THE PRODUCT IN THE GSK
TERRITORY; AND
(J)
SEPRACOR HAS NOT FAILED TO FURNISH GSK WITH ANY INFORMATION
REQUESTED BY GSK, OR INTENTIONALLY CONCEALED FROM GSK, ANY INFORMATION IN ITS
POSSESSION WHICH SEPRACOR REASONABLY BELIEVES WOULD BE MATERIAL TO GSK'S
DECISION TO ENTER INTO THIS AGREEMENT AND UNDERTAKE THE COMMITMENTS AND
OBLIGATIONS SET FORTH HEREIN
16.3.
REPRESENTATIONS AND WARRANTIES OF GSK. GSK REPRESENTS AND
WARRANTS TO SEPRACOR THAT, AS OF THE EFFECTIVE DATE IT HAS THE FULL RIGHT AND
AUTHORITY TO GRANT THE RIGHTS GRANTED HEREIN.
16.4.
DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
OR ANY OTHER AGREEMENT CONTEMPLATED HEREUNDER, NEITHER PARTY MAKES ANY
REPRESENTATIONS OR EXTENDS ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, AND EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE OR USE,
NON-INFRINGEMENT, VALIDITY AND ENFORCEABILITY OF PATENTS, OR THE PROSPECTS OR
LIKELIHOOD OF DEVELOPMENT OR COMMERCIAL SUCCESS OF THE PRODUCT. IN NO EVENT WILL
EITHER PARTY BE LIABLE FOR THE OTHER PARTY'S LOST PROFITS, LOSS OF DATA, OR FOR
ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER
CAUSED, ON ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING UNDER ANY CAUSE OF ACTION
AND ARISING IN ANY WAY OUT OF THIS AGREEMENT. THE FOREGOING LIMITATIONS WILL NOT
LIMIT EITHER PARTY'S OBLIGATIONS TO THE OTHER PARTY UNDER SECTION XVII OF THIS
AGREEMENT.
16.5.
PRIOR KNOWLEDGE. NO LIABILITY FOR ANY BREACH OF ANY
REPRESENTATION OR WARRANTY GIVEN BY A PARTY UNDER THIS SECTION 16 SHALL ARISE TO
THE EXTENT TO WHICH THE OTHER PARTY HAS KNOWLEDGE AT THE EFFECTIVE DATE THAT
SUCH REPRESENTATION OR WARRANTY IS UNTRUE OR INACCURATE.
ARTICLE XVII.
INDEMNIFICATION; RECALLS
17.1.
INDEMNIFICATION OF SEPRACOR. GSK SHALL INDEMNIFY AND HOLD
HARMLESS EACH OF SEPRACOR, ITS AFFILIATES AND THE DIRECTORS, OFFICERS,
SHAREHOLDERS AND EMPLOYEES OF SUCH ENTITIES AND THE SUCCESSORS AND ASSIGNS OF
ANY OF THE FOREGOING (THE "SEPRACOR INDEMNITEES"), FROM AND AGAINST ANY AND ALL
LIABILITIES, DAMAGES, PENALTIES, FINES, COSTS AND EXPENSES (INCLUDING,
REASONABLE ATTORNEYS' FEES AND OTHER EXPENSES OF LITIGATION) ("LIABILITIES")
FROM ANY CLAIMS,
CONFIDENTIAL
ACTIONS, SUITS OR PROCEEDINGS BROUGHT BY A THIRD PARTY (A "THIRD PARTY CLAIM")
INCURRED BY ANY SEPRACOR INDEMNITEE, ARISING FROM, OR OCCURRING AS A RESULT OF:
(A) PACKAGING, USE, MARKETING, DISTRIBUTION, IMPORTATION, OFFER FOR SALE OR SALE
OF THE PRODUCT BY GSK, ITS AFFILIATES OR SUBLICENSEES INCLUDING, ANY PRODUCTS
LIABILITY CLAIM (SUBJECT TO AND SHARED IN ACCORDANCE WITH THE MECHANISM SET
FORTH IN SECTION 17.5, BELOW); (B) THE PERFORMANCE OF ANY DEVELOPMENTAL STUDY
REGARDING THE PRODUCT COMMENCED BY GSK, ITS AFFILIATES OR SUBLICENSEES AND (C)
ANY MATERIAL BREACH OF ANY REPRESENTATIONS, WARRANTIES OR COVENANTS BY GSK UNDER
THIS AGREEMENT; EXCEPT TO THE EXTENT SUCH THIRD PARTY CLAIMS FALL WITHIN THE
SCOPE OF THE INDEMNIFICATION OBLIGATIONS OF SEPRACOR SET FORTH IN SECTION 17.2,
BELOW, OR RESULT FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A SEPRACOR
INDEMNITEE.
17.2.
INDEMNIFICATION OF GSK. SEPRACOR SHALL INDEMNIFY AND HOLD