REPRESENTS,
WARRANTS AND COVENANTS ON BEHALF OF ITSELF AND ITS AFFILIATES THAT:
(I) IT HAS
THE LEGAL RIGHT AND POWER TO EXTEND THE RIGHTS GRANTED IN THIS AGREEMENT; (II)
IT HAS THE LEGAL POWER, AUTHORITY AND RIGHT TO ENTER INTO THIS AGREEMENT, AND TO
PERFORM ALL ITS OBLIGATIONS HEREUNDER; (III) IT HAS NOT PREVIOUSLY GRANTED, AND
DURING THE TERM OF THIS AGREEMENT WILL NOT KNOWINGLY MAKE ANY COMMITMENT OR
GRANT ANY RIGHTS WHICH IN ANY MATERIAL WAY CONFLICT WITH THE RIGHTS AND LICENSES
GRANTED HEREIN; (IV) TO THE BEST OF ITS KNOWLEDGE AS OF THE EFFECTIVE DATE,
THERE ARE NO EXISTING OR THREATENED ACTIONS, SUITS OR CLAIMS PENDING AGAINST IT
WITH RESPECT TO THE PHARMACOPEIA TECHNOLOGY; (V) TO THE BEST OF ITS KNOWLEDGE AS
OF THE EFFECTIVE DATE, IT IS NOT AWARE OF ANY EXISTING PHARMACOPEIA KNOW-HOW
WHICH IS NOT AVAILABLE FOR USE FOR ALL PURPOSES CONTEMPLATED BY THIS AGREEMENT;
AND (VI) TO THE BEST OF ITS KNOWLEDGE AS OF THE EFFECTIVE DATE, IT OWNS OR
CONTROLS ALL OF THE PHARMACOPEIA TECHNOLOGY, AND HAS THE RIGHTS TO GRANT THE
LICENSES OR SUBLICENSES GRANTED TO SPL HEREUNDER WITH RESPECT THERETO.
8.3
COMPLIANCE WITH AGREEMENT AND LAWS.
EACH
PARTY SHALL COMPLY IN ALL MATERIAL RESPECTS WITH THE TERMS OF THIS AGREEMENT AND
WITH ALL LAWS, RULES AND REGULATIONS APPLICABLE TO THE DISCOVERY, DEVELOPMENT,
MANUFACTURE, DISTRIBUTION, IMPORT AND EXPORT AND SALE OF PHARMACEUTICAL PRODUCTS
PURSUANT TO THIS AGREEMENT.
8.4
DISCLAIMER.
SPL AND PHARMACOPEIA EXPRESSLY
DISCLAIM ANY REPRESENTATION, WARRANTY OR GUARANTY THAT THE COLLABORATION WILL BE
SUCCESSFUL.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT,
PHARMACOPEIA AND SPL AND THEIR RESPECTIVE AFFILIATES MAKE NO REPRESENTATIONS AND
EXTEND NO WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH
RESPECT TO THE PHARMACOPEIA TECHNOLOGY, THE SCHERING TECHNOLOGY, THE
COLLABORATION TECHNOLOGY, LEAD COMPOUNDS, DERIVATIVE COMPOUNDS, AGREEMENT
COMPOUNDS OR AGREEMENT PRODUCTS, OR INFORMATION DISCLOSED PURSUANT TO
ARTICLE VII, AND EXPRESSLY DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, VALIDITY OF THE PHARMACOPEIA TECHNOLOGY, COLLABORATION
TECHNOLOGY OR SCHERING TECHNOLOGY (IN EACH CASE, WHETHER PATENTED OR
UNPATENTED), OR NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD
PARTIES.
ARTICLE IX
INDEMNIFICATION
9.1
INDEMNIFICATION BY SPL.
SPL SHALL
INDEMNIFY, DEFEND AND HOLD HARMLESS PHARMACOPEIA AND ITS AFFILIATES, AND EACH OF
ITS AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS (THE
"PHARMACOPEIA INDEMNITEES") FROM AND AGAINST ANY AND ALL LIABILITY, LOSS,
CLAIMS, DAMAGE, COST, AND EXPENSE (INCLUDING REASONABLE ATTORNEYS' AND
PROFESSIONALS' FEES AND OTHER EXPENSES OF LITIGATION) (COLLECTIVELY, A
"LIABILITY") ARISING OUT OF OR IN CONNECTION WITH THIRD PARTY CLAIMS RELATING TO
(I) THE DISCOVERY, DEVELOPMENT, MANUFACTURE, USE, TESTING, MARKETING, SALE OR
OTHER DISPOSITION OF AGREEMENT PRODUCTS BY OR ON BEHALF OF SPL OR ITS AFFILIATES
OR SUBLICENSEES, (II) PERFORMANCE OF THE COLLABORATION BY SPL, (III) ANY INJURY,
ILLNESS OR DISEASE SUFFERED BY ANY SPL EMPLOYEES IN CONNECTION WITH THE
PERFORMANCE OF THE COLLABORATION, (IV) THE USE OF ANY AND ALL TARGETS WITH
RESPECT TO WHICH RESEARCH ACTIVITIES ARE CONDUCTED IN THE COLLABORATION,
INCLUDING WITHOUT LIMITATION CLAIMS IN