Confidential materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote such omission.
21
8.4
NO CONFLICT.
DYAX AND LICENSEE EACH
REPRESENTS AND WARRANTS TO THE OTHER PARTY THAT, NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THIS AGREEMENT, THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY SUCH
PARTY, THE PERFORMANCE OF SUCH PARTY'S OBLIGATIONS HEREUNDER AND THE LICENSES
AND SUBLICENSES TO BE GRANTED BY SUCH PARTY PURSUANT TO THIS AGREEMENT (A) DO
NOT CONFLICT WITH OR VIOLATE ANY REQUIREMENT OF ANY LAWS, RULES OR REGULATIONS
EXISTING AS OF THE EFFECTIVE DATE AND APPLICABLE TO SUCH PARTY AND (B) DO NOT
CONFLICT WITH, VIOLATE, BREACH OR CONSTITUTE A DEFAULT UNDER ANY CONTRACTUAL
OBLIGATIONS OF SUCH PARTY OR ANY OF ITS AFFILIATES EXISTING AS OF THE EFFECTIVE
DATE.
8.5
ENFORCEABILITY.
DYAX AND LICENSEE EACH
REPRESENTS AND WARRANTS TO THE OTHER PARTY THAT, AS OF THE EFFECTIVE DATE, THIS
AGREEMENT IS A LEGAL AND VALID OBLIGATION BINDING UPON IT AND IS ENFORCEABLE
AGAINST IT IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE
LIMITED BY APPLICABLE INSOLVENCY AND OTHER APPLICABLE LAWS AFFECTING CREDITORS'
RIGHTS GENERALLY OR BY THE AVAILABILITY OF EQUITABLE REMEDIES.
8.6
[*****]
8.7
[*****]
8.8
NO WARRANTIES.
EXCEPT AS OTHERWISE
EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY REPRESENTATION OR EXTENDS
ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO THE OTHER PARTY, AND
EACH PARTY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THE COMPOUND AND
THE PRODUCT.
EACH PARTY HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT
THE DEVELOPMENT, MANUFACTURE AND COMMERCIALIZATION OF THE PRODUCT PURSUANT TO
THIS AGREEMENT WILL BE SUCCESSFUL.
8.9
LIMITATION OF LIABILITY.
NEITHER PARTY
SHALL HAVE A RIGHT TO OR SHALL CLAIM SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES,
INCLUDING LOST PROFITS, FOR BREACH OF THIS AGREEMENT AGAINST THE OTHER PARTY.
EXCEPT FOR BREACHES BY DYAX OF THE REPRESENTATIONS, WARRANTIES AND COVENANTS SET
FORTH IN SECTION 8.6 AND 8.7, REMEDIES FOR BREACH OF THIS AGREEMENT SHALL BE
LIMITED TO CLAIMS FOR AMOUNTS DUE HEREUNDER OR AS OTHERWISE PROVIDED IN THIS
AGREEMENT, INCLUDING CLAIMS FOR INDEMNIFICATION AS PROVIDED IN ARTICLE 12
HEREOF.
Confidential materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote such omission.
22
ARTICLE 9
INDEMNIFICATION
9.1
INDEMNIFICATION.
(A)
BY LICENSEE. LICENSEE WILL DEFEND,
INDEMNIFY AND HOLD HARMLESS DYAX, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS (THE "DYAX INDEMNIFIED PARTIES") FROM AND AGAINST
ALL CLAIMS, DEMANDS, LIABILITIES, DAMAGES, PENALTIES, FINES, COSTS AND EXPENSES,
INCLUDING REASONABLE ATTORNEYS' AND EXPERT FEES AND COSTS, AND COSTS OR AMOUNTS
PAID TO SETTLE (COLLECTIVELY, "LOSSES"), ARISING FROM OR OCCURRING AS A RESULT
OF A THIRD PARTY'S CLAIM (INCLUDING ANY THIRD PARTY PRODUCT LIABILITY OR
INFRINGEMENT CLAIM), ACTION, SUIT, JUDGMENT OR SETTLEMENT TO THE EXTENT SUCH
LOSSES ARE DUE TO OR BASED UPON:
(I)
THE GROSS NEGLIGENCE, RECKLESSNESS, BAD
FAITH, INTENTIONAL WRONGFUL ACTS OR OMISSIONS OR VIOLATIONS OF APPLICABLE LAW OR
REGULATION BY OR OF LICENSEE, ITS RELATED PARTIES, WHOLESALE