OF THE
EXECUTION DATE, AND COVENANTS TO CERUS, THAT:
(A)
BAXTER IS THE SOLE OWNER, OR JOINT OWNER
WITH CERUS, OF ALL RIGHT, TITLE AND INTEREST IN AND TO THE LICENSED PATENTS AND
LICENSED MATERIALS;
(B)
WITH REGARD TO THE LICENSED PATENTS AND THE
LICENSED MATERIALS, BAXTER HAS ALL SUFFICIENT RIGHTS NECESSARY TO GRANT THE
LICENSE TO CERUS IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT;
(C)
BAXTER IS NOT IN DEFAULT OR BREACH OF ANY
AGREEMENT OR LICENSE UNDER WHICH IT HAS ACQUIRED ANY RIGHTS TO LICENSE THE
RIGHTS LICENSED TO CERUS HEREUNDER;
(D)
THE INFORMATION AND MATERIALS SET FORTH IN
THE LICENSED MATERIALS, AND THE RIGHTS LICENSED HEREUNDER, ARE ALL THAT IS
REASONABLY NECESSARY FOR CERUS TO MANUFACTURE THE PRODUCTS AND BAXTER HAS BEEN
SUCCESSFULLY MANUFACTURING THE CURRENT CONFIGURATION OF THE PLATELET SYSTEM
MARKETED IN EUROPE WITH ONLY SUCH INFORMATION, MATERIALS AND RIGHTS;
(E)
BAXTER HAS NOT GRANTED TO ANY OTHER PERSON
ANY RIGHTS, LICENSES OR PRIVILEGES IN THE LICENSED PATENTS IN THE TERRITORY AND
IS NOT A PARTY TO ANY AGREEMENTS, REGULATIONS OR COVENANTS WHICH WOULD REQUIRE
THIRD PARTY CONSENTS, WAIVERS AND AUTHORIZATIONS (INCLUDING ANY GOVERNMENT
CONSENTS, WAIVERS OR AUTHORIZATIONS) NECESSARY OR APPROPRIATE FOR CONSUMMATION
OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT;
(F)
BAXTER SHALL NOT IMPAIR OR OTHERWISE
ADVERSELY AFFECT THE RIGHTS OF CERUS IN ANY OF THE LICENSED PATENTS OR LICENSED
MATERIALS THROUGH ANY ACTION OR OMISSION THAT BAXTER KNOWS, OR SHOULD KNOW,
WOULD IMPAIR OR OTHERWISE ADVERSELY AFFECT SUCH RIGHTS;
(G)
BAXTER HAS TAKEN AND WILL TAKE ALL ACTIONS
REASONABLY NECESSARY TO PROTECT THE LICENSED PATENTS (INCLUDING REGISTERING THE
SAME IN JURISDICTIONS DETERMINED BY BAXTER IN ITS REASONABLE DISCRETION, AND ALL
SUCH REGISTERED LICENSED PATENTS HAVE NOT BEEN CANCELED OR ABANDONED OR
PERMITTED TO LAPSE);
(H)
THE LICENSED PATENTS AND THE LICENSED
MATERIALS ARE NOT SUBJECT TO ANY LIEN OR OTHER ENCUMBRANCE; AND
(I)
BAXTER HAS NOT RECEIVED ANY NOTICE
INDICATING THAT SALE, OFFER FOR SALE, IMPORT AND MANUFACTURE OF THE PRODUCTS,
AND USE OF SUCH PRODUCTS BY CUSTOMERS OF CERUS AND CERUS' USE OF THE LICENSED
MATERIALS, WOULD INFRINGE, MISAPPROPRIATE OR VIOLATE ANY ISSUED PATENT THAT HAS
NOT BEEN DECLARED INVALID OR UNENFORCEABLE BY A FINAL, NON-APPEALABLE COURT
ORDER, OR ANY COPYRIGHT, TRADEMARK, TRADE SECRET, CONFIDENTIAL INFORMATION OR
OTHER INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PERSON.
8.3
DISCLAIMER OF WARRANTY.
EXCEPT AS PROVIDED
HEREIN, BAXTER MAKES NO OTHER WARRANTIES UNDER THIS AGREEMENT, EXPRESS OR
IMPLIED,
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
16
INCLUDING, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE,
OR NONINFRINGEMENT.
8.4
DISCLAIMER OF DAMAGES; LIMITATION OF
LIABILITY.
IN NO EVENT SHALL ANY PARTY BE LIABLE FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES REGARDLESS OF WHETHER SUCH PARTY SHALL BE ADVISED, SHALL
HAVE OTHER REASON TO KNOW, OR IN FACT SHALL KNOW OF THE FOREGOING, IN EXCESS