PARTY FOR ANY LAWFUL PURPOSE, SUBJECT TO THE
FOLLOWING RESTRICTIONS:
(I) BIOSITE SHALL NOT DISCLOSE SALES DOLLARS, GROSS
PROFIT DOLLARS OR GROSS PROFIT PERCENT INFORMATION DISCLOSED TO BIOSITE BY FHC
UNDER THIS AGREEMENT (OR CALCULATED BY BIOSITE USING INFORMATION DISCLOSED TO
BIOSITE BY FHC UNDER THIS AGREEMENT) TO ANY THIRD PARTY (EXCLUDING BIOSITE'S
ATTORNEYS, ACCOUNTANTS, OR AS MAY BE REQUIRED BY APPLICABLE LAW, REGULATION OR
COURT ORDER OR AS PERMITTED UNDER CLAUSES (I) THROUGH (V) UNDER SECTION 9(C)
ABOVE); AND (II) BIOSITE SHALL NOT DISCLOSE ANY CUSTOMER OR SALES INFORMATION
DISCLOSED TO BIOSITE BY FHC UNDER THIS AGREEMENT TO [***], [***] OR [***]
(UNLESS SO REQUIRED BY APPLICABLE LAW, REGULATION OR COURT ORDER OR AS PERMITTED
UNDER CLAUSES (I) THROUGH (V) UNDER SECTION 9(C) ABOVE).
THE TERMS AND
CONDITIONS OF THIS SECTION 9(D) SHALL SUPERCEDE ANY INCONSISTENT TERMS AND
CONDITIONS THAT MAY APPEAR IN A PRIOR AGREEMENT BETWEEN THE PARTIES IF THE TERMS
AND CONDITIONS OF ANY SUCH PRIOR AGREEMENT SURVIVE TERMINATION OF THE SUCH PRIOR
AGREEMENT.
10.
BIOSITE'S WARRANTIES:
DISCLAIMER OF
WARRANTIES.
(A)
BIOSITE AGREES THAT IT SHALL EXECUTE AND
WARRANTS THAT IT SHALL ABIDE BY THE TERMS OF FHC'S CONTINUING GUARANTY, A COPY
OF WHICH IS ATTACHED HERETO AS SCHEDULE A AND WHICH GUARANTY IS INCORPORATED
HEREIN BY REFERENCE.
THE TERMS AND PROVISIONS OF THE CONTINUING GUARANTY SHALL
SURVIVE THE TERMINATION OF THIS AGREEMENT.
PRIOR TO THE FIRST SHIPMENT OF
PRODUCT TO FHC, BIOSITE SHALL PROVIDE FHC WITH CERTIFICATES OF INSURANCE WHICH
MEET THE REQUIREMENTS OF PARAGRAPH D OF THE CONTINUING GUARANTY.
BIOSITE'S
INSURANCE CARRIERS SHALL AT ALL TIMES DURING THE TERM OF THIS AGREEMENT BE RATED
BY BEST'S AS B+ OR SUPERIOR.
BIOSITE IS NOT AWARE AFTER DUE INQUIRY OF ANY
CIRCUMSTANCE WHICH WOULD PREVENT THE ISSUANCE OF SUCH POLICY.
(B)
IN ADDITION TO THE WARRANTIES OF BIOSITE SET
FORTH IN THIS AGREEMENT AND IN THE CONTINUING GUARANTY, BIOSITE WARRANTS THAT
EACH OF THE PRODUCTS WILL CONFORM TO THE SPECIFICATIONS SET FORTH IN PRODUCT
LITERATURE PREPARED BY OR ON BEHALF OF BIOSITE AND THAT THE PRODUCTS WILL COMPLY
AND BE MANUFACTURED, PACKAGED, STERILIZED (IF APPLICABLE), LABELED AND SHIPPED
IN COMPLIANCE WITH ALL APPLICABLE FEDERAL, STATE AND LOCAL LAWS, ORDERS,
REGULATIONS AND
* Confidential Treatment Requested
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STANDARDS.
BIOSITE FURTHER WARRANTS THAT THE PRODUCTS DO NOT INFRINGE UPON THE
INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
(C)
BIOSITE AND FHC SHALL EXTEND TO CUSTOMERS
ONLY THE PRODUCT WARRANTY EMBODIED IN SCHEDULE I HERETO; PROVIDED THAT BIOSITE
MAY MODIFY SUCH PRODUCT WARRANTY WITH FHC'S CONSENT, WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD.
BIOSITE SHALL NOT MODIFY OR AMEND THE WARRANTY DURING
THE TERM OF THIS AGREEMENT WITHOUT PROVIDING FHC WITH SIXTY (60) DAYS, PRIOR
WRITTEN NOTICE.
BIOSITE WARRANTS AND REPRESENTS THAT THE PRODUCTS WILL PERFORM
IN ACCORDANCE WITH BIOSITE'S WARRANTY.
(D)
EXCEPT FOR THE WARRANTIES DESCRIBED IN
SECTIONS 10 (A)-(C) HEREOF, ALL OF WHICH SHALL INURE TO THE BENEFIT OF, AND
SHALL BE ENFORCEABLE BY, FHC'S CUSTOMERS, BIOSITE MAKES NO WARRANTIES TO
CUSTOMERS AND FHC SHALL NOT