(C) SHALL NOT BE ADULTERATED OR MISBRANDED WITHIN THE MEANING OF THE
FD&C ACT, AND (D) AT THE TIME OF DELIVERY, SHALL BE FREE AND CLEAR OF ANY LIEN
OR ENCUMBRANCE.
7.2
QUALIFIED PERSONNEL.
SONUS SHALL ENGAGE AND EMPLOY ONLY
PROFESSIONALLY QUALIFIED PERSONNEL TO PERFORM THE SERVICES CONTEMPLATED
HEREUNDER.
SONUS REPRESENTS AND WARRANTS THAT IT SHALL NOT USE THE SERVICES OF
ANY PERSON IN CONNECTION WITH ACTIVITIES UNDER THIS AGREEMENT WHO HAS EITHER
BEEN (A) DEBARRED OR SUSPENDED UNDER THE FD&C ACT, OR (B) CHARGED WITH A
VIOLATION OF ANY LAWS OR REGULATIONS RELATING TO THE REGULATION OF ANY DRUG
PRODUCT UNDER THE FD&C ACT OR ANY SIMILAR LAW OR REGULATION IN FORCE IN ANY
COUNTRY OF THE TERRITORY.
7.3
COMPLIANCE WITH LAWS.
SONUS REPRESENTS AND WARRANTS THAT IT SHALL
COMPLY, AND SHALL CONTRACTUALLY REQUIRE THAT IT'S AFFILIATES AND THIRD PARTY
CONTRACT MANUFACTURERS COMPLY, WITH ALL APPLICABLE LAWS, GUIDELINES,
REGULATIONS, RULES AND OTHER REQUIREMENTS OF ANY GOVERNMENT OR ANY REGULATORY
AUTHORITY IN PERFORMING ITS OBLIGATIONS HEREUNDER.
7.4
DISCLAIMER OF WARRANTIES.
EXCEPT FOR THE WARRANTIES SET FORTH IN
SECTIONS 7.1, 7.2, AND 7.3 ABOVE, NEITHER PARTY GRANTS, AND EACH PARTY HEREBY
EXPRESSLY DISCLAIMS, ALL WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED,
INCLUDING WITHOUT LIMITATION WARRANTIES OF DESIGN, MERCHANTABILITY, OR FITNESS
FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
7
7.5
LIMITATION OF LIABILITY.
EXCEPT FOR LIABILITY FOR BREACH OF
SECTION 5, NEITHER PARTY SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY ANY
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH THIS
AGREEMENT OR A PARTIES' PERFORMANCE OF ITS OBLIGATIONS HEREUNDER; PROVIDED,
HOWEVER, THAT THIS SECTION 7.5 SHALL NOT BE CONSTRUED TO LIMIT EITHER PARTY'S
INDEMNIFICATION RIGHTS OR OBLIGATIONS UNDER SECTION 8.
8.
INDEMNIFICATION.
8.1
INDEMNIFICATION BY SONUS.
SONUS SHALL INDEMNIFY, DEFEND AND HOLD
SCHERING, ITS AFFILIATES AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS
(THE "SCHERING INDEMNITEES") HARMLESS FROM AND AGAINST ANY AND ALL THIRD PARTY
CLAIMS, SUITS, PROCEEDINGS, DAMAGES, EXPENSES (INCLUDING COURT COSTS AND
REASONABLE ATTORNEYS' FEES AND EXPENSES) AND RECOVERIES (COLLECTIVELY, "CLAIMS")
TO THE EXTENT THAT SUCH CLAIMS ARISE OUT OF, ARE BASED ON, OR RESULT FROM:
(A) ALLEGATIONS BY THIRD PARTIES THAT THE USE OF THE PRODUCT MANUFACTURED BY OR
ON BEHALF OF SONUS CAUSED PERSONAL INJURY OR DEATH; (B) SONUS' BREACH OF ITS
OBLIGATIONS, REPRESENTATIONS OR WARRANTIES UNDER THIS AGREEMENT; OR (C) THE
WILLFUL MISCONDUCT OR NEGLIGENT ACTS OF SONUS OR ITS DIRECTORS, OFFICERS,
AGENTS, AND EMPLOYEES.
THE FOREGOING INDEMNITY OBLIGATION SHALL NOT APPLY TO
THE EXTENT THAT ANY CLAIM ARISES FROM, IS BASED ON, OR RESULTS FROM:
(I) THE
WILLFUL MISCONDUCT OR NEGLIGENT ACTS OF ANY OF THE SCHERING INDEMNITEES; OR
(II) A BREACH BY SCHERING OF ITS OBLIGATIONS, REPRESENTATIONS OR WARRANTIES
UNDER THE AGREEMENT.
8.2
INDEMNIFICATION BY SCHERING.
SCHERING SHALL INDEMNIFY, DEFEND AND
HOLD SONUS AND SONUS' OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (THE "SONUS
INDEMNITEES") HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS TO THE EXTENT THAT
SUCH CLAIMS ARISE OUT OF, ARE BASED ON, OR RESULT FROM: (A) SCHERING'S