OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE CHIRON
PATENT RIGHTS OR ANY LICENSE GRANTED BY CHIRON HEREUNDER, OR WITH RESPECT TO ANY
PRODUCTS OR SERVICES OF LICENSEE.
FURTHERMORE, NOTHING IN THIS AGREEMENT SHALL
BE CONSTRUED AS A WARRANTY THAT ANY PATENT OR OTHER PROPRIETARY RIGHTS INCLUDED
IN THE CHIRON PATENT RIGHTS ARE VALID OR ENFORCEABLE OR THAT LICENSEE'S USE OF
THE CHIRON PATENT RIGHTS CONTEMPLATED HEREUNDER DOES NOT INFRINGE ANY PATENT
RIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
5.4.
PATENT MATTERS.
CHIRON SHALL HAVE THE EXCLUSIVE RIGHT TO TAKE
ACTION AGAINST ANY INFRINGEMENT OF ANY OF THE CHIRON PATENT RIGHTS, IN ITS SOLE
DISCRETION.
LICENSEE SHALL COOPERATE REASONABLY IN ANY ACTION CHIRON MAY TAKE
AGAINST ANY SUCH INFRINGEMENT, UPON CHIRON'S REQUEST AND AT CHIRON'S EXPENSE.
6.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR OTHERWISE, EXCEPT WITH RESPECT TO
A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, NEITHER PARTY SHALL BE
LIABLE TO THE OTHER WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER
ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY
FOR ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES.
7.
INDEMNITY
7.1.
LICENSEE INDEMNITY. SUBJECT TO SECTION 7.2, LICENSEE SHALL
INDEMNIFY, DEFEND AND HOLD HARMLESS CHIRON AND ITS AFFILIATES AND THE OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES OF CHIRON AND ITS AFFILIATES
FROM AND AGAINST ANY AND ALL CLAIMS, THREATENED CLAIMS, DAMAGES, LOSSES, SUITS,
PROCEEDINGS OR LIABILITIES OF ANY KIND ("CLAIMS") ARISING OUT OF OR RELATING TO
LICENSEE'S MANUFACTURE, USE, SALE, OFFERING FOR SALE, IMPORTATION OR EXPORTATION
OF IDENTIFIED PRODUCTS OR TO ITS USE OTHERWISE OF THE CHIRON PATENT RIGHTS,
INCLUDING CLAIMS BASED ON PRODUCT LIABILITY OR INFRINGEMENT OF THIRD PARTY
PATENT OR INTELLECTUAL PROPERTY RIGHTS.
7.2.
INDEMNIFICATION PROCEDURES. CHIRON SHALL NOTIFY LICENSEE IN WRITING
PROMPTLY UPON BECOMING AWARE OF ANY CLAIM TO WHICH SUCH INDEMNIFICATION MAY
APPLY.
LICENSEE SHALL BE RELIEVED OF ITS OBLIGATION OF INDEMNIFICATION TO THE
EXTENT, AND ONLY TO THE EXTENT, LICENSEE IS PREJUDICED BY ANY FAILURE OF CHIRON
TO PROVIDE LICENSEE WITH THE FOREGOING NOTICE OF ANY SUCH CLAIM WITHIN A
REASONABLE PERIOD OF TIME.
LICENSEE SHALL HAVE THE RIGHT TO ASSUME AND CONTROL
THE DEFENSE OF THE CLAIM AT ITS OWN EXPENSE.
IF THE RIGHT TO ASSUME AND HAVE
SOLE CONTROL OF THE DEFENSE IS EXERCISED BY LICENSEE, CHIRON SHALL HAVE THE
RIGHT TO PARTICIPATE IN, BUT NOT CONTROL, SUCH DEFENSE AT ITS OWN EXPENSE AND
LICENSEE'S INDEMNITY OBLIGATIONS SHALL BE DEEMED NOT TO
12
INCLUDE ATTORNEYS' FEES AND LITIGATION EXPENSES INCURRED BY CHIRON AFTER THE
ASSUMPTION OF THE DEFENSE BY LICENSEE.
IF LICENSEE DOES NOT ASSUME THE DEFENSE
OF THE CLAIM, CHIRON MAY DEFEND THE CLAIM AT LICENSEE'S EXPENSE BUT SHALL HAVE
NO OBLIGATION TO DO SO. CHIRON WILL NOT SETTLE OR COMPROMISE THE CLAIM WITHOUT
THE PRIOR WRITTEN CONSENT OF LICENSEE, AND LICENSEE WILL NOT SETTLE OR
COMPROMISE THE CLAIM IN ANY MANNER WHICH WOULD HAVE AN ADVERSE EFFECT ON CHIRON
WITHOUT THE CONSENT OF CHIRON, WHICH CONSENT, IN