the sole and exclusive right to institute any
lawsuits or other proceedings against any third party with respect to such
patents, including any claim for past, present or future infringement,
misappropriation, or violation of any intellectual property rights assigned to
Kodak hereunder, and Seller shall at Kodak's expense reasonably cooperate
with Kodak in connection with any such lawsuit or other proceeding. The
decisions of whether and when to institute, to settle or to continue the
prosecution of any such lawsuits or other proceedings against any third party
with respect to such patents shall be determined at Kodak's sole discretion.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES
8.01 EXCEPT AS EXPRESSLY SET FORTH HEREIN, NO RIGHTS WITH RESPECT TO ANY PATENTS
OR OTHER INTELLECTUAL PROPERTY RIGHTS ARE TRANSFERRED OR GRANTED. EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, NEITHER PARTY NOR ITS
AFFILIATES MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY OF THE
INTELLECTUAL PROPERTY OR RIGHTS TRANSFERRED TO THE OTHER PARTY, INCLUDING
WARRANTIES AS TO THE FITNESS, MERCHANTABILITY, VALIDITY, NONINFRINGEMENT,
FREEDOM FROM ERRORS, OR CONDITION OF THE INTELLECTUAL PROPERTY, MATERIAL, RIGHTS
OR TECHNICAL INFORMATION OR AS TO ANY OTHER MATTER. NOTWITHSTANDING THE
FOREGOING, SELLER REPRESENTS AND WARRANTS {i) THAT IT IS THE SOLE AND EXCLUSIVE
OWNER OF THE ASSIGNED PATENT, AND HAS THE RIGHT TO ASSIGN THE ENTIRE RIGHT,
TITLE AND INTEREST IN THE ASSIGNED PATENT EXCEPT THE PARTIES ACKNOWLEDGE THAT
THE ASSIGNED PATENT MAY BE SUBJECT TO CERTAIN SECURITY INTERESTS AS MORE
PARTICULARLY SET FORTH AND DESCRIBED IN ATTACHED EXHIBIT C, THE ENTIRETY OF
WHICH SECURITY INTERESTS SHALL TERMINATE AND BE RELEASED ON OR BEFORE THE
EFFECTIVE DATE AS DESCRIBED IN EXHIBIT C; (ii) TO THE KNOWLEDGE OF SELLER, THE
ASSIGNED PATENT HAS BEEN FILED,
6
PROSECUTED AND MAINTAINED IN ACCORDANCE WITH ALL LEGAL REQUIREMENTS; (iii) AND
THE ASSIGNED PATENT IS NOT SUBJECT TO ANY LICENSES OR ANY OTHER ENCUMBRANCES
EXCEPT AS PROVIDED IN THE LICENSE AGREEMENT TO KODAK AND IN CLAUSE (i) ABOVE;
(iv) THE CONSUMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT WILL NOT
CONFLICT WITH ANY CONTRACTS OR AGREEMENTS OR ANY OTHER INSTRUMENTS TO WHICH
SELLER OR ANY OF ITS AFFILIATES IS A PARTY; (v) THERE ARE NO PENDING OR
THREATENED PATENT LITIGATIONS RELATING TO THE ASSIGNED PATENT OR ANY CHALLENGES
TO THE VALIDITY, OWNERSHIP, INVENTORSHIP OR ENFORCEMENT OF THE ASSIGNED PATENT,
AND TO THE KNOWLEDGE OF SELLER THERE IS NO SUBSTANTIAL BASIS THEREFOR; (vi) NO
PAYMENT OTHER THAN THE PAYMENT SET FORTH IN SECTION 3.01 HEREOF IS DUE TO SELLER
OR, TO THE KNOWLEDGE OF SELLER, ANY OTHER ENTITY, WITH RESPECT TO THE RIGHT TO
USE OF THE ASSIGNED PATENT; AND (viii) THE ASSIGNED PATENT IS NOT SUBJECT TO ANY
RIGHTS OF ANY U.S. OR NON-U.S. GOVERNMENT.
ARTICLE 9
INDEMNIFICATION
9.01 Seller shall indemnify, defend and hold Kodak or any of its Affiliates
harmless against any and all claims asserted within twelve (12) months after the
Effective Date and related liabilities, losses, damages, fines, judgments and
penalties, including related costs and expenses (including reasonable attorneys'