has made, or shall be deemed to have made,
and 3M is not liable for, or bound in any manner by, any express or implied
representations, warranties, guaranties, promises or statements pertaining to
the Taper technology or the Purchased Assets, except as specifically set forth
in this Article 9.
9.3
ADAMIS Warranties.
ADAMIS hereby represents and warrants that as
of the Signing Date:
9.3.1
The execution, delivery and performance by ADAMIS of this
Agreement and the consummation by ADAMIS of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action, and no
other corporate action or proceeding on the part of ADAMIS is or will be
necessary for the execution, delivery and performance by ADAMIS of this
Agreement and the consummation by ADAMIS of the transactions contemplated
hereby.
9.3.2
ADAMIS has available cash and/or existing committed borrowing
facilities sufficient to enable it to pay the License Fee set forth in Section
3.1 and will use best efforts to secure any additional financing required to
consummate the remaining transactions contemplated by this Agreement.
9.4
Disclaimers.
3M has made available to ADAMIS and its
representatives information and records relating to Purchased Assets and
provides the Purchased Assets and any technical or other assistance or
cooperation on an "AS IS" basis as they exist on the Closing Date.
It is
understood and agreed by the Parties that no representation or warranty, express
or implied, has been made by 3M or its Affiliates or agents regarding the
accuracy or completeness of any such information or records.
Accordingly, other
than as specifically set forth in Sections 9.1 or 9.2, NO EXPRESS OR IMPLIED
WARRANTIES ARE GIVEN BY 3M OR ANY 3M AFFILIATE WITH RESPECT TO PURCHASED ASSETS,
SUCCESS OF THE PURCHASED ASSETS OR ANY RELATED PRODUCT CLINICALLY OR IN THE
MARKETPLACE, OR ANY OTHER MATTER OR SUBJECT ARISING OUT OF THIS AGREEMENT,
INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY ARISING OUT OF COURSE OF DEALING
OR USAGE OF TRADE, AND ANY IMPLIED WARRANTY OF FREEDOM FROM INFRINGEMENT, OR
REGARDING THE VALIDITY, SCOPE, OR ENFORCEABILITY OF ANY PATENT ASSIGNED UNDER
THIS AGREEMENT.
10
Execution Copy
9.5
Adamis Investigation; No Representations or Warranties;
Exclusivity of Remedies
(a)
ADAMIS HEREBY ACKNOWLEDGES THAT IT HAS INDEPENDENTLY EVALUATED AND
CONDUCTED THOROUGH DUE DILIGENCE AS IT CONSIDERS APPROPRIATE WITH RESPECT TO THE
PURCHASED ASSETS AND THE TAPER TECHNOLOGY AND HAS BEEN REPRESENTED BY, AND HAD
THE ASSISTANCE OF, COUNSEL IN THE CONDUCT OF SUCH DUE DILIGENCE, THE PREPARATION
AND NEGOTIATION OF THIS AGREEMENT, AND THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY.
ADAMIS TAKES FULL RESPONSIBILITY FOR MAKING ITS OWN
EVALUATION OF ANY INFORMATION OR MATERIALS PROVIDED BY 3M TO ADAMIS.
(b)
3M AND 3M IPC HAVE MADE AVAILABLE TO ADAMIS AND ITS
REPRESENTATIVES CERTAIN FINANCIAL, BUSINESS, PRODUCT AND OTHER INFORMATION AND
RECORDS RELATING TO THE PURCHASED ASSETS AND THE TAPER TECHNOLOGY.
IT IS
UNDERSTOOD AND AGREED BY THE PARTIES THAT NO REPRESENTATION OR WARRANTY,