SUITS AGAINST THIRD
PARTIES FOR INFRINGEMENT OF ANY OF THE PATENT RIGHTS; OR
(D)
GRANTING BY IMPLICATION, ESTOPPEL, OR OTHERWISE ANY LICENSES OR
RIGHTS UNDER PATENTS OR OTHER RIGHTS OF VALENTIS OR THIRD PARTIES, REGARDLESS OF
WHETHER SUCH PATENTS OR OTHER RIGHTS ARE DOMINANT OR SUBORDINATE TO ANY PATENT
WITHIN THE PATENT RIGHTS.
(e)
An obligation by Valentis to maintain any of the patent
applications and patents listed on Schedule 1.9 hereto.
7
6.3
NO WARRANTIES.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN
SECTION 6.1, NEITHER PARTY GRANTS ANY WARRANTY, EXPRESS OR IMPLIED, EITHER IN
FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND EACH PARTY
SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF TITLE,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THE
INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
ARTICLE 7.
INDEMNIFICATION
7.1
JUVARIS AGREES TO INDEMNIFY, DEFEND AND HOLD VALENTIS AND ITS
DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS AND AGENTS (EACH, AN
"INDEMNITEE") HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS,
DEMANDS, EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS AND PROFESSIONAL
FEES AND OTHER COSTS OF LITIGATION), LOSSES OR CAUSES OF ACTION BROUGHT BY THIRD
PARTIES (EACH, WHETHER BY A JUVARIS PARTNER OR A JUVARIS CUSTOMER, A
"LIABILITY") ARISING OUT OF (I) THE POSSESSION, MANUFACTURE, USE, SALE OR OTHER
DISPOSITION OF JUVARIS PRODUCTS OR THE PROVISION OF PROCESS DEVELOPMENT, WHETHER
BASED ON BREACH OF WARRANTY, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE; (II)
THE USE BY JUVARIS OR JUVARIS' CUSTOMERS OF THE LICENSED TECHNOLOGY LICENSED
HEREUNDER; (III) ANY BREACH OF A WARRANTY, REPRESENTATION OR COVENANT GRANTED TO
VALENTIS HEREUNDER; OR (IV) THE EXERCISE OF ANY RIGHT GRANTED TO JUVARIS OR A
JUVARIS CUSTOMER PURSUANT TO THIS AGREEMENT; EXCEPT, IN EACH CASE, TO THE EXTENT
DUE TO (A) AN INDEMNITEE'S NEGLIGENCE OR WILLFUL MISCONDUCT OR VIOLATION OF
APPLICABLE LAWS OR BREACH OF ITS REPRESENTATIONS AND WARRANTIES MADE IN ARTICLE
6 ABOVE OR (B) THE INFRINGEMENT OF THE LICENSED TECHNOLOGY ON THE INTELLECTUAL
PROPERTY RIGHTS OF THIRD PARTIES, BUT ONLY TO THE EXTENT SUCH INFRINGEMENT IS
DUE TO THE LICENSED TECHNOLOGY IN THE FORM PROVIDED BY VALENTIS AND NOT DUE TO
ANY MODIFICATIONS MADE TO SUCH LICENSED TECHNOLOGY BY JUVARIS OR ANY JUVARIS
PARTNERS OR JUVARIS CUSTOMERS.
7.2
AN INDEMNITEE THAT INTENDS TO CLAIM INDEMNIFICATION UNDER THIS
ARTICLE 7 SHALL (I) PROMPTLY NOTIFY JUVARIS IN WRITING OF ANY LIABILITY WITH
RESPECT TO WHICH THE INDEMNITEE INTENDS TO CLAIM SUCH INDEMNIFICATION, (II) GIVE
JUVARIS SOLE CONTROL OF THE DEFENSE AND/OR SETTLEMENT THEREOF, AND (III) PROVIDE
JUVARIS, AT JUVARIS' EXPENSE, WITH REASONABLE ASSISTANCE AND FULL INFORMATION
WITH RESPECT TO SUCH LIABILITY.
JUVARIS SHALL NOT SETTLE ANY CLAIM, SUIT OR
PROCEEDING SUBJECT TO THIS ARTICLE 7 OR OTHERWISE CONSENT TO AN ADVERSE JUDGMENT
IN SUCH CLAIM, SUIT OR PROCEEDING IF THE SAME MATERIALLY DIMINISHES THE RIGHTS
OR INTERESTS OF THE INDEMNITEE WITHOUT THE EXPRESS WRITTEN CONSENT OF THE
INDEMNITEE.
NOTWITHSTANDING THE FOREGOING, JUVARIS SHALL HAVE NO OBLIGATIONS
FOR ANY LIABILITY IF THE INDEMNITEE SEEKING INDEMNIFICATION MAKES ANY ADMISSION,
SETTLEMENT OR OTHER