Technology or the Licensed
Patents and known to Licensor.
(iv) Licensor has recently become aware of European Patent EP-B-231904
of Milupa (the "Milupa Patent"), which is currently under study. With the
exception of the Milupa Patent, at the time of this Agreement, Licensor has no
actual knowledge (A) of the existence of other patents which would be infringed
by the commercial exploitation by Licensee or its Affiliates of the Technology,
the Martek Product or the Licensed Patents or (B) that the Technology, the
Martek Product or the Licensed Patents are being infringed by Third Parties.
(v) Licensor is the owner of the Technology.
(vi) Licensor shall in good faith attempt to comply with all
environmental laws and regulations in the course of its development work which
is under its direct control, will in good faith attempt to
*CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
- 15 -
develop commercial processes which can be operated under applicable
environmental laws, regulations, and permits in production and will in good
faith attempt to institute management systems and procedures to ensure good
environmental practices.
SECTION 5.2. DISCLAIMERS. (i) LICENSOR HEREBY DISCLAIMS ANY WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE RELATING TO THE MARTEK
PRODUCT OR THE TECHNOLOGY AND ANY OTHER WARRANTY OR WARRANTIES RELATING THERETO
AND NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. LICENSOR MAKES NO REPRESENTATIONS
OR WARRANTIES AND HAS NO DUTY TO ENSURE THAT THE TECHNOLOGY OR THE MARTEK
PRODUCT IS USABLE WITH THE MEAD JOHNSON PRODUCT OR THAT THE TECHNOLOGY OR THE
MARTEK PRODUCT ARE SAFE OR CAN BE INCORPORATED SAFELY INTO THE MEAD JOHNSON
PRODUCT. IT IS HEREBY ACKNOWLEDGED AND AGREED THAT IT SHALL BE LICENSEE'S RIGHT
AND OBLIGATION TO DETERMINE THE SAFETY AND UTILITY OF THE MARTEK PRODUCT AS IT
RELATES TO INFANT FORMULA PRODUCTS.
(ii) LICENSOR HEREBY DISCLAIMS ANY WARRANTY THAT THE TECHNOLOGY, THE
MARTEK PRODUCT OR THE LICENSED PATENTS ARE FREE FROM INFRINGEMENT BY THIRD
PARTIES, EXCEPT AS SET FORTH IN SUBSECTION 5.1(IV) OF THIS AGREEMENT. LICENSOR
FURTHER DISCLAIMS ANY WARRANTY RELATING TO THE PATENTABILITY OF, OR THE VALIDITY
OF ANY PATENTS RELATING TO, THE TECHNOLOGY OR THE MARTEK PRODUCT AND MAKES NO
REPRESENTATIONS WHATSOEVER WITH REGARD TO THE SCOPE OF ANY SUCH PATENTS OR,
EXCEPT AS SET FORTH IN SUBSECTION 5.1(IV) OF THIS AGREEMENT, THAT SUCH PATENTS
MAY BE COMMERCIALLY EXPLOITED WITHOUT INFRINGING OTHER PATENTS.
(iii) LICENSOR DISCLAIMS AND SHALL NOT BE LIABLE FOR ANY DAMAGES OF
ANY NATURE RESULTING OR ARISING FROM OR RELATING TO (A) THE USE, MANUFACTURE,
DISTRIBUTION, MARKETING, OR SALE BY LICENSEE, ITS AFFILIATES OR ANY THIRD PARTY
OF THE TECHNOLOGY, THE MARTEK PRODUCT OR THE MEAD JOHNSON PRODUCT, OR (B) ANY
IMPROVEMENTS OR MODIFICATIONS TO THE TECHNOLOGY, THE MARTEK PRODUCT OR THE MEAD
JOHNSON PRODUCT WHICH ARE NOT MADE BY AND PROPRIETARY TO LICENSOR, UNLESS THE
LIABILITY RESULTS FROM (X) LICENSOR'S FAILURE TO PERFORM ITS OBLIGATIONS UNDER
THIS AGREEMENT OR (Y) IF LICENSOR ELECTS TO MANUFACTURE THE MARTEK PRODUCT,
LICENSOR'S FAILURE TO MANUFACTURE