REQUIRED, AND TO ENSURE THAT THESE AGREEMENTS WILL REMAIN
IN FORCE TO ALLOW IDI TO EXERCISE AND BENEFIT FROM ALL RIGHTS GRANTED TO IDI
UNDER THIS AGREEMENT.
10.3.
DISCLAIMERS.
EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY SET FORTH IN
THIS AGREEMENT, NOTHING CONTAINED IN THIS AGREEMENT WILL BE CONSTRUED AS:
10.3.1.
A WARRANTY OR REPRESENTATION BY EITHER PARTY AS TO THE VALIDITY,
ENFORCEABILITY, OR SCOPE OF ANY PATENT;
10.3.2.
A WARRANTY OR REPRESENTATION THAT ANY MANUFACTURE, SALE, OFFER FOR
SALE, LEASE, IMPORT, USE OR OTHER DISPOSITION OF ANY PRODUCTS HEREUNDER WILL BE
FREE FROM INFRINGEMENT OF PATENT, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY
RIGHTS OF THIRD PARTIES;
10.3.3.
A WARRANTY OR REPRESENTATION BY EITHER PARTY WITH RESPECT TO THEIR
ENFORCEMENT OF ANY PATENT INCLUDING WITHOUT LIMITATION THE PROSECUTION, DEFENSE
OR CONDUCT OF ANY ACTION OR SUIT CONCERNING INFRINGEMENT OF ANY SUCH PATENT;
10.3.4.
CONFERRING ANY RIGHT TO USE IN ADVERTISING, PUBLICITY, OR OTHERWISE,
ANY TRADEMARK, TRADE NAME OR NAMES, OR ANY CONTRACTION, ABBREVIATION OR
SIMULATION THEREOF, OF EITHER PARTY;
10.3.5.
AN OBLIGATION UPON EITHER PARTY TO MAKE ANY DETERMINATION AS TO THE
APPLICABILITY OF ANY OF ITS PATENTS TO ANY PRODUCT OR SERVICE;
10.3.6.
AN ADMISSION BY EITHER PARTY THAT ANY OF ITS PRODUCTS INFRINGE ANY
PATENTS OF THE OTHER PARTY; OR
The symbol [***] is used to indicate that a portion of the exhibit has been
omitted and filed separately with the commission.
Confidential treatment has
been requested with respect to the omitted portion.
9
10.3.7.
A WARRANTY OR REPRESENTATION BY EITHER PARTY WITH RESPECT TO THE
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OF ANY PRODUCTS HEREUNDER.
11.
INDEMNIFICATION; LIMITATION OF LIABILITY
11.1.
GENERAL STATEMENT REGARDING INDEMNITY.
FOR PURPOSES OF
CLARIFICATION, IT IS NOTED THAT THE PARTIES INTEND THAT SECTIONS 11.2 AND 11.3
OF THIS AGREEMENT SET FORTH THE PARTIES' INDEMNIFICATION AGREEMENTS OTHER THAN
THOSE RELATING TO INTELLECTUAL PROPERTY, THAT SECTION 11.4 SETS FORTH THE
PARTIES' INDEMNIFICATION AGREEMENTS RELATING TO INTELLECTUAL PROPERTY, AND THAT
THE INDEMNIFICATIONS SET FORTH BELOW ARE INTENDED TO BE AFFORDED NOTWITHSTANDING
ANY WARRANTY LIMITATIONS SET FORTH IN SECTION 10. FOR PURPOSES OF THIS SECTION
11, "LIABILITIES" SHALL MEAN ANY AND ALL CLAIMS MADE BY, OR JUDGMENT, DAMAGE,
LIABILITY, LOSS, COST OR OTHER EXPENSE, INCLUDING REASONABLE LEGAL FEES AND
EXPENSES RESULTING FROM ANY CLAIMS MADE BY OR PROCEEDINGS BROUGHT BY, ANY THIRD
PARTY AGAINST A PARTY AS SET FORTH IN THIS SECTION 11.
11.2.
CEPHEID'S GENERAL INDEMNITY.
SUBJECT TO THE LIMITATIONS SET FORTH
BELOW IN THIS SECTION 11, CEPHEID WILL DEFEND, INDEMNIFY AND HOLD HARMLESS IDI
AND ITS AFFILIATES AGAINST ANY LIABILITIES RESULTING FROM ANY CLAIMS MADE BY OR
PROCEEDINGS BROUGHT BY, ANY THIRD PARTY OR AFFILIATE OF CEPHEID AGAINST IDI OR
ANY OF IDI'S AFFILIATES TO THE EXTENT THAT THE CLAIM OR LIABILITIES ARISES FROM
THE FOLLOWING:
11.2.1.
CEPHEID'S NEGLIGENCE OR WILLFUL MISCONDUCT IN CONNECTION WITH ITS
ACTIVITIES UNDER THIS AGREEMENT, EXCEPT TO THE EXTENT CAUSED BY THE NEGLIGENCE
OR WILLFUL MISCONDUCT OF IDI; OR
11.2.2.
CEPHEID'S BREACH OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY