MAY BE
RETAINED BY GENENTECH'S LEGAL DEPARTMENT TO CONFIRM COMPLIANCE WITH THE NON-USE
AND NON-DISCLOSURE PROVISIONS OF THIS AGREEMENT).
(F)
OTHER.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TERMINATION OF THIS
AGREEMENT SHALL NOT AFFECT THE RIGHTS AND OBLIGATIONS OF THE PARTIES THAT
ACCRUED PRIOR TO THE EFFECTIVE DATE OF SUCH TERMINATION.
ANY RIGHT THAT A PARTY
HAS TO TERMINATE THIS AGREEMENT, AND ANY RIGHTS THAT SUCH PARTY HAS UNDER THIS
SECTION 10.5, SHALL BE IN ADDITION TO AND NOT IN LIEU OF ALL OTHER RIGHTS OR
REMEDIES THAT SUCH PARTY MAY HAVE AT LAW OR IN EQUITY OR OTHERWISE, INCLUDING
WITHOUT LIMITATION RIGHTS UNDER THE UNITED STATES BANKRUPTCY CODE.
(G)
SURVIVAL.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE PROVISIONS OF
SECTIONS 5.4, 5.5 AND 7.5 AND ARTICLE 9, ARTICLE 10, ARTICLE 11, ARTICLE 12,
ARTICLE 13, ARTICLE 14 AND ARTICLE 15 (AS APPLICABLE) SHALL SURVIVE ANY
TERMINATION OR EXPIRATION OF THIS AGREEMENT IN PERPETUITY.
IN ADDITION, EXCEPT
AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE PROVISIONS OF SECTION 7.3(B) SHALL
SURVIVE EXPIRATION, EARLY TERMINATION BY GENENTECH PURSUANT TO SECTION 10.3(A)
OR EARLY TERMINATION PURSUANT TO SECTION 10.4, OF THIS AGREEMENT.
FURTHER,
ARTICLE 8 SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT IN
PERPETUITY EXCEPT AS FOLLOWS:
SECTIONS 8.3(B), 8.6(B) AND 8.9 ONLY SURVIVE
EARLY TERMINATION BY GENENTECH PURSUANT TO SECTION 10.3(A); SECTIONS 8.6(E) AND
8.6(F) ONLY SURVIVE WITH RESPECT TO JOINT COLLABORATION TECHNOLOGY; AND
SECTION 8.7 DOES NOT SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT.
29
ARTICLE 11
REPRESENTATIONS AND WARRANTIES
11.1
Mutual Representations and Warranties.
Each of the Parties hereby
represents, warrants and covenants as follows:
(A)
THIS AGREEMENT IS A LEGAL AND VALID OBLIGATION BINDING UPON SUCH PARTY AND
ENFORCEABLE IN ACCORDANCE WITH ITS TERMS.
THE EXECUTION, DELIVERY AND
PERFORMANCE OF THE AGREEMENT BY SUCH PARTY DOES NOT CONFLICT WITH ANY AGREEMENT,
INSTRUMENT OR UNDERSTANDING, ORAL OR WRITTEN, TO WHICH IT IS A PARTY OR BY WHICH
IT IS BOUND, NOR VIOLATE ANY LAW OR REGULATION OF ANY COURT, GOVERNMENTAL BODY
OR ADMINISTRATIVE OR OTHER AGENCY HAVING JURISDICTION OVER IT.
(B)
EACH PARTY HAS NOT, AND DURING THE TERM OF THE AGREEMENT WILL NOT, GRANT OR
OTHERWISE DISPOSE OF ANY RIGHT TO ANY THIRD PARTY RELATING TO ITS RESPECTIVE
TECHNOLOGY IN THE FIELD THAT CONFLICTS WITH, OR ADVERSELY AFFECTS, THE RIGHTS
GRANTED TO THE OTHER PARTY HEREUNDER.
(C)
EACH PARTY CONTROLS ALL OF THE RIGHTS, TITLE AND INTEREST IN AND TO ITS
INVENTIONS (WHETHER PATENTABLE OR NOT), PATENTS AND KNOW-HOW WITHIN ITS
RESPECTIVE CONTRIBUTED TECHNOLOGY, IN EACH CASE, THAT EXIST AS OF THE EFFECTIVE
DATE.
(D)
AFTER THE EFFECTIVE DATE, EACH PARTY SHALL DISCLOSE TO THE OTHER PARTY ANY
THIRD PARTY INTELLECTUAL PROPERTY OF WHICH IT BECOMES AWARE THAT WOULD BE
INFRINGED BY THE DISCOVERY, DEVELOPMENT AND/OR COMMERCIALIZATION OF COMPOUNDS
PURSUANT TO THIS AGREEMENT.
GENENTECH'S OBLIGATIONS UNDER THIS SECTION 11.1(D)
SHALL TERMINATE AT THE END OF THE RESEARCH TERM, AND ARRAY'S OBLIGATIONS UNDER
THIS SECTION 11.1(D) SHALL CONTINUE FOR THE TERM OF THIS AGREEMENT.
11.2
Array Representations