OF THE INTELLECTUAL PROPERTY
OF ANY THIRD PARTY EXCEPT AS APPROVED IN WRITING BY PONIARD.
9.2
PONIARD'S REPRESENTATIONS AND WARRANTIES
PONIARD hereby represents and warrants to Heraeus as follows:
(A)
PONIARD HAS BEEN DULY INCORPORATED AND ORGANIZED AND IS VALIDLY
SUBSISTING AND IN GOOD STANDING IN ITS JURISDICTION OF INCORPORATION, HAS THE
CORPORATE POWER TO ENTER THIS AGREEMENT AND TO CARRY ON THE BUSINESS AS NOW
BEING CONDUCTED BY IT;
(B)
PONIARD HAS OBTAINED AND SHALL MAINTAIN IN FULL FORCE AND EFFECT
ALL APPLICABLE LICENSES, PERMITS, CERTIFICATES, AUTHORIZATIONS OR APPROVALS
REQUIRED TO BE MAINTAINED BY PONIARD IN ORDER FOR PONIARD TO CONDUCT ITS
BUSINESS;
(C)
PONIARD SHALL BE SOLELY RESPONSIBLE THAT THE PICOPLATIN API IS FIT
FOR USE AS AN ACTIVE PHARMACEUTICAL INGREDIENT AND THAT PICOPLATIN API WHICH HAS
BEEN MANUFACTURED BY HERAEUS IN ACCORDANCE WITH THE MASTER BATCH RECORD AND
CONFORMING TO THE SPECIFICATIONS AND DELIVERED TO
15
PONIARD WILL BE USED FOR PICOPLATIN PROGRAM DEVELOPMENT ACTIVITIES AND CLINICAL
STUDIES AND COMMERCIAL SALE OF PICOPLATIN DRUG PRODUCT;
(D)
PONIARD SHALL BE RESPONSIBLE THAT ONLY SUCH
PICOPLATIN API THAT IS IN CONFORMANCE WITH THE SPECIFICATIONS WILL BE USED FOR
THE MANUFACTURE OF FINAL DOSAGE PHARMACEUTICAL PRODUCTS;
(E)
TO THE BEST OF PONIARD'S KNOWLEDGE, THE
PONIARD KNOW HOW AND/OR PONIARD PATENT RIGHTS AS WELL AS ANY AND ALL
INSTRUCTIONS OF PONIARD RELATING TO THE DEVELOPMENT, MANUFACTURE AND DELIVERY OF
PICOPLATIN API DO NOT INFRINGE ANY THIRD PARTY PROPERTY RIGHTS. SHOULD FURTHER
INSTRUCTIONS OF PONIARD CAUSE HERAEUS TO INFRINGE ANY THIRD PARTY PROPERTY
RIGHTS, PONIARD SHALL INDEMNIFY HERAEUS AS SET FORTH IN 10.1 (A) (VI).
9.3
NO OTHER WARRANTIES
THE WARRANTIES SET OUT IN SECTIONS 6.1, 9.1 AND 9.2 ARE THE SOLE WARRANTIES MADE
BY EITHER PARTY TO THE OTHER, AND THERE ARE NO OTHER WARRANTIES, REPRESENTATIONS
OR GUARANTEES OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED, REGARDING THE
LABELED PRODUCT OR ANY OTHER MATERIALS OR SERVICES TO BE SUPPLIED HEREUNDER,
INCLUDING, BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Heraeus makes no
representation, warranty or guarantee of any kind, express or implied, with
respect to the Specifications, any Validation Protocol or any other analytical
procedures or processes, and in particular, Heraeus makes no representation,
warranty or guarantee that such Specifications, protocols, procedures or
processes shall be fit for any particular purpose, and PONIARD shall be
obligated to satisfy itself that such Specifications, protocols, procedures and
processes are suitable for and compatible with PONIARD's intended purpose of
use.
PONIARD hereby acknowledges that it has been advised by Heraeus to
undertake its own due diligence with respect to the Specifications, protocols,
procedures and processes provided, specified or agreed to by Heraeus under this
Agreement.
ARTICLE 10 INDEMNIFICATION
10.1
SCOPE OF INDEMNIFICATION
(A)
PONIARD SHALL DEFEND, HOLD HARMLESS AND
INDEMNIFY HERAEUS AND ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES AND AGENTS ("HERAEUS INDEMNIFIED PARTIES"), FROM AND AGAINST ALL
ACTIONS, CLAIMS, DEMANDS, PROCEEDINGS, SUITS, LOSSES, DAMAGES, COSTS AND
EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS'