THIRD PARTY CONTRACTORS PROVIDING RESEARCH OR
DEVELOPMENT SERVICES TO ALNYLAM AND SUBJECT TO CONFIDENTIALITY OBLIGATIONS, OR
(IV) MADE IN ALNYLAM PATENT RIGHTS, ALNYLAM REPRESENTS THAT IT
HAS NOT LICENSED
OR DISCLOSED ALNYLAM SEQUENCE SPECIFIC KNOW-HOW TO ANY THIRD PARTY.
(O)
ALNYLAM HAS NOT GRANTED ANY RIGHT OR LICENSE
TO ISIS PHARMACEUTICALS, INC. TO DEVELOP OR COMMERCIALIZE LICENSED PRODUCTS.
SECTION 10.8
CUBIST REPRESENTATION REGARDING CUBIST IN-LICENSES.
CUBIST
REPRESENTS THAT THERE ARE NO CUBIST IN-LICENSES AS OF THE EFFECTIVE DATE.
SECTION 10.9
NO WARRANTIES.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN,
NEITHER PARTY MAKES ANY REPRESENTATION OR EXTENDS ANY WARRANTIES OF ANY KIND,
EITHER EXPRESS OR IMPLIED, TO THE OTHER PARTY, AND EACH PARTY HEREBY DISCLAIMS
ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT WITH RESPECT TO LICENSED PRODUCT.
EACH PARTY HEREBY DISCLAIMS
ANY REPRESENTATION OR WARRANTY THAT THE DEVELOPMENT, MANUFACTURE AND
COMMERCIALIZATION OF THE LICENSED PRODUCT PURSUANT TO THIS AGREEMENT WILL BE
SUCCESSFUL OR THAT ANY PARTICULAR SALES LEVEL WITH RESPECT TO THE LICENSED
PRODUCT WILL BE ACHIEVED.
SECTION 10.10
NO DEBARMENT.
NEITHER PARTY NOR ANY OF ITS AFFILIATES HAS BEEN
DEBARRED OR IS SUBJECT TO DEBARMENT AND NEITHER PARTY NOR ANY OF ITS AFFILIATES
WILL USE IN ANY CAPACITY, IN CONNECTION WITH THE DEVELOPMENT, MANUFACTURE OR
COMMERCIALIZATION OF THE PRODUCT, ANY PERSON WHO HAS BEEN DEBARRED PURSUANT TO
SECTION 306 OF THE UNITED STATES FEDERAL FOOD, DRUG, AND COSMETIC ACT, OR WHO IS
THE SUBJECT OF A CONVICTION DESCRIBED IN SUCH SECTION.
EACH PARTY AGREES TO
INFORM THE OTHER PARTY IN WRITING IMMEDIATELY UPON BECOMING AWARE THAT ANY
PERSON WHO IS PERFORMING SERVICES HEREUNDER IS DEBARRED OR IS THE SUBJECT OF A
CONVICTION DESCRIBED IN SECTION 306, OR IF ANY ACTION, SUIT, CLAIM,
INVESTIGATION OR LEGAL OR ADMINISTRATIVE PROCEEDING IS PENDING OR, TO THE BEST
OF SUCH PARTY'S KNOWLEDGE, IS THREATENED, RELATING TO THE DEBARMENT OR
CONVICTION OF SUCH PARTY OR ANY PERSON USED IN ANY CAPACITY BY SUCH PARTY OR ANY
OF ITS AFFILIATES IN CONNECTION WITH THE DEVELOPMENT, MANUFACTURE OR
COMMERCIALIZATION OF LICENSED PRODUCT.
SECTION 10.11
INDEMNIFICATION.
(A)
GENERAL INDEMNIFICATION BY CUBIST.
CUBIST
SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND ALNYLAM, ITS AFFILIATES, AND THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS (THE "ALNYLAM INDEMNITEES")
FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS, SUITS, LOSSES, LIABILITIES,
DAMAGES, COSTS, FEES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES)
(COLLECTIVELY, "LOSSES") ARISING OUT OF OR RESULTING FROM, DIRECTLY OR
INDIRECTLY, (I) ANY BREACH OF, OR INACCURACY IN, ANY REPRESENTATION OR WARRANTY
MADE BY CUBIST IN THIS AGREEMENT, OR ANY BREACH OR VIOLATION OF ANY COVENANT OR
AGREEMENT OF CUBIST IN OR PURSUANT TO THIS AGREEMENT, OR
*Confidential Treatment Requested.
Omitted portions filed separately with the
Commission.
72
(II) THE NEGLIGENCE OR WILLFUL MISCONDUCT BY OR OF CUBIST, ITS AFFILIATES AND
THEIR RESPECTIVE SUBLICENSEES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES AND AGENTS IN THE PERFORMANCE OF CUBIST'S OBLIGATIONS UNDER THIS
AGREEMENT. CUBIST SHALL HAVE NO OBLIGATION TO INDEMNIFY THE ALNYLAM INDEMNITEES
TO THE EXTENT THAT THE LOSSES IN