed Products shall be included in (that is, not be in addition to) the [*]Royalties payable to Licensor by Licensee in connection with Net Sales of such Licensed Product.     3.3 Royalties shall not be due on sales or transfers of any Licensed Product manufactured byLicensor on behalf of Licensee as contemplated under Section 5.     3.4 Licensee may provide reasonable quantities of Licensed Products to Third Parties solelyfor promotional or demonstration purposes without charge, which Licensed Products shall not bedeemed to be included in the calculation of Net Sales.     3.5 Minimum Royalties.     (a) For each completed calendar year during the term of this License Agreement, Licensee shallpay Licensor the following minimum royalty payments (“Annual Minimum Royalty”):     Calendar Year Minimum Royalty2009  0 2010 $500,000 2011 $750,000 2012 and beyond $1,000,000      (b) If the actual Royalties to Licensor in any calendar year are less than the Annual MinimumRoyalty payment required for the specified year, Licensee may pay Licensor the difference betweenthe actual Royalties during the applicable calendar year and the Annual Minimum Royalty payment infull satisfaction of its obligations under this Section 3.5 within sixty (60) days after the end ofthe applicable calendar year. [ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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     (c) If in any calendar year Licensee fails to make the Annual Minimum Royalty payment and doesnot cure such failure within fifteen days (15) after written notice by Licensor, Licensor may, inits sole discretion, immediately upon written notice to Licensee, terminate this License Agreementor convert the exclusive license into a non-exclusive license, at which point there shall be norestrictions on Licensor’s ability to exploit or grant licenses under the Patent Rights, includingLicensor’s right to grant additional licenses to Third Parties under the Patent Rights in the Fieldand in the Professional Channel. Waiver of any Annual Minimum Royalty payment by Licensor is not awaiver of any subsequent Annual Minimum Royalty payment.     (d) Net Sales attributable to Licensed Products manufactured by Licensor on behalf of Licenseeas contemplated under Section 5 shall be credited against the applicable Annual Minimum Royalty (asif earned Royalties had been paid on sales of such Licensed Products).     3.6 Payments. Royalties shall be paid by Licensee within sixty (60) days after theend of each calendar quarter in which the applicable Net Sales are received by Licensee. Royaltiespayable to Licensor by Licensee shall be computed and paid in U.S. dollars by wire transfer. Forpurposes of determining the amount of Royalties due, the amount of Net Sales in any foreigncurrency shall be computed by converting such amount into U.S. dollars at a rate equal to theprevailing commercial rate of exchange for purchasing dollars with such foreign currency aspublished in the Wall Street Journal for the close of the last business day of the calendar quarterfor which the relevant Royalty payment is to be made by Licensee. Payments shall be withoutdeduction of exchange, collection, or other foreign currency translation charges. Any past dueamounts under this License Agreement will be subject to an automatic late fee of 11/2% per month orthe highest rate allowed by law, whichever is less.     3.7 Taxes. If a law or regulation of any country requires withholding of taxes of anytype, levies or other similar charges with respect to any amounts payable hereunder, Licensee shallpromptly pay such tax, levy or other charge to the appropriate government authority and furnishLicensor with documentation of such payment. Licensee shall be entitled to deduct such tax, levyor charge actually paid from the payment due to Licensor. Licensee agrees to assist Licensor inclaiming exemption from such deduction or withholding.     3.8 Reports. Licensee further shall deliver written reports to Licensor relating tothe Net Sales of each Licensed Product on a calendar quarter basis, with each report setting forth(a) the quantity and dollar value of Licensed Products sold during the immediately prior calendarquarter by country in which such Licensed Product was sold, (b) the Net Sales of each LicensedProduct by Licensee in each country and (c) a calculation of the amount of Royalty due. Suchreports shall be provided to Licensor no later than sixty (60) days following the end of thecorresponding calendar quarter.**4. ****Records and Audit****.