AND SHALL GIVE THE OTHER PARTY AN OPPORTUNITY TO
OBJECT TO ANY SUCH STATEMENT OR TO REQUEST CONFIDENTIAL TREATMENT THEREFORE) OR
AS NECESSARY TO ENFORCE ITS RIGHTS UNDER THIS AGREEMENT.
ADDITIONALLY, FHC
SHALL NOT MAKE ANY STATEMENT REGARDING ANY PRODUCT AFTER THE TERMINATION OF THIS
AGREEMENT THAT IS NOT EXPRESSLY PERMITTED IN THE MESSAGE.
NOTWITHSTANDING THE
PRECEDING PROVISIONS OF THIS SECTION 6(C), FHC SHALL AT ALL TIMES AFTER
TERMINATION OR EXPIRATION HAVE THE RIGHT TO CREATE MARKETING MATERIALS THAT
DESCRIBE THE ATTRIBUTES OF THE PRODUCTS VERSUS THE ATTRIBUTES OF THIRD PARTY
PRODUCTS (PROVIDED THAT SUCH INFORMATION REGARDING THE PRODUCTS SHALL BE BASED
SOLELY ON PUBLICLY AVAILABLE INFORMATION REGARDING THE PRODUCTS AND NOT BASED ON
INFORMATION OBTAINED BY FHC, OR BASED ON THE PARTIES' RELATIONSHIP, UNDER THIS
AGREEMENT OR ANY PRIOR WRITTEN AGREEMENT BETWEEN THE PARTIES).
(D)
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER FOR ANY CONTINGENT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF THE OTHER
PARTY, OR ANY LOSS OF PROFITS OR REVENUE OF THE OTHER PARTY, WHETHER ARISING IN
CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY OR OTHERWISE.
(E)
SUBJECT TO THE FOLLOWING SENTENCE, IN NO
EVENT SHALL EITHER PARTY, DIRECTLY OR INDIRECTLY, INITIATE OR PROSECUTE, OR
ASSIST OR INDUCE ANY THIRD PARTY TO INITIATE OR PROSECUTE (OTHER THAN AS
REQUIRED UNDER COURT ORDER OR LEGAL PROCESS SUCH AS A SUBPOENA), ANY CLAIM,
DEMAND, SUIT, ACTION, CAUSE OF ACTION OR OTHER ADVERSARY PROCEEDING RELATING TO
OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT, OTHER
THAN A CLAIM, DEMAND, SUIT, ACTION, CAUSE OF ACTION OR OTHER ADVERSARY
PROCEEDING TO THE EXTENT ALLEGING (1) A MATERIAL BREACH OF EXPRESS CONTRACT
UNDER THIS AGREEMENT (PROVIDED THAT IF THE ALLEGED MATERIAL BREACH IS CURABLE,
(I) THE NON-BREACHING PARTY HAS GIVEN WRITTEN NOTICE OF SUCH MATERIAL BREACH AND
THE BREACHING PARTY HAS FAILED TO REMEDY SUCH MATERIAL BREACH WITHIN THIRTY (30)
DAYS AND (II) DURING SUCH THIRTY (30) DAY CURE PERIOD, AT THE REQUEST OF THE
PARTY ALLEGEDLY IN BREACH, THE PARTIES SHALL MEET AND CONFER IN GOOD FAITH TO
DISCUSS THE GROUNDS OF THE ALLEGED BREACH), OR (2) DEFAMATION THROUGH A
STATEMENT MADE WITH "KNOWLEDGE THAT IT WAS FALSE OR WITH RECKLESS DISREGARD OF
WHETHER IT WAS FALSE OR NOT" BY ONE PARTY OF THE OTHER.
NOTHING IN THIS
SECTION 6(E) SHALL IN ANY WAY LIMIT ANY CLAIM, DEMAND, SUIT, ACTION, CAUSE OF
ACTION OR OTHER PROCEEDING (I) THAT A PARTY ("ASSERTING PARTY") MAY HAVE AGAINST
THE OTHER PARTY TO THE EXTENT RELATING TO OR ARISING AS A RESULT OF A THIRD
PARTY CLAIM, DEMAND, SUIT, ACTION, CAUSE OF ACTION OR OTHER PROCEEDING AGAINST
THE ASSERTING PARTY, PROVIDED THAT THE ASSERTING PARTY CAN PROVIDE WRITTEN
EVIDENCE OF SUCH CLAIM, DEMAND, SUIT, ACTION, CAUSE OF ACTION OR OTHER
PROCEEDING BY SUCH THIRD PARTY OR (II) THAT A PARTY MAY HAVE AGAINST A THIRD
PARTY RELATING TO A PRODUCT.
7.
TRADEMARKS.
(A)
SUBJECT TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT, BIOSITE HEREBY GRANTS TO FHC A NONEXCLUSIVE,