AND THE PERFORMANCE OF THE TRANSACTION CONTEMPLATED HEREUNDER;
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4.6.3.
THIS AGREEMENT IS, AND SUCH OTHER TRANSACTIONS WILL
BE, VALID AND BINDING OBLIGATIONS OF EACH PARTY ENFORCEABLE IN ACCORDANCE WITH
THEIR RESPECTIVE TERMS; AND
4.6.4.
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
AGREEMENT AND THE CONSUMMATION OF TRANSACTIONS CONTEMPLATED HEREBY DO NOT AND
WILL NOT VIOLATE THE PROVISIONS OF ANY PARTY'S CERTIFICATE OF INCORPORATION OR
BYLAWS OR SIMILAR TYPE DOCUMENTS OR THE PROVISIONS OF ANY NOTE, INDENTURE,
LEASE, LICENSE PERMIT OR OTHER INSTRUMENT OR OBLIGATION OR VIOLATE ANY LAW,
ORDER, RULE OR REGULATION APPLICABLE TO IT.
4.7.
NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS A WARRANTY OR
REPRESENTATION BY GEHC AS TO THE VALIDITY OF ANY GEHC LICENSED PATENT OR THAT
AI-700 IS FREE FROM INFRINGEMENT OF DOMESTIC OR FOREIGN PATENTS OR OTHER
PROPRIETARY INTERESTS OF OTHER PARTIES. GEHC IS LICENSING THE GEHC LICENSED
PATENTS TO ACUS ON AN "AS IS" BASIS.
GEHC MAKES NO WARRANTIES EITHER EXPRESS OR
IMPLIED OF ANY KIND, AND HEREBY EXPRESSLY DISCLAIMS ANY WARRANTIES,
REPRESENTATIONS OR GUARANTEES OF ANY KIND AS TO THE GEHC LICENSED PATENTS, THE
SUBJECT OF ANY LICENSE HEREUNDER AND/OR ANY PRODUCTS, INCLUDING BUT NOT LIMITED
TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS, ADEQUACY OR SUITABILITY FOR A
PARTICULAR PURPOSE, USE OR RESULT, AND ANY WARRANTIES OF FREEDOM OF INFRINGEMENT
OF ANY PATENTS, COPYRIGHTS, TRADE SECRETS OR OTHER PROPRIETARY RIGHTS.
NEITHER
GEHC, NOR ANY EMPLOYEE OR AGENT OF GEHC, SHALL HAVE ANY LIABILITY TO ACUS, ITS
AFFILIATES, OR SUBLICENSEES, OR ANY OTHER PERSON ARISING OUT OF THE USE OF GEHC
LICENSED PATENTS OR PRODUCTS INCLUDING BUT NOT LIMITED TO THE LACK OF
MERCHANTABILITY, INADEQUACY OR UNSUITABILITY OF THE GEHC LICENSED PATENTS OR
PRODUCTS FOR ANY PARTICULAR PURPOSE OR TO PRODUCE ANY PARTICULAR RESULT, OR FOR
ANY LATENT DEFECTS THEREIN.
4.8.
ACUS SHALL INDEMNIFY AND HOLD GEHC AND ITS AFFILIATES HARMLESS
AGAINST ANY AND ALL THIRD-PARTY ACTIONS, SUITS, CLAIMS, DEMANDS, PROSECUTIONS,
LIABILITIES, COSTS, EXPENSES, DAMAGES, DEFICIENCIES, LOSS OR OBLIGATIONS
(INCLUDING REASONABLE ATTORNEYS' FEES) BASED ON OR ARISING OUT OF THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, (I) THE DEVELOPMENT, MANUFACTURE,
PACKAGING, USE, OR SALE OF AI-700 (II) THE PRACTICE OF THE GEHC LICENSED PATENTS
BY ACUS, ITS AFFILIATES, ITS SUBLICENSEES OR ITS (OR THEIR) CUSTOMERS AND (III)
ANY REPRESENTATION MADE OR WARRANTY GIVEN BY ACUS, ITS AFFILIATES WITH RESPECT
TO GEHC LICENSED PATENTS OR AI-700.
4.9.
ACUS SHALL MAINTAIN, DURING THE TERM OF THIS AGREEMENT, COMMERCIAL
GENERAL LIABILITY INSURANCE, INCLUDING PRODUCT LIABILITY INSURANCE, WITH
REPUTABLE AND FINANCIALLY SECURE INSURANCE CARRIERS, ON COMMERCIALLY REASONABLE
AND PRUDENT TERMS AND LIMITS.
4.10.
ACUS AND ITS CURRENT AND FUTURE AFFILIATES SHALL NOT DIRECTLY OR
INDIRECTLY CHALLENGE OR INDUCE ANY THIRD PARTY TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THE GEHC LICENSED PATENTS, OR ANY PATENT CLAIM(S) THEREIN, OR
INITIATE OR PARTICIPATE IN ANY RE-EXAMINATION OR OTHER PROCEEDING RELATED TO THE
VALIDITY, ENFORCEABILITY OR PATENTABILITY OF ANY
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CLAIM OF THE GEHC LICENSED PATENTS BEFORE ANY TRIBUNAL OR PATENT OFFICE.
THIS
SECTION SHALL NOT PROHIBIT ACUS AND ITS