**Licensee shall keep complete and accurate records of sales by or onbehalf of Licensee of each Licensed Product in sufficient detail to allow the accruing Royalties tobe determined accurately for a period of not less than three (3) years. Licensor shall have theright to appoint at its expense an independent certified public accountant reasonably acceptable toLicensee to inspect the relevant records of Licensee to verify such report or statement, includinghistorical payments for a period of up to three (3) years from the date of notice of inspection.Upon Licensee’s written request, Licensee shall permit such independent certified public accountantwho has entered into a reasonably acceptable confidentiality agreement and, if necessary,Licensor’s technical personnel, to examine records, materials, and manufacturing [ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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processes ofLicensee, during regular business hours and no more frequently than one time per calendar year, atLicensee’s applicable facility, to verify the accuracy of the reports and payments by Licensee.Licensor agrees to hold in confidence and not use for any purpose all information concerningRoyalty payments and reports, and all information learned in the course of any audit or inspection,except to the extent necessary for Licensor to reveal such information in order to enforce itsrights under this License Agreement or if disclosure is required by law.**5.****Manufacturing and Development****.**     5.1 [*]     5.2 [*]          (a) [*]          (b) [*]**6.****Patent Marking****.**Licensee shall mark or cause to be marked all Licensed Products withthe number of each issued Patent under the Patent Rights that applies to such Licensed Product in amanner to provide sufficient notice under 35 U.S.C. § 287(a) and other applicable law. In theevent that a Licensed Product cannot be marked itself, the patent notice shall be placed onassociated tags, labels, packaging, or accompanying documentation, either electronic or paper, asappropriate to provide sufficient notice under 35 U.S.C. § 287(a) and other applicable law.**7.****Compliance with Laws****.**Licensee shall comply with all applicable Laws in connection withthe research, development, manufacture, use, sale, import and/or export of Licensed Products, itsuse of the Patent Rights, and its performance of this License Agreement.**8.****Prosecution and Maintenance****.**Licensor has the sole right to file, prosecute andmaintain with the U.S. Patent and Trademark Office, the U.S. Copyright Office or any similar officeor agency, at its sole expense, the Patent Rights, in its own name and in countries designated byit at its sole discretion. Licensor shall keep Licensee regularly informed regarding status ofmaterial issues (including copies of relevant correspondence and filings) pertaining to theprosecution and maintenance of the Patent Rights in the Field.**9.****Enforcement and Defense****.**     9.1 Infringement by Third Party.          (a) Notice of Third Party Infringement. Each Party shall promptly notify the otherParty in writing of any Third Party infringement of the Patent Rights occurring in the Field and inthe Professional Channel.          (b) Licensee’s Rights.               (i) Licensee shall have the first option, but not the obligation, under its own controland at its own expense, to prosecute any Third Party infringement of the Patent Rights ifsuch infringement is occurring solely in the Field and in the ProfessionalChannel or to defend the Patent Rights in any action (other than interferences,oppositions, reissue proceedings and re-examinations with respect thereto) brought by aThird Party against Licensee which alleges invalidity, unenforceability, or non-infringementof the Patent Rights if such action is solely in the Field and in the Professional Channel. [ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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               (ii) If Licensor fails to exercise its rights under Section 9.1(c)(i) below withrespect to a specific claim of infringement or action [*], then Licensee shall have theright, but not the obligation, under its own control and at its own expense, to prosecutesuch Third Party infringement of the Patent Rights or to defend the Patent Rights in suchaction (other than interferences, oppositions, reissue proceedings and re-examinations withrespect thereto) [*] against Licensee which alleges invalidity, unenforceability, ornon-infringement of the Patent Rights in the Field and in the Professional Channel.               (iii) If Licensor fails to exercise its rights under Section 9.1(c)(i) below withrespect to a specific claim of infringement or action [*], Licensor may elect to allowLicensee to prosecute such Third Party infringement of the Patent Rights or defend any suchaction. In such case, Licensor shall give written notice to Licensee of such election assoon as practicable, but in no case later than reasonably necessary for Licensee to meet anyapplicable deadline for such enforcement or action, and Licensee shall have the right in itssole discretion to bring suit or defend such action on its own behalf, at its own expense.          (c) Licensor’s Rights.               (i) With respect to any Third Party infringement of the Patent Rights that is occurringin the Field and in the Professional Channel as well as in the Excluded Field or outside ofthe scope of the exclusive rights granted to Licensee hereunder, Licensor shall have thefirst option, but not the obligation, under its own control and at its own expense, to bringsuit or defend such action on its own behalf, at its own expense.               (ii) If Licensee fails to exercise its rights under Section 9.1(b) above with respectto a specific claim of infringement or action, then Licensee shall give notice to Licensoras soon as practicable, but in no case later than reasonably necessary for Licensor to meetany applicable deadline for such enforcement or action, and Licensor shall have the right inits sole discretion to bring suit or defend such action on its own behalf, at its ownexpense. In addition, and except for the limited rights granted to Licensee under Section9.1(b) above, Licensor shall have sole control at its sole expense over any and allprosecution of any Third Party infringement of the Patent Rights and any defense of thePatent Rights in any action brought by a Third Party which alleges invalidity,unenforceability, or non-infringement of the Patent Rights.     9.2 Infringement of Third Party Rights.          (a) Notice of Infringement. Licensee shall promptly notify Licensor in writing if themanufacture, sale, offer for sale, use or importation of any Licensed Product that practices thePatent Rights results in any claim, suit or proceeding filed by a Third Party alleging patentinfringement.          (b) Right to Defend. If a claim (including any counterclaim) is brought against aParty with respect to a Licensed Product that practices the Patent Rights and such Party desires toassert any Patent Rights as a defense to such claim then that Party shall have the right to defendand control the defense of any such claim, suit or proceeding which relates to the Patent Rights,at its own expense. [ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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     9.3 Process and Cooperation.          (a) Process. In the event that Licensee desires to exercise its rights under Sections9.1(b) or 9.2(b), Licensee shall, at its own expense, first provide Licensor with a written summaryof its prima facie case, any proposed legal and factual arguments and any additional documents andmaterials requested by Licensor and its counsel to enable Licensor and its counsel to evaluate thepotential legal and business risks to the Patent Rights that could result from such suit or action.Licensor and its counsel shall, at its own expense, review the materials provided under thisSection 9.3(a) to determine whether Licensee’s proposed suit or defense of the applicable actionraises substantial potential legal and business risks to the Patent Rights, including, withoutlimitation, potential challenges to the validity of any Patent Rights and/or claim constructionthat may impact Licensor’s exercise of its rights under the Patent Rights. Within thirty (30) daysfollowing delivery of the materials and documents by Licensee pursuant to this Section 9.3(a),Licensor shall notify Licensee whether, based on advice of Licensor’s counsel, Licensor elects toproceed with such proposed suit or defense of the applicable action.          (b) Cooperation. The non-enforcing Party shall reasonably assist the enforcing Partyin any action or proceeding being defended or prosecuted under Article 9 if so requested, and shalljoin such action or proceeding if reasonably requested by the enforcing Party or required byapplicable law or, if the enforcing Party is unable to legally become a party to such action, shalljoin or commence such action and act on behalf, and at the direction of, the enforcing Party. Inaddition, the non-enforcing Party shall have the right to participate in any such action orproceeding with its own counsel at its own expense and without reimbursement.          (c) Control. With respect to any suit or action contemplated under Sections 9.1(b) or9.2(b), Licensor shall have the right to control the prosecution or defense of such suit or actionat any time, at its own expense, in the event that such action raises potential substantial legaland business risks to the Patent Rights, including, without limitation, potential challenges to thevalidity of any Patent Rights and/or claim construction that may impact Licensor’s exercise of itsrights under the Patent Rights.     