perform its obligations hereunder and license the
Technology and the Martek Product pursuant to the terms of this Agreement.
Licensor's performance under this Agreement does not conflict with any other
contract to which Licensor is bound.
(iii) Licensor has, prior to the date of this Agreement, informed
Licensee of all Third Party patents relevant to the Technology or the Licensed
Patents and known to Licensor.
(iv) Licensor has recently become aware of European Patent EP - B-231904
of Milupa (the "Milupa Patent") and European Patent EP-B-2223960 of Lion
Corporation (the "Lion Patent"), which currently are under study. With the
exception of the Milupa Patent and the Lion Patent, at the time of this
Agreement, Licensor has no actual knowledge of the existence of other patents
which would be infringed by the commercial exploitation, by Licensee or its
Affiliates, of the Technology, the Martek Product or the Licensed Patents.
SECTION 5.2. DISCLAIMERS. (I) LICENSOR HEREBY DISCLAIMS ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE RELATING TO THE MARTEK
PRODUCT OR THE TECHNOLOGY AND ANY OTHER WARRANTY OR WARRANTIES RELATING THERETO
AND NOT EXPRESSLY SET FORTH IN THIS AGREEMENT, AND LICENSOR DISCLAIMS ANY
LIABILITY FOR CONSEQUENTIAL DAMAGES RELATING TO THE USE, MANUFACTURE,
DISTRIBUTION, MARKETING, OR SALE OF THE TECHNOLOGY, THE MARTEK PRODUCT OR THE
AHPC FORMULAID PRODUCT. LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE
TECHNOLOGY OR THE MARTEK PRODUCT IS USABLE WITH THE AHPC FORMULAID PRODUCT OR
THAT THE TECHNOLOGY OR THE MARTEK PRODUCT CAN BE INCORPORATED SAFELY INTO THE
AHPC FORMULAID PRODUCT. LICENSOR SHALL NOT BE LIABLE FOR DAMAGES RESULTING FROM
ANY IMPROVEMENTS OR
*CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
-12-
MODIFICATIONS TO THE TECHNOLOGY OR THE MARTEK PRODUCT WHICH ARE NOT APPROVED AND
ACKNOWLEDGED SPECIFICALLY BY LICENSOR AS BEING PROPRIETARY TO LICENSOR OR
RESULTING FROM ANY SALE, MANUFACTURE OR USE OF THE AHPC FORMULAID PRODUCT.
(II) LICENSOR HEREBY DISCLAIMS ANY WARRANTY THAT THE TECHNOLOGY, THE MARTEK
PRODUCT OR THE LICENSED PATENTS ARE FREE FROM INFRINGEMENT BY THIRD PARTIES,
EXCEPT AS SET FORTH IN SUBSECTION 5.1(IV). LICENSOR FURTHER DISCLAIMS ANY
WARRANTY RELATING TO THE PATENTABILITY OF, OR THE VALIDITY OF ANY PATENTS
RELATING TO, THE TECHNOLOGY OR THE MARTEK PRODUCT AND MAKES NO REPRESENTATIONS
WHATSOEVER WITH REGARD TO THE SCOPE OF ANY SUCH PATENTS OR EXCEPT AS SET FORTH
IN SUBSECTION 5.1(IV), THAT SUCH PATENTS MAY BE COMMERCIALLY EXPLOITED WITHOUT
INFRINGING OTHER PATENTS.
IT IS HEREBY ACKNOWLEDGED AND AGREED THAT IT SHALL BE LICENSEE'S, AND NOT
LICENSOR'S, OBLIGATION TO DETERMINE THE SAFETY AND UTILITY OF THE MARTEK PRODUCT
AS IT RELATES TO INFANT FORMULA PRODUCTS.
Section 5.3. Manufacturing Standards. During the course of this Agreement,
in the event Licensor elects to manufacture the Martek Product hereunder,
Licensor shall advise Licensee of any proposed change contemplated by Licensor
associated with the manufacturing processes, including the source of supply of
all materials utilized by Licensor in the manufacture of the Martek Product and
the specifications and controls utilized in the manufacturing process therefor.
In the