A VALID AND BINDING OBLIGATION OF IT,
ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS.
4.
LICENSOR'S DISCLAIMER AND EXCLUSIONS
4.1.
ALL RIGHTS GRANTED HEREUNDER ARE GRANTED SOLELY ON AN "AS-IS" AND
"WHERE-IS" BASIS.
LICENSOR SHALL HAVE NO LIABILITY TO LICENSEE OR ANY OTHER
PERSON ARISING FROM OR RELATING TO ANY RIGHTS GRANTED HEREUNDER OR OTHERWISE
ARISING FROM OR RELATING TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR
OTHERWISE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSOR HEREBY
DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES CONCERNING THE LICENSED
TECHNOLOGY OR ANY OTHER MATTER RELATED TO THE SUBJECT MATTER HEREOF, INCLUDING
ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, NON-INFRINGEMENT, MISAPPROPRIATION, OR ANY WARRANTY OR
REPRESENTATION AS TO THE OWNERSHIP, INVENTORSHIP, VALIDITY, SCOPE OR
ENFORCEABILITY OF THE LICENSED TECHNOLOGY.
5.
INTELLECTUAL PROPERTY
5.1.
OWNERSHIP.
LICENSEE ACKNOWLEDGES AND AGREES THAT LICENSOR IS THE
SOLE AND EXCLUSIVE OWNER OF THE LICENSED TECHNOLOGY AND THAT, AS BETWEEN
LICENSOR AND LICENSEE, LICENSOR SHALL EXCLUSIVELY OWN ALL RIGHT, TITLE AND
INTEREST IN AND TO ANY IMPROVEMENTS MADE BY, OR ON BEHALF OF, LICENSEE OR ANY OF
ITS AFFILIATES.
LICENSEE SHALL PROMPTLY DISCLOSE ANY SUCH IMPROVEMENTS TO
LICENSOR IN WRITING.
ANY SUCH IMPROVEMENTS SHALL BE DEEMED TO BE INCLUDED IN
THE LICENSED TECHNOLOGY.
5.2.
NO CHALLENGES.
LICENSEE AND ITS AFFILIATES SHALL NOT CHALLENGE OR
QUESTION THE VALIDITY OR ENFORCEABILITY OF ANY OF THE LICENSED TECHNOLOGY IN ANY
LAWSUIT OR PROCEEDING BETWEEN LICENSOR, ON THE ONE HAND, AND LICENSEE OR ANY OF
ITS AFFILIATES, ON THE OTHER.
3
5.3.
INFRINGEMENT.
IF LICENSEE OR ANY OF ITS SUBSIDIARIES BECOMES
AWARE OF ANY INFRINGEMENT OR MISAPPROPRIATION, ANYWHERE IN THE WORLD, OF ANY
LICENSED TECHNOLOGY, LICENSEE SHALL PROMPTLY NOTIFY LICENSOR IN WRITING TO THAT
EFFECT.
ANY SUCH NOTICE SHALL INCLUDE ANY AVAILABLE EVIDENCE TO SUPPORT AN
ALLEGATION OF INFRINGEMENT OR MISAPPROPRIATION AGAINST THE APPLICABLE THIRD
PARTY(IES).
LICENSOR SHALL HAVE NO OBLIGATION TO LICENSEE TO MAINTAIN, PROTECT,
DEFEND AND/OR ENFORCE ANY OF THE LICENSED TECHNOLOGY, EVEN IF NOTIFIED BY
LICENSEE OF ANY POTENTIAL INFRINGEMENT OR MISAPPROPRIATION OF SUCH LICENSED
TECHNOLOGY.
LICENSOR SHALL HAVE THE SOLE RIGHT TO DEFEND THE LICENSED
TECHNOLOGY FROM CLAIMS THAT IT INFRINGES ANY PATENT RIGHT OR OTHER INTELLECTUAL
PROPERTY RIGHT OF A THIRD PARTY, EXCEPT IN THE CASE OF A MATTER COVERED BY
INDEMNIFICATION IN THE SPA FOR WHICH LICENSEE UNDERTAKES THE DEFENSE.
5.4.
EXPENSE SHARING.
LICENSEE ACKNOWLEDGES AND AGREES THAT,
NOTWITHSTANDING THE ROYALTY-FREE NATURE OF THE LICENSE GRANTED IN SECTION 2.1,
THE LICENSEE, ANY OTHER LICENSEE OF THE LICENSED TECHNOLOGY FROM TIME TO TIME
AND THE LICENSOR SHALL BE RESPONSIBLE AND LIABLE TO EQUALLY SHARE ALL COSTS AND
EXPENSES INCURRED BY LICENSOR (INCLUDING REASONABLE ATTORNEY'S FEES AND
EXPENSES) WITH RESPECT TO OBTAINING, MAINTAINING, PROTECTING, DEFENDING AND/OR
ENFORCING ANY OF THE PATENT RIGHTS INCLUDED IN THE LICENSED TECHNOLOGY.
LICENSOR SHALL INVOICE LICENSEE FOR ITS CORRESPONDING SHARE OF THE FOREGOING
COSTS AND EXPENSES, AND LICENSEE SHALL PAY ALL INVOICED AMOUNTS WITHIN THIRTY
(30) DAYS OF RECEIPT OF THE APPLICABLE INVOICE.
ALL PAST DUE