9.4 Settlements. The enforcing Party may enter into any settlement, includinggranting of a sublicense under the Patent Rights in the Field and in the Professional Channel,consent judgment, or other voluntary final disposition of any infringement or declaratory judgmentaction hereunder, provided that the terms and conditions of any such settlement and sublicense,including the sharing of any settlement proceeds (after the reimbursement to the enforcing Party ofall of its costs and expenses in bringing such action) pertaining to infringement in the Field, areagreed to in writing by the Parties, provided, further, that Licensee shall notenter into any agreement or settlement which admits or concedes that any aspect of the PatentRights is invalid or unenforceable without the prior written consent of Licensor. In addition, nosettlements, consent judgments, or other voluntary final dispositions of a disputeadversely affecting the rights or obligations of a Party under this License Agreement, shallbe entered into in connection with any dispute, claim or proceeding described in this Article 9without the prior written consent of the adversely affected Party, such consent not to beunreasonably withheld. Notwithstanding the foregoing to the contrary, Licensor shall have theright to settle any suit or action contemplated under Sections 9.1(b) or 9.2(b) if at any pointsuch suit or action raises potential substantial legal and business risks regarding potentialchallenges [ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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to the validity of any Patent Rights and/or claim construction that may impactLicensor’s exercise of its rights under the Patent Rights.     9.5 Recovery. Unless otherwise agreed to in writing by the Parties, any recoveryobtained by either or both Licensee and Licensor in connection with or as a result of any actionunder the Patent Rights in the Field and in the Professional Channel contemplated by Sections9.1(b), 9.1(c)(i), 9.2(b), whether by settlement or otherwise, shall be shared in order as follows:(i) the Party that prosecuted or defended the action shall recoup all of its costs and expensesincurred in connection with such action; and (ii) the amount of any recovery remaining shall thenbe allocated on a [*] basis.**10.****Representations and Warranties****.**     10.1 Licensor. Licensor hereby represents and warrants to Licensee that as of theEffective Date:          (a) All corporate action on the part of Licensor and on the part of each of its officers anddirectors necessary for the authorization, execution and delivery of this License Agreement and theperformance of its obligations hereunder has been taken.          (b) This License Agreement is the legal, valid and binding obligation of Licensor, enforceableagainst it in accordance with its terms.          (c) Licensor has the rights to grant to Licensee the license rights set forth in Section 2.1.          (d) Except as disclosed on Schedule B, Licensor is not aware of any rights or licensesgranted to a Third Party by Licensor in the Field and in the Professional Channel that wouldconflict with or have an adverse effect on Licensee’s exercise of the license rights granted toLicensee under Section 2.1.          (e) No claim is pending, or to the best knowledge of Licensor, has been threatened in writingagainst Licensor or its Affiliates challenging Licensor’s right of use or ownership of the PatentRights in the Field in the Professional Channel or to grant the licenses to the Patent Rights inthe Field in the Professional Channel pursuant to this Agreement.Notwithstanding anything to the contrary in this License Agreement, Licensor makes norepresentation or warranty with respect to any product manufactured, offered for sale, sold,transferred, or otherwise used, directly or indirectly, outside of the Field and/or outside of theProfessional Channel.     10.2 Licensee. Licensee hereby represents and warrants to Licensor that as of theEffective Date:          (a) All corporate action on the part of Licensee and on the part of each of its officers anddirectors necessary for the authorization, execution and delivery of this LicenseAgreement and the performance of its obligations hereunder has been taken.          (b) This License Agreement is the legal, valid and binding obligation of Licensee, enforceableagainst it in accordance with its terms.     10.3 Disclaimers. [ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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          (a) Except ax expressly provided in Section 10.1(a), Licensor makes no representation orwarranty regarding the sufficiency of the Patent Rights to support the operation of Licensee’sbusiness, or the making, using, selling, or importation of any product by Licensee. Further,Licensor hereby assumes any and all liability in respect of any infringement of Patents or otherrights of any Third Party in connection with Licensee’s operation under the Patent Rights.          (b) IT IS FURTHER UNDERSTOOD BY THE PARTIES THAT THE PATENT RIGHTS AND ANY LICENSES GRANTED BYLICENSOR TO LICENSEE ARE PROVIDED UNDER THIS LICENSE AGREEMENT “AS IS” AND MAY CONTAIN DEFICIENCIESAND THAT, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES INCLUDED IN SECTION 10.1, LICENSOR MAKES NOREPRESENTATIONS OR WARRANTIES UNDER THIS LICENSE AGREEMENT AND DISCLAIMS ALL IMPLIEDREPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR APARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.**11.****Term & Termination****.