PATENT RIGHTS.
(b)KNOW-HOW, MATERIALS, CONFIDENTIAL INFORMATION AND PATENT RIGHTS ARE PROVIDED
"AS IS," "WITH ALL FAULTS," AND "WITH ALL DEFECTS," AND EXACT EXPRESSLY WAIVES
ALL RIGHTS TO MAKE ANY CLAIM WHATSOEVER AGAINST MAYO FOR MISREPRESENTATION OR
FOR BREACH OF PROMISE, GUARANTEE, REPRESENTATION OR WARRANTY OF ANY KIND
RELATING TO THE LICENSED PRODUCTS, KNOW-HOW, MATERIALS, CONFIDENTIAL INFORMATION
OR PATENT RIGHTS, EXCEPT AS EXPRESSLY SET FORTH HEREIN.
MAYO EXPRESSLY
DISCLAIMS ANY IMPLIED WARRANTIES
Amended and Restated Agreement
page 18 of 26
Mayo / Exact
Execution Copy
ARISING FROM ANY COURSE OF DEALING, USAGE, OR TRADE PRACTICE, WITH RESPECT TO:
THE SCOPE, VALIDITY OR ENFORCEABILITY OF THE PATENT RIGHTS, KNOW-HOW, OR
MATERIALS; THAT ANY PATENT WILL ISSUE BASED UPON ANY PENDING PATENT APPLICATION;
OR THAT THE MANUFACTURE, USE, SALE, OFFER FOR SALE OR IMPORTATION OF THE
LICENSED PRODUCTS WILL NOT INFRINGE OTHER INTELLECTUAL PROPERTY RIGHTS.
NOTHING
IN THIS RESTATED AGREEMENT WILL BE CONSTRUED AS AN OBLIGATION FOR MAYO TO BRING,
PROSECUTE OR DEFEND ACTIONS REGARDING THE PATENT RIGHTS, KNOW-HOW OR MATERIALS.
(c)EXACT AGREES THAT MAYO AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY LOSS OR
DAMAGE CAUSED BY OR ARISING OUT OF ANY RIGHTS GRANTED OR PERFORMANCE MADE UNDER
THIS RESTATED AGREEMENT, WHETHER TO OR BY EXACT, A SUBLICENSEE OR A THIRD
PARTY.
IN NO EVENT WILL MAYO'S LIABILITY OF ANY KIND INCLUDE ANY SPECIAL,
INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES, EVEN IF MAYO
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR EXCEED THE TOTAL AMOUNT
OF ROYALTIES WHICH HAVE ACTUALLY BEEN PAID TO MAYO BY EXACT AS OF THE DATE OF
FILING AN ACTION AGAINST MAYO WHICH RESULTS IN THE SETTLEMENT OR AWARD OF
DAMAGES TO EXACT.
9.04INDEMNIFICATION AND INSURANCE.
(a)EXACT will defend, indemnify, and hold harmless MAYO, MAYO's Affiliates and
their respective trustees, officers, agents, independent contractors and
employees ("MAYO Indemnitees") from any and all claims, actions, demands,
judgments, losses, costs, expenses, damages and liabilities (including
attorneys' fees, court costs and other expenses of litigation), regardless of
the legal theory asserted, arising out of or connected with: (a) the practice or
exercise of any rights granted hereunder by or on behalf of EXACT or any
Sublicensee; (b) research, development, design, manufacture, distribution, use,
sale, importation, exportation or other disposition of Licensed Products; and
(c) any act or omission of EXACT or any Sublicensee hereunder, including the
negligence or willful misconduct thereof.
MAYO and MAYO Affiliates shall have
no obligation to indemnify EXACT hereunder.
Notwithstanding the foregoing, the
indemnity obligations of EXACT shall not apply with respect to any claims,
actions, demands, judgments, losses, costs, expenses, damages and liabilities
which arise due to a breach of this Restated Agreement by MAYO or the gross
negligence or willful misconduct of MAYO or its agents or employees.
(b)The Parties agree that this indemnity should be construed and applied in
favor of maximum indemnification of MAYO Indemnitees.
(c)Commencing on the date of first commercial sale of a Licensed Product by
EXACT, EXACT will continuously carry claim-based liability insurance, including