are true, correct and complete copies, with the competitively
sensitive and confidential terms thereof redacted. As of the Effective Date,
each ISMMS License Agreement is in full force and effect.
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16.
DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITIES
16.1
DISCLAIMER OF WARRANTIES. EXCEPT AS IS EXPRESSLY SET FORTH IN SECTION
15.3, SPONSOR AND ISMMS MAKE NO REPRESENTATIONS AND EXTEND NO WARRANTIES OF ANY
KIND, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE MS LAB TEST OR ANY
MATERIAL DELIVERED BY SPONSOR TO BIO-TECHNE. THERE ARE NO EXPRESS OR IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE
USE OF THE MATERIAL WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER
PROPRIETARY RIGHTS.
RECIPIENT ASSUMES ALL RISKS ASSOCIATED WITH THE USE OF THE
MATERIAL UNDER THIS AGREEMENT.
16.2
CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANYTHING CONTAINED IN THIS
AGREEMENT TO THE CONTRARY, NEITHER PARTY OR ITS AFFILIATES, MEMBERS, TRUSTEES,
DIRECTORS, OFFICERS, EMPLOYEES, AND/OR FACULTY MEMBERS SHALL BE LIABLE IN ANY
MANNER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES
OF THE OTHER PARTY OR THE OTHER PARTY'S AFFILIATES, MEMBERS, TRUSTEES,
DIRECTORS, OFFICERS, EMPLOYEES, AND/OR FACULTY MEMBERS, EVEN IF SUCH PARTY,
AFFILIATE(S), MEMBER(S) TRUSTEES, DIRECTORS, OFFICERS, EMPLOYEES, AND/OR FACULTY
MEMBERS HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. EACH
PARTY UNCONDITIONALLY AND IRREVOCABLY FOREVER WAIVES, ON BEHALF OF ITSELF, ITS
AFFILIATES, MEMBERS, TRUSTEES, DIRECTORS, OFFICERS, EMPLOYEES, AND/OR FACULTIES,
ANY RIGHT TO SEEK SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY
DAMAGES HEREUNDER. THE LIMITATION IN THIS SECTION 16.2 SHALL NOT APPLY TO (I)
THE PARTIES' INDEMNIFICATION OBLIGATIONS (II) ANY BREACH BY EITHER PARTY OF SUCH
PARTY'S OBLIGATIONS TO THE OTHER UNDER ANY WRITTEN CONFIDENTIALITY OR
NON-DISCLOSURE AGREEMENT ENTERED INTO BY THE PARTIES WHETHER PRIOR TO OR AFTER
THE DATE HEREOF, OR (III) ANY VIOLATION BY EITHER PARTY OF SUCH PARTY'S
OBLIGATIONS UNDER THIS AGREEMENT WITH RESPECT TO THE INTELLECTUAL PROPERTY OF
THE OTHER PARTY.
16.3
NO LIABILITY OF ISMMS. BIO-TECHNE HEREBY ACKNOWLEDGES AND AGREES THAT
IN NO EVENT SHALL ISMMS HAVE ANY LIABILITY TO BIO-TECHNE FOR THE OBLIGATIONS OR
LIABILITIES OF SPONSOR UNDER THIS AGREEMENT UNDER ANY THEORY OF VICARIOUS
LIABILITY INCLUDING WITHOUT LIMITATION ANY THEORY IN THE NATURE OF ACTUAL OR
APPARENT AGENCY OR ALTER EGO.
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17.
INDEMNITY AND INSURANCE
17.1
Indemnification.
(a)
Bio-Techne Indemnification. Bio-Techne, at its sole cost and expense,
shall defend, indemnify and hold harmless Sponsor, its Affiliates, each of the
Mount Sinai Entities and each and every one of their respective subsidiaries,
parents, and Affiliates, and their respective trustees, directors, officers,
members, shareholders, faculty members, medical staff, employees, students,
agents and representatives (collectively, the "Sponsor Indemnitees") from and
against any third-party Action, and shall pay and reimburse each of them for,
any and all related Losses incurred or sustained by, or imposed upon, the
Sponsor Indemnitees in favor of any third party to the extent based upon,
arising out of, with respect to or by reason of: (i) any negligent or more
culpable act or omission of Bio-Techne (including any reckless