OF THE EXISTENCE OF SUCH
ALLEGED INFRINGEMENT OR UNLICENSED USE.
4.2
3F MAY, BUT HAS NO OBLIGATION TO, TAKE ANY
AND ALL ACTIONS TO ENFORCE THE LICENSED PATENTS (INCLUDING WITHOUT LIMITATION
INSTITUTING LITIGATION) AGAINST ANY INFRINGEMENT IN THE FIELDS OF USE OR TO
PREVENT ANY UNLICENSED USE OF THE TISSUE VALVE KNOW-HOW ("LITIGATION").
3F
SHALL BEAR ALL THE EXPENSES AND COSTS WITH RESPECT TO ANY SUCH LITIGATION AND 3F
SHALL BE ENTITLED TO ALL DAMAGES RECOVERED IN SUCH LITIGATION.
4.3
AT 3F'S REQUEST, EDWARDS AGREES TO COOPERATE
IN ANY SUCH LITIGATION, INCLUDING BUT NOT LIMITED TO PARTICIPATING IN SUCH
LITIGATION AS A NAMED PARTY.
3F AGREES TO PAY EDWARD'S REASONABLE COSTS AND
EXPENSES IN CONNECTION WITH SUCH LITIGATION.
IN THE EVENT THAT EDWARDS DESIRES
TO RETAIN SEPARATE COUNSEL IN CONNECTION WITH SUCH LITIGATION, HOWEVER, EDWARDS
SHALL BEAR ITS OWN COSTS AND EXPENSES CONCERNING THE LITIGATION, INCLUDING
WITHOUT LIMITATION THE COSTS AND EXPENSES OF SUCH SEPARATE COUNSEL.
NOTWITHSTANDING EDWARD'S PARTICIPATION IN SUCH LITIGATION, 3F SHALL RETAIN THE
FULL RIGHT TO CONTROL SUCH LITIGATION, INCLUDING WITHOUT LIMITATION ANY
SETTLEMENT OF SUCH LITIGATION.
3F SHALL HAVE THE RIGHT, IN ITS SOLE AND
ABSOLUTE DISCRETION, TO SETTLE ANY LITIGATION ON SUCH TERMS AND CONDITIONS THAT
3F DEEMS TO BE APPROPRIATE.
5.
REPRESENTATIONS AND WARRANTIES.
5.1
3F HEREBY REPRESENTS AND WARRANTS TO EDWARDS
THAT
(i) it has all of the requisite power and authority to enter into this Agreement
and to perform its obligations hereunder and that this Agreement has been duly
and validly authorized, executed, and delivered by 3F;
4
(ii)
it is the owner of, or has the exclusive
license to, the Tissue Valve Know-How, such Tissue Valve Know-How, to the best
of 3F's knowledge, does not infringe or misappropriate the intellectual property
of any Third Party, and that 3F has the entire right to enter these licenses;
and
(iii)
it is the owner of, or has the exclusive
license to, the Licensed Patents and that it has the entire right to enter into
these licenses.
5.2
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.1
AND TO THE EXTENT THAT 3F PROVIDES NOTICE IN ACCORDANCE WITH SECTION 3.1, 3F
DOES NOT MAKE, AND THERE ARE NO, WARRANTIES, REPRESENTATIONS, OR CONDITIONS,
EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE RELATING TO THE LICENSED PATENTS OR
TISSUE VALVE KNOW-HOW, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS OR
WARRANTIES OF VALIDITY, ENFORCEABILITY, NON-INFRINGEMENT, OR FITNESS FOR ANY
PARTICULAR PURPOSE.
5.3
EDWARDS HEREBY REPRESENTS AND WARRANTS TO 3F
THAT IT HAS ALL OF THE REQUISITE POWER AND AUTHORITY TO ENTER INTO THIS
AGREEMENT AND THAT THIS AGREEMENT HAS BEEN DULY AND VALIDLY AUTHORIZED,
EXECUTED, AND DELIVERED BY EDWARDS.
6.
TERM AND TERMINATION.
6.1
THE TERM OF THIS AGREEMENT SHALL COMMENCE ON
THE EFFECTIVE DATE AND, SUBJECT TO EARLIER TERMINATION AS PROVIDED HEREIN, SHALL
CONTINUE UNTIL THE LATER OF: (I) THE DATE OF EXPIRATION OF THE LAST TO EXPIRE OF
ANY LICENSED PATENT COVERING A LICENSED PRODUCT; OR (II) THE DATE ON WHICH
EDWARDS NO LONGER INTENDS TO UTILIZE THE TISSUE