TO THE BENEFIT OF IDI. IDI HEREBY AGREES TO DEFEND AND
INDEMNIFY CEPHEID AND TO HOLD IT HARMLESS AGAINST CLAIMS BY A THIRD PARTY THAT
THE USE BY CEPHEID OF IDI'S MARKS IN A MANNER EXPRESSLY AUTHORIZED BY IDI IN
WRITING INFRINGES INTELLECTUAL PROPERTY RIGHTS OF SUCH THIRD PARTY.
5.3.
RESERVED RIGHTS.
NO LICENSE OR OTHER RIGHT IS GRANTED OR IS TO BE
CONSTRUED AS BEING GRANTED HEREUNDER BY ONE PARTY TO THE OTHER PARTY, WHETHER
IMPLIED, OR BY ESTOPPEL, TO ANY INTELLECTUAL PROPERTY RIGHTS, OR TO TRADEMARK,
TRADE DRESS, OR SERVICE MARK RIGHTS, OR ANY OTHER INTELLECTUAL PROPERTY RIGHTS,
OWNED, USED, LICENSED TO, OR OTHERWISE CONTROLLED BY, A PARTY, EXCEPT AS
EXPRESSLY SET FORTH HEREIN.
The symbol [***] is used to indicate that a portion of the exhibit has been
omitted and filed separately with the commission.
Confidential treatment has
been requested with respect to the omitted portion.
6.
ROYALTIES TO [***] AND TO THIRD PARTIES
6.1.
ROYALTY PAYMENTS TO [***] AND THIRD PARTIES.
PAYMENT OF ANY AND
ALL ROYALTY PAYMENTS DUE TO [***] AND ANY OTHER THIRD PARTIES FOR REQUIRED
LICENSES ON ACCOUNT OF THE MANUFACTURE AND SALE OF IDI MANUFACTURED PRODUCTS
PURSUANT TO THIS AGREEMENT WILL BE THE RESPONSIBILITY OF IDI.
7.
CONFIDENTIALITY
7.1.
NON-DISCLOSURE; NON-USE.
BECAUSE CEPHEID AND IDI WILL BE
COOPERATING WITH EACH OTHER UNDER THIS AGREEMENT, EACH HAS AND MAY REVEAL
CONFIDENTIAL INFORMATION TO THE OTHER.
THE PARTIES AGREE, BY USING THE SAME
DEGREE OF CARE AS EACH USES FOR ITS OWN INFORMATION OF LIKE IMPORTANCE, BUT NOT
LESS THAN A REASONABLE DEGREE OF CARE, TO HOLD IN CONFIDENCE ANY CONFIDENTIAL
INFORMATION DISCLOSED BY THE OTHER PARTY HEREUNDER, AND NOT TO DISCLOSE ANY
CONFIDENTIAL INFORMATION OF THE OTHER PARTY TO ANY THIRD PARTY OR, EXCEPT AS
PROVIDED BELOW, TO ANY AFFILIATE, AND NOT TO USE ANY CONFIDENTIAL INFORMATION
DISCLOSED BY THE OTHER PARTY UNDER THE ARIDIA AGREEMENTS AND HEREUNDER FOR ANY
PURPOSE OTHER THAN CARRYING OUT ITS OBLIGATIONS UNDER THIS AGREEMENT, WITHOUT
THE EXPRESS WRITTEN CONSENT OF THE OTHER PARTY.
EACH PARTY WILL DISCLOSE
CONFIDENTIAL INFORMATION ONLY TO ITS EMPLOYEES OR AGENTS WHO HAVE A NEED TO KNOW
SAME FOR SUCH PURPOSE.
WITH RESPECT TO ANY CONFIDENTIAL INFORMATION THAT HAS
BEEN OR IS REVEALED BY A PARTY TO THE OTHER PARTY, THE CONFIDENTIALITY AND
NON-USE REQUIREMENTS OF THIS SECTION 7 WILL REMAIN IN FORCE FOR A PERIOD OF
5
YEARS AFTER THE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
NOTWITHSTANDING THE FOREGOING, EACH PARTY MAY DISCLOSE THE EXISTENCE OR DETAILS
OF THIS AGREEMENT
(I)
TO THIRD PARTIES IN THE CONTEXT OF A PROPOSED FINANCING, AS LONG AS THE
THIRD PARTY SUBSCRIBES TO CONFIDENTIALITY OBLIGATIONS SIMILAR TO THOSE
HEREUNDER.
(II)
TO THIRD PARTIES IN THE CONTEXT OF A DUE DILIGENCE CONDUCTED BY A THIRD
PARTY ON THE AFFAIRS OF ONE OF THE PARTIES, AS LONG AS THE THIRD PARTY
SUBSCRIBES TO CONFIDENTIALITY OBLIGATIONS SIMILAR TO THOSE HEREUNDER.
7.2.
RESPONSIBILITY OVER EMPLOYEES AND AGENTS.
EACH PARTY WILL ASSUME
INDIVIDUAL RESPONSIBILITY FOR THE ACTIONS AND OMISSIONS OF