TO THE EXTENT PERMITTED BY ANY
APPLICABLE LAW OR STATUTE, THE SALE TO SUCH END-USER OF SUCH LICENSED PRODUCT.
7.4
ADDITIONAL LABEL LICENSES.
IN ADDITION TO
THE LEGEND PROVIDED FOR IN SECTION 7.1 ABOVE, HOLOGIC OR ESC MAY REQUEST
ADDITIONAL OR REVISED LEGENDS ON LICENSED PRODUCTS MADE BY OR FOR ESC OR ITS
AFFILIATES.
THE PARTIES SHALL NEGOTIATE IN GOOD FAITH CONCERNING THE NEED FOR
AND/OR THE CONTENT OF ANY SUCH ADDITIONAL LEGENDS.
8.
Warranties and Disclaimer
8.1
ESC WARRANTY.
ESC REPRESENTS AND WARRANTS
THAT ALL PERSONS EMPLOYED BY, OR SERVING AS CONSULTANTS TO, ESC WHO SHALL HAVE
ACCESS TO HOLOGIC PATENT RIGHTS SHALL HAVE EXECUTED A WRITTEN AGREEMENT
REQUIRING EACH SUCH PERSON TO ASSIGN TO ESC ALL OF SUCH PERSON'S RIGHT, TITLE
AND INTEREST IN AND TO ANY INTELLECTUAL PROPERTY RIGHTS IN IMPROVEMENTS PRIOR TO
HAVING ACCESS TO HOLOGIC PATENT RIGHTS.
IN ADDITION, ESC REPRESENTS AND
WARRANTS THAT THE ESC IMPROVEMENTS IDENTIFIED IN SECTION 2.4 OF THIS AGREEMENT
WILL REMAIN FREE AND CLEAR OF ALL LIENS, CLAIMS, ENCUMBRANCES OR DEMANDS OF
THIRD PARTIES, INCLUDING MY CLAIMS BY THIRD PARTIES OF ANY RIGHT, TITLE OR
INTEREST IN OR TO SUCH IMPROVEMENTS, AND WILL NOT DURING THE TERM ASSIGN,
LICENSE OR TRANSFER, ANY OF ITS RIGHTS, TITLE OR INTEREST IN SUCH IMPROVEMENTS
TO A THIRD PARTY, AND WILL NOT DURING THE TERM ENTER INTO ANY AGREEMENT IN
CONFLICT WITH THIS AGREEMENT
8.2
DISCLAIMER.
EXCEPT AS EXPRESSLY PROVIDED
HEREIN:
(I) ESC AGREES THAT THE HOLOGIC LICENSE TO ESC TO THE HOLOGIC PATENT
RIGHTS ARE GRANTED "AS IS," AND (II) NEITHER PARTY, NOR THEIR RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES AND AFFILIATES MAKE ANY REPRESENTATIONS OR EXTEND
ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT, TITLE, VALIDITY OF PATENT RIGHTS CLAMS, ISSUED OR PENDING, AND
THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE.
9.
Confidentiality-Publicity
9.1
EACH PARTY AGREES THAT ANY FINANCIAL, LEGAL
OR BUSINESS INFORMATION OR ANY TECHNICAL INFORMATION DISCLOSED TO IT (THE
"RECEIVING PARTY") BY THE OTHER (THE "DISCLOSING PARTY") IN CONNECTION WITH THIS
AGREEMENT SHALL BE CONSIDERED CONFIDENTIAL AND PROPRIETARY AND
10
THE RECEIVING PARTY SHALL NOT DISCLOSE SAME TO ANY THIRD PARTY AND SHALL HOLD IT
IN CONFIDENCE FOR A PERIOD OF FIVE (5) YEARS AND WILL NOT USE IT OTHER THAN AS
PERMITTED UNDER THIS AGREEMENT PROVIDED, HOWEVER, THAT ANY INFORMATION, KNOW-HOW
OR DATA WHICH IS ORALLY DISCLOSED TO THE RECEIVING PARTY SHALL NOT BE CONSIDERED
CONFIDENTIAL AND PROPRIETARY UNLESS SUCH ORAL DISCLOSURE IS REDUCED TO WRITING
AND GIVEN TO THE RECEIVING PARTY IN WRITTEN FORM WITHIN THIRTY (30) DAYS AFTER
ORAL DISCLOSURE THEREOF.
SUCH CONFIDENTIAL AND PROPRIETARY INFORMATION SHALL
INCLUDE MARKETING AND SALES INFORMATION, COMMERCIALIZATION PLANS AND STRATEGIES,
RESEARCH AND DEVELOPMENT WORK PLANS, AND TECHNICAL INFORMATION SUCH AS PATENT
APPLICATIONS, INVENTIONS, TRADE SECRETS, SYSTEMS, METHODS, APPARATUS, DESIGNS,
TANGIBLE MATERIAL, ORGANISMS AND PRODUCTS AND DERIVATIVES THEREOF.
9.2
THE ABOVE OBLIGATIONS OF CONFIDENTIALITY
SHALL NOT BE APPLICABLE TO THE EXTENT:
(A)
SUCH