**     11.1 Term. This License Agreement commences on the Effective Date and remains ineffect on a country by country basis until the expiration of the last issued Patent within thePatent Rights in such country, unless earlier terminated in accordance with the provisions of thisLicense Agreement. Upon the expiration of the License Agreement, Licensee shall have no obligationto pay Royalties or make payments on sales of Licensed Products after such expiration.     11.2 Termination for Default. If either Party commits a material breach of itsobligations under this License Agreement and fails to cure that breach within sixty (60) days, orin the case on nonpayment of amounts due, within three (3) business days, after receiving writtennotice of the breach, the other Party may terminate this License Agreement immediately upon writtennotice to the Party in breach.     11.3Terminationfor Convenience. Licenseeshall have the right to terminate this License Agreement upon thirty (30) days notice to Licensor(a) prior to December 31, 2013, by payment of [*]; or (b) on or after January 1, 2014,Licensee may terminate this License Agreement upon thirty (30) daysprior written notice to Licensor.     11.4 Effect of Termination. Termination or expiration of this License Agreement shallnot relieve either Party of any obligations that incurred or accrued prior to such termination orexpiration, including as a result of breach. In addition, the following provisions survive theexpiration or termination of this License Agreement: 2.6 (with respect to Licensed Products soldduring the term of this License Agreement), 2.8, 2.9, 3, 4, (with respect to actions brought duringthe term of this License Agreement 9.3(b), 9.4 and 9.5), 11.1, 11.4, 12, 13, 14, 15, 16 and 17.**12.****Confidentiality; Publications; Publicity****.**     12.1 Terms of License Agreement. Neither Party will disclose the financial terms ofthis License Agreement to any other Third Party without the prior written consent of the otherParty, except that either Party may disclose the terms of this License Agreement to its employees,consultants, existing and potential investors, potential distributors, acquirers and lenders, theprofessional and legal advisers of any of the foregoing and its professional and legal advisers(collectively, “Representatives”), which Representatives have a “need-to-know” for the [ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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purposes of exercising such Party’s rights or performing such Party’s obligations under thisLicense Agreement or evaluating, negotiating or documenting a contemplated investment, loan oracquisition; provided, however, that each such Representative is bound by a writtenagreement (or in the case of attorneys or other professional advisors, ethical duties) requiringsuch Representative to treat, hold and maintain the terms of this License Agreement as confidentialinformation.     12.2 Publicity Restrictions. Except for the mutually agreed press release attachedhereto as Schedule C, Licensee may not use the name of Licensor, its Affiliates, or anyadaptation of their names, in any promotional material or other public announcement or disclosurewithout the prior written consent of Licensor. The foregoing notwithstanding, Licensee maydisclose that information without the consent of Licensor in any prospectus, offering memorandum,or other document or filing required by applicable securities Laws or other applicable Law,provided that Licensee provides Licensor at least ten (10) days prior written notice of theproposed text for the purpose of giving Licensor the opportunity to comment on the text.**13.****Limitations****.**THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION INTHIS LICENSE AGREEMENT, EXCEPT FOR LIABILITY ARISING FROM (I) A PARTY’S INDEMNIFICATION OBLIGATIONSUNDER THIS LICENSE AGREEMENT, (II) EITHER PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUALPROPERTY RIGHTS, OR (III) A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, NEITHER PARTY NORANY OF ITS AFFILIATES SHALL BE LIABLE TO THE OTHER OR ANY OTHER PERSON FOR DAMAGES IN THE FORM OFCONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, LOST PROFITS, LOST SAVINGS, LOSS OF GOODWILL OROTHERWISE, OR FOR EXEMPLARY DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCHDAMAGES. EXCEPT AS EXPRESSLY SET FORTH IN THE LAST SENTENCE OF SECTION 14.2 BELOW, IN NO EVENTSHALL LICENSOR’S LIABILITY TO LICENSEE EXCEED THE AMOUNT OF MONEY ACTUALLY RECEIVED BY LICENSORFROM LICENSEE UNDER THIS LICENSE AGREEMENT.**14.****Indemnification****.