STATED IN THIS AGREEMENT, NO PARTY MAKES ANY
REPRESENTATIONS OR WARRANTIES AS TO ANY MATTER WHATSOEVER. ACCORDINGLY, EXCEPT
AS EXPRESSLY STATED IN THIS AGREEMENT, EACH PARTY HEREBY EXPRESSLY DISCLAIMS ALL
*
Indicates that certain information contained herein has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
42
CONFIDENTIAL
Execution Version
REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AGAINST NON-INFRINGEMENT OR THE LIKE, INCLUDING (a) THAT ANY SIRNA
PATENT OR TECHNOLOGY OR THE PRACTICE THEREOF OR ANY LICENSED PRODUCTS WILL IN
THE FUTURE BE FREE FROM CLAIMS OF PATENT INFRINGEMENT, INTERFERENCE OR UNLAWFUL
USE OF PROPRIETARY INFORMATION OF ANY PERSON AND (b) OF THE RELIABILITY,
TECHNOLOGICAL OR COMMERCIAL VALUE OR MERCHANTABILITY OF THE SIRNA PATENTS OR ANY
LICENSED PRODUCTS, OR THEIR FITNESS THEREOF FOR ANY PARTICULAR PURPOSE.
11.4 EXCEPT FOR THOSE CLAIMS OF A THIRD PARTY AS MAY BE PAYABLE PURSUANT TO THIS
AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANY
PROVISION IN THIS AGREEMENT TO THE CONTRARY, NEITHER SIRNA, ON THE ONE HAND, NOR
GSK, ON THE OTHER HAND, NOR ANY OF THEIR AFFILIATES, THIRD PARTY LICENSEES OR
REPRESENTATIVES WILL BE LIABLE TO THE OTHER PARTY, ITS AFFILIATES OR ANY OF
THEIR THIRD PARTY LICENSEES OR REPRESENTATIVES FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, RELIANCE OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS
OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT
PRODUCT LIABILITY), INDEMNITY OR CONTRIBUTION, AND IRRESPECTIVE OF WHETHER THAT
PARTY OR ANY REPRESENTATIVE OF THAT PARTY HAS BEEN ADVISED OF, OR OTHERWISE
MIGHT HAVE ANTICIPATED THE POSSIBILITY OF, ANY SUCH LOSS OR DAMAGE. IN ADDITION,
THE LIABILITY OF SIRNA TO GSK WITH RESPECT TO THE SUBJECT MATTER OF ARTICLE 8
FOR ANY PRE-CLINICAL RESEARCH SUPPLY (NOT FOR USE IN HUMANS) HEREUNDER
(REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, IN TORT, OR OTHERWISE)
WILL BE LIMITED TO THE AGGREGATE AMOUNT PAID BY GSK TO SIRNA FOR THE MANUFACTURE
AND SUPPLY BY SIRNA TO GSK OF LEADS, LEAD COMPOUNDS, BACKUP COMPOUNDS, AND
COMPOUNDS.
11.5 GSK hereby agrees to indemnify, defend and hold Sirna, its Affiliates, and
their respective directors, officers, employees, agents and their respective
successors, heirs and assigns (the "Sirna Indemnitees") harmless from and
against any losses, costs, claims, damages, liabilities or expenses (including
reasonable attorneys' and professional fees and other expenses of litigation)
(collectively, "Liabilities") arising out of claims, suits, actions or demands,
in each case brought by a third party or judgments arising therefrom (including
those arising out of personal injury claims) (each a "Claim") as a result of
(a) activities of GSK, its Affiliates or Third Party Licensees, or any Third
Party acting on behalf of or under authorization by GSK in connection with GSK's
Development, manufacture (to the extent GSK or any Third Party acting on behalf