IMCOR SHALL RETAIN THE
RIGHTS TO REPRESENTED BY AT ITS OWN COUNSEL AT IT'S OWN EXPENSE.
IN SUCH EVENT,
FINANCIAL RECOVERIES WILL BE ENTIRELY RETAINED BY KYOSEI.
10
D.
IN ANY ACTION TO ENFORCE ANY OF THE PATENT
RIGHTS, EITHER PARTY, AT THE REQUEST AND EXPENSE OF THE OTHER PARTY SHALL
COOPERATE TO THE FULLEST EXTENT REASONABLY POSSIBLE.
THIS PROVISION SHALL NOT
BE CONSTRUED TO REQUIRE EITHER PARTY TO UNDERTAKE ANY ACTIVITIES, INCLUDING
LEGAL DISCOVERY, AT THE REQUEST OF ANY THIRD PARTY EXCEPT AS MAY BE REQUIRED BY
LAWFUL PROCESS OF A COURT OF COMPETENT JURISDICTION.
14.
REPRESENTATIONS AND DISCLAIMER OF WARRANTY.
A.
IMCOR REPRESENTS AND WARRANTS TO KYOSEI
THAT IT HAS THE RIGHT TO ENTER INTO THIS AGREEMENT AND GRANT THE LICENSES
DESCRIBED HEREIN.
IMCOR REPRESENTS THAT TO ITS KNOWLEDGE THE PATENT RIGHTS WILL
NOT INFRINGE ON ANY RIGHTS OF ANY OTHER PARTY WITH RESPECT TO ITS USE,
MANUFACTURE OR SALE OF IMAGENT AS OF THE DATE OF THIS AGREEMENT.
B.
EXCEPT AS SET FORTH ABOVE, ALL TECHNOLOGY
LICENSED UNDER THIS AGREEMENT IS PROVIDED ON AN "AS IS" BASIS AND IMCOR MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT THERETO.
ALL
LICENSED PRODUCT(S) ARE COVERED BY IMCOR'S STANDARD PUBLISHED WARRANTY (COPIES
OF WHICH ARE AVAILABLE FROM IMCOR).
KYOSEI SHALL MAKE NO REPRESENTATIONS OR
WARRANTIES WITH RESPECT TO THE LICENSED PRODUCT(S) OTHER THAN THOSE SPECIFICALLY
SET FORTH IN SAID WARRANTY.
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NON-INFRINGEMENT,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES
ARISING OUT OF A COURSE OF DEALING, CUSTOM OR TRADE USAGE, AND SETS FORTH
KYOSEI'S AND KYOSEI'S CUSTOMERS' SOLE REMEDIES IN CONNECTION WITH SUCH
WARRANTY.
IN NO EVENT SHALL IMCOR BE LIABLE TO KYOSEI, KYOSEI'S CUSTOMERS OR
ANYONE IN ANY MANNER OR TO ANY EXTENT WITH RESPECT TO THE LICENSED PRODUCT(S)
EXCEPT AS EXPRESSLY STATED HEREIN.
C.
KYOSEI SHALL NOTIFY IMCOR OF ANY
PROCEEDING OR CLAIM RELATING TO THE LICENSED PRODUCT(S) IN THE TERRITORY AND
SHALL PROMPTLY FURNISH IMCOR WITH COPIES OF ALL DOCUMENTS FILED IN CONNECTION
WITH SUCH PROCEEDING OR CLAIM.
11
D.
IN NO EVENT SHALL IMCOR BE LIABLE TO
KYOSEI, OR TO ANY PERSON OR ENTITY CLAIMING THROUGH, ON BEHALF OR AGAINST
KYOSEI, FOR CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING WITHOUT
LIMITATION, LOST PROFITS, REVENUES, ANTICIPATED SALES, BUSINESS OPPORTUNITIES,
GOODWILL OR INTERRUPTION OF BUSINESS), OR PUNITIVE OR EXEMPLARY DAMAGES, WHETHER
IN TORT OR CONTRACT OR PURSUANT TO STATUTE, REGULATION OR OTHERWISE.
KYOSEI
AGREES THAT ANY AMOUNTS IT MAY SPEND IN THE PERFORMANCE OF THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION THE ESTABLISHMENT AND MAINTENANCE OF ADDITIONAL OR
EXISTING SALES, MANAGEMENT, WAREHOUSE, DELIVERY, ADMINISTRATIVE OR OTHER
PERSONNEL, OR OTHER EQUIPMENT OR FACILITIES, ADVERTING AND PROMOTION COSTS, OR
FOR ANY OTHER PURPOSE, SHALL BE SPENT AND INCURRED VOLUNTARILY BY KYOSEI WITH
THE KNOWLEDGE THAT THIS AGREEMENT MAY BE TERMINATED AS PROVIDED IN THIS
AGREEMENT, AND THUS KYOSEI SHALL MAKE NO CLAIM AGAINST IMCOR, AND IMCOR