OMITTED AND FILED WITH THE
COMMISSION
60
(H)
NON-INFRINGEMENT OF CUBIST TECHNOLOGY BY THIRD PARTIES.
AS OF THE
EFFECTIVE DATE, CUBIST IS UNAWARE OF ANY ACTIVITIES BY THIRD PARTIES THAT WOULD
CONSTITUTE INFRINGEMENT OR MISAPPROPRIATION OF ANY CUBIST TECHNOLOGY.
(I)
LITIGATION.
[*,] CUBIST IS NOT AWARE OF ANY LITIGATION AGAINST CUBIST THAT
HAS BEEN PENDING OR THREATENED WITH RESPECT TO THE CUBIST TECHNOLOGY, LICENSED
PRODUCTS OR CUBIST'S RIGHTS IN EITHER OF THE FOREGOING.
(J)
RESTRICTIVE AGREEMENTS.
AS OF THE EFFECTIVE DATE, CUBIST HAS NOT ENTERED
INTO ANY AGREEMENT WITH A THIRD PARTY PURSUANT TO WHICH CUBIST SHALL HAVE AGREED
NOT TO ENFORCE ANY RIGHT OF CUBIST TO PRECLUDE SUCH THIRD PARTY FROM USING OR
PRACTICING ANY OR ALL OF THE CUBIST TECHNOLOGY OR COMMERCIALIZE LICENSED
PRODUCTS IN THE TERRITORY.
(K)
PATENT PROSECUTION.
TO THE BEST OF CUBIST'S KNOWLEDGE AS OF THE EFFECTIVE
DATE, (I) CUBIST HAS COMPLIED IN ALL MATERIAL RESPECTS WITH ALL LAWS APPLICABLE
TO THE PROSECUTION AND MAINTENANCE OF THE CUBIST PATENTS, AND (II) THOSE
EMPLOYEES OF CUBIST HAVING A DUTY TO DISCLOSE TO THE PATENT OFFICE OF ANY
COUNTRY IN THE TERRITORY INFORMATION MATERIAL TO THE PATENTABILITY OF THE
SUBJECT MATTER OF ANY OR ALL OF THE CUBIST PATENTS IN SUCH COUNTRY HAVE
DISCLOSED ALL SUCH INFORMATION.
9.3.
CHIRON REPRESENTATION AND WARRANTY - NO INTELLECTUAL PROPERTY.
CHIRON
HEREBY REPRESENTS AND WARRANTS TO CUBIST THAT AS OF THE EFFECTIVE DATE, CHIRON
IS NOT AWARE (WITHOUT HAVING CONDUCTED ANY REVIEW OF ITS EXISTING INTELLECTUAL
PROPERTY PORTFOLIO) THAT IT HAS ANY PATENTS, TRADE SECRETS OR KNOW-HOW THAT
WOULD BE USEFUL IN CONNECTION WITH THE DEVELOPMENT, MANUFACTURE, MARKETING,
PROMOTION, USE, SALE, IMPORT OR EXPORT OF LICENSED PRODUCTS.
9.4.
DISCLAIMER.
CHIRON UNDERSTANDS THAT LICENSED PRODUCTS ARE THE SUBJECTS OF
ONGOING CLINICAL RESEARCH AND DEVELOPMENT AND THAT CUBIST CANNOT ASSURE THE
SAFETY OR USEFULNESS OF LICENSED PRODUCTS, HOWEVER, THE FOREGOING SHALL NOT BE
CONSTRUED TO AFFECT THE ALLOCATION OF RISKS AGREED UPON BY THE PARTIES UNDER TO
ARTICLE 10.
9.5.
NO OTHER REPRESENTATIONS.
THE EXPRESS REPRESENTATIONS AND WARRANTIES
STATED IN THIS ARTICLE 9 ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND
WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OR NON-MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY
RIGHTS.
* CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED WITH THE
COMMISSION
61
ARTICLE 10.
INDEMNIFICATION
10.1.
INDEMNIFICATION BY CUBIST. SUBJECT TO ALL OF THE PROVISIONS OF THIS
ARTICLE 10, CUBIST HEREBY AGREES TO DEFEND, HOLD HARMLESS AND INDEMNIFY
(COLLECTIVELY "INDEMNIFY") CHIRON AND ITS AFFILIATES, AND THEIR RESPECTIVE
AGENTS, DIRECTORS, OFFICERS AND EMPLOYEES (THE "CHIRON INDEMNITEES") FROM AND
AGAINST ANY AND ALL SUITS, CLAIMS, ACTIONS, DEMANDS, LIABILITIES, EXPENSES
AND/OR LOSSES, INCLUDING WITHOUT LIMITATION REASONABLE LEGAL EXPENSES AND
ATTORNEYS' FEES (COLLECTIVELY "LOSSES") SUFFERED OR INCURRED BY ANY OF SUCH
CHIRON INDEMNITEES RESULTING FROM (I) A MATERIAL BREACH OF ANY OF CUBIST'S
REPRESENTATIONS AND WARRANTIES PURSUANT TO ARTICLE 9 OF THIS AGREEMENT OR
ARTICLE 9 OF THE SUPPLY AGREEMENT; (II) A MATERIAL BREACH OF ANY