provide 3F with
any compensation or portion of any recovery in connection with any litigation
initiated by Heartport, Inc., or its successor or assignee, in accordance with
Section 5.4 of the Heartport License.
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7.7
IN NO EVENT SHALL ANY AMOUNTS PURSUANT TO SECTIONS 7.4 AND/OR 7.5 BE
PAYABLE BY EDWARDS TO 3F BEFORE THIRTY (30) DAYS AFTER EDWARDS ACTUALLY RECEIVES
PAYMENT OF SUCH AMOUNTS FROM THE THIRD PARTY.
8.
REPRESENTATIONS AND WARRANTIES.
8.1
EDWARDS HEREBY REPRESENTS AND WARRANTS TO 3F THAT
(i)
it has all of the requisite power and
authority to enter into this Agreement and to perform its obligations hereunder
and that this Agreement has been duly and validly authorized, executed, and
delivered by Edwards; and
(ii)
it is the owner of, or has the exclusive
license to, the patents and patent applications subject to the Agreement and
that it has the entire right to enter into these licenses.
8.2
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1 AND TO THE EXTENT THAT
EDWARDS PROVIDES NOTICE IN ACCORDANCE WITH SECTION 3.1, EDWARDS DOES NOT MAKE,
AND THERE ARE NO, WARRANTIES, REPRESENTATIONS, OR CONDITIONS, EXPRESS OR
IMPLIED, STATUTORY OR OTHERWISE RELATING TO THE LICENSED PATENTS OR SUBLICENSED
PATENTS, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS OR WARRANTIES OF
VALIDITY, ENFORCEABILITY, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR
PURPOSE.
8.3
3F HEREBY REPRESENTS AND WARRANTS TO EDWARDS THAT IT HAS ALL OF THE
REQUISITE POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND THAT THIS
AGREEMENT HAS BEEN DULY AND VALIDLY AUTHORIZED, EXECUTED, AND DELIVERED BY 3F.
9.
TERM AND TERMINATION.
9.1
THE TERM OF THIS AGREEMENT SHALL COMMENCE ON THE EFFECTIVE DATE AND,
SUBJECT TO EARLIER TERMINATION AS PROVIDED HEREIN, SHALL CONTINUE TO THE DATE OF
EXPIRATION OF THE LAST TO EXPIRE OF ANY LICENSED PATENT OR SUBLICENSED PATENT
COVERING ANY LICENSED PRODUCT.
9.2
EITHER PARTY MAY TERMINATE THIS AGREEMENT FOR A MATERIAL BREACH BY
THE OTHER PARTY THAT REMAINS UNCURED FOR NINETY (90) DAYS FOLLOWING NOTICE TO
THE BREACHING PARTY EXCEPT FOR NON-PAYMENT OF ROYALTIES FOR WHICH 3F SHALL HAVE
FORTY-FIVE (45) DAYS TO CURE SUCH NONPAYMENT BREACH.
9.3
THIS AGREEMENT, INCLUDING ALL LICENSES AND SUBLICENSES HEREIN, SHALL
AUTOMATICALLY AND IMMEDIATELY TERMINATE, WITHOUT ANY FURTHER ACTION OR NOTICE BY
EDWARDS, IN THE EVENT THAT 3F IS OR BECOMES INSOLVENT.
FOR PURPOSES OF THIS
AGREEMENT, THE TERM "INSOLVENT" SHALL MEAN 3F SHALL BE DEEMED "INSOLVENT" IF IT
IS UNABLE TO PAY ITS DEBTS AND OBLIGATIONS AS AND WHEN THEY COME DUE..
8
10.
NOTICES.
Any notice which is required or permitted to be given to a Party pursuant to
this Agreement shall be deemed to have been given only if such notice is reduced
to writing and (i) delivered personally, (ii) sent by reputable overnight
courier service for next business day delivery to the person in question a the
address given below, or (iii) sent by facsimile machine (with proof transmission
capability) to the fax number set forth below, with a hard copy to be sent by
first class