THE BREACH IN
REASONABLE DETAIL AND THE OTHER PARTY MUST HAVE FAILED TO CURE SUCH ALLEGED
BREACH
45 DAYS AFTER RECEIPT OF THE NOTICE.
9.3.
SURVIVAL OF OBLIGATIONS AND CERTAIN RIGHTS.
9.3.1.
UPON ANY TERMINATION OF THIS AGREEMENT, BY EXPIRATION OF THE TERM
OR OTHERWISE, NEITHER PARTY WILL BE RELIEVED OF ANY OBLIGATIONS INCURRED PRIOR
TO SUCH TERMINATION.
DESPITE ANY TERMINATION OF THIS AGREEMENT, SECTIONS 1 (TO
EXTENT THAT A DEFINITION IS REQUIRED TO INTERPRET AN OPERATIVE SECTION OF THIS
AGREEMENT), SECTIONS 5, 7, 8, 9.3, 10, 11, AND 12, AND TO THE EXTENT APPLICABLE,
THE EXHIBITS TO THIS AGREEMENT, AS WELL AS ANY OTHER PROVISIONS THAT BY THEIR
NATURE ARE INTENDED TO SURVIVE ANY TERMINATION, WILL SURVIVE AND CONTINUE TO BE
ENFORCEABLE.
9.3.2.
IDI SHALL BE PERMITTED TO SELL ANY SMART CYCLER INSTRUMENTS IT HAS
ON HAND AFTER THE TERMINATION OF THIS AGREEMENT.
10.
REPRESENTATIONS, WARRANTIES AND COVENANTS; DISCLAIMERS
10.1.
REPRESENTATIONS AND WARRANTIES OF BOTH PARTIES.
EACH PARTY
REPRESENTS, WARRANTS AND COVENANTS TO THE OTHER PARTY THAT:
10.1.1.
IT HAS THE CORPORATE POWER AND AUTHORITY AND LEGAL RIGHT TO ENTER
INTO THIS AGREEMENT AND TO PERFORM ITS OBLIGATIONS HEREUNDER;
10.1.2.
THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE PERFORMANCE OF
THE TRANSACTIONS CONTEMPLATED THEREBY HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY
CORPORATE ACTION OF THE PARTY;
The symbol [***] is used to indicate that a portion of the exhibit has been
omitted and filed separately with the commission.
Confidential treatment has
been requested with respect to the omitted portion.
8
10.1.3.
THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE PERFORMANCE BY
THE PARTY OF ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT DO NOT AND WILL NOT:
CONFLICT WITH, OR CONSTITUTE A BREACH OR VIOLATION OF, ANY OTHER CONTRACTUAL
OBLIGATION TO WHICH IT IS A PARTY, ANY JUDGMENT OF ANY COURT OR GOVERNMENTAL
BODY APPLICABLE TO THE PARTY OR ITS PROPERTIES, OR, TO THE PARTY'S KNOWLEDGE,
ANY STATUTE, DECREE, ORDER, RULE OR REGULATION OF ANY COURT OR GOVERNMENTAL
AGENCY OR BODY APPLICABLE TO THE PARTY OR ITS PROPERTIES, OR REQUIRE ANY CONSENT
OR APPROVAL OF ANY GOVERNMENTAL AUTHORITY OR OTHER PERSON;
10.1.4.
EACH PARTY WILL, TO THE BEST OF ITS KNOWLEDGE WITHOUT UNDERTAKING A
SPECIAL INVESTIGATION, DISCLOSE TO THE OTHER PARTY ANY MATERIAL ADVERSE
PROCEEDINGS, CLAIMS OR ACTIONS THAT ARISE THAT WOULD MATERIALLY INTERFERE WITH
THAT PARTY'S PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND
10.1.5.
IT SHALL COMPLY WITH ANY APPLICABLE LAWS AND REGULATIONS RELATED TO
THE SUBJECT MATTER OF THIS AGREEMENT AND ITS PERFORMANCE HEREUNDER.
10.2.
ADDITIONAL REPRESENTATIONS AND WARRANTIES OF CEPHEID. CEPHEID
REPRESENTS AND WARRANTS THAT TO THE BEST OF ITS KNOWLEDGE IT HAS ALL RIGHTS AND
LICENSES FROM APPLIED BIOSYSTEMS, LAWRENCE LIVERMORE NATIONAL LABORATORIES AND
ANY OTHER THIRD PARTIES WHOSE INTELLECTUAL PROPERTY RIGHTS ARE CURRENTLY NEEDED
IN CONNECTION WITH THE MANUFACTURING AND SALE OF CEPHEID INSTRUMENTS UNDER THIS
AGREEMENT, AND CEPHEID WILL USE COMMERCIALLY REASONABLE EFFORTS TO RESPECT ITS
OBLIGATIONS UNDER THESE LICENSE AGREEMENTS, TO OBTAIN ANY ADDITIONAL LICENSE
AGREEMENTS THAT MAY BE