**     14.1 Licensee Indemnification Obligations. Licensee shall defend, indemnify and holdLicensor, its Affiliates and their respective officers, directors, employees and agents (the“Licensor Indemnitees”) harmless, and hereby forever releases and discharges all LicensorIndemnitees, from and against all losses, liabilities, damages and expenses (including reasonableattorneys’ fees and costs of litigation) incurred by or imposed upon any or all of the LicensorIndemnitees as a result of any claim, demand, action and other proceeding brought by a Third Partyunder any theory of liability (regardless of whether such action has any factual basis) (i)concerning any Licensed Product, the use by Licensee of the Patent Rights, or Licensee’s breach ofany representation or obligation under this License Agreement, except to the extent arisingfrom the negligence or willful misconduct of any Licensor Indemnitee or the breach of anyrepresentation or warranty made by Licensor under Section 10.1 of this License Agreement, or (ii)with respect to Licensee’s prosecution of any Third Party infringement of the Patent Rights ordirectly related defense of the Patent Rights under any suit or action contemplated under Sections9, Licensee shall pay all costs and damages finally awarded against Licensor by a court [ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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ofcompetent jurisdiction and any amounts owed by Licensor under any settlement agreement entered intoby Licensee as a result of any such prosecution or defense by Licensee.     14.2 Licensor Indemnification Obligations. Licensor shall defend, indemnify and holdLicensee, its Affiliates and their respective officers, directors, employees and agents (the“Licensee Indemnitees”) harmless, and hereby forever releases and discharges all LicenseeIndemnitees, from and against all losses, liabilities, damages and expenses (including reasonablyattorneys’ fees and costs of litigation) incurred by or imposed upon any of the LicenseeIndemnitees as a result of any claim, demand, action and other proceeding brought by a Third Partyunder any theory of liability (regardless of whether such action has any factual basis) concerningLicensor’s breach of any representation or obligation under this License Agreement, except to theextent arising from the negligence or willful misconduct of any Licensee Indemnitee. or the breachof any representation or warranty made by Licensee pursuant to Section 10.2. Licensor’s liabilityto Licensee under this Section 14.2 shall not be offset or reduced by Licensor’s costs to defend orsettle any claim, demand, action, or other proceeding entitled to indemnification under thisSection 14.2.     14.3 Indemnification Procedure. Each Licensor Indemnitee or Licensee Indemnitee, asthe case may be, entitled to indemnification pursuant to this Section 14 will (i) provide theindemnifying Party with prompt written notice of any such claim for which indemnification is soughtunder Section 14.1 or 14.2 of this License Agreement, as the case may be; (ii) cooperate fully withLicensee in such defense; and (iii) permit the indemnifying Party to conduct and control suchdefense and, subject to Section 9.3, the disposition of such claim (including all decisionsrelative to litigation, appeal, and settlement) with attorneys reasonably acceptable to the Partyfor whom indemnification is provided.**15.****Injunctive Relief**. Notwithstanding anything to the contrary contained in this LicenseAgreement, each Party acknowledges and agrees that a breach by it (or any of its Affiliates) of anyof the provisions of this License Agreement would cause irreparable injury to the other Party whichwould not be adequately compensated by money damages. Accordingly, in addition to any and allother rights and remedies existing, the aggrieved Party and/or its successors or assigns shall beentitled to obtain an injunction, specific performance or other appropriate equitable relief uponapplication to any court of competent jurisdiction in order to enforce or prevent any breach orthreatened breach of this License Agreement, in each case without the requirement of posting a bondor proving actual damages.**16.****Attorneys’ Fees****.**The prevailing Party in any legal action brought by one Party againstthe other Party arising out of this License Agreement, will be entitled, in addition to any otherrights it may have, to reimbursement of its costs and expenses associated with such legal action,including litigation and court costs and reasonable attorneys’ fees.**17. ****Miscellaneous Provisions****.**17.1 Notices. Any notice, request, demand other communication required or permittedhereunder shall be in writing and shall be deemed to have been given (i) if delivered or sent byfacsimile transmission, upon acknowledgment of receipt by the recipient, (ii) if sent by anationally recognized overnight courier, properly addressed with postage prepaid, on the nextbusiness day (or Saturday if sent for Saturday delivery) or (iii) if sent by registered orcertified [ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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 mail, upon the sooner of receipt or the expiration of three (3) days after deposit inUnited States post office facilities properly addressed with postage prepaid. All notices will besent to the addresses set forth below or to such other address as such Party may designate bynotice to each other Party hereunder:If to Licensor:Inverness Medical Innovations, Inc.