THE OTHER PARTY'S INDEMNITEES FOR ITS LOSSES TO THE EXTENT OF ITS
RESPONSIBILITY, RELATIVE TO THE OTHER PARTY, FOR THE FACTS UNDERLYING THE CLAIM.
9.2
INDEMNIFICATION OF ILI BY ORAL DNA.
ORAL
DNA SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS ILI, ITS AFFILIATES, THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, AND THEIR RESPECTIVE
SUCCESSORS, HEIRS AND ASSIGNS (THE "ILI INDEMNITEES"), AGAINST ANY LOSSES
INCURRED BY OR IMPOSED UPON THE ILI INDEMNITEES, OR ANY ONE OF THEM, AS A DIRECT
RESULT OF CLAIMS ARISING OUT OF (A) THE MATERIAL BREACH BY ORAL DNA OF THIS
AGREEMENT; OR (B) THE MANUFACTURE, DISTRIBUTION OR SALE (INCLUDING, WITHOUT
LIMITATION, THE MANUFACTURE, DISTRIBUTION, PROMOTION, IMPORT, SALE OR USE BY ANY
PERSON) OF ANY LICENSED PRODUCT BY ORAL DNA OR ANY OF ITS AFFILIATES,
SUBLICENSEES, DISTRIBUTORS OR AGENTS, EXCEPT WITH RESPECT TO ANY CLAIM OR LOSSES
THAT RESULT FROM A BREACH OF THIS AGREEMENT BY, OR THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF, ILI; PROVIDED, THAT, WITH RESPECT TO ANY CLAIM FOR WHICH
ILI HAS AN OBLIGATION TO ANY ORAL DNA INDEMNITEE PURSUANT TO SECTION 9.1 AND
ORAL DNA HAS AN OBLIGATION TO ANY ILI INDEMNITEE PURSUANT TO THIS SECTION 9.2,
EACH PARTY SHALL INDEMNIFY EACH OF THE OTHER PARTY'S INDEMNITEES FOR ITS LOSSES
TO THE EXTENT OF ITS RESPONSIBILITY, RELATIVE TO THE OTHER PARTY, FOR THE FACTS
UNDERLYING THE CLAIM.
9.3
CONDITIONS TO INDEMNIFICATION.
A PERSON
SEEKING RECOVERY UNDER THIS ARTICLE 9 (THE "INDEMNIFIED PARTY") IN RESPECT OF A
CLAIM SHALL GIVE PROMPT NOTICE OF SUCH CLAIM TO THE PARTY FROM WHICH RECOVERY IS
SOUGHT (THE "INDEMNIFYING PARTY") AND; PROVIDED THAT THE INDEMNIFYING PARTY IS
NOT CONTESTING ITS OBLIGATION UNDER THIS ARTICLE 9, SHALL PERMIT THE
INDEMNIFYING PARTY TO CONTROL ANY LITIGATION RELATING TO SUCH CLAIM AND THE
DISPOSITION OF SUCH CLAIM; PROVIDED THAT THE INDEMNIFYING PARTY SHALL (A) ACT
REASONABLY AND IN GOOD FAITH WITH RESPECT TO ALL MATTERS RELATING TO THE
SETTLEMENT OR DISPOSITION OF SUCH CLAIM AS THE SETTLEMENT OR DISPOSITION RELATES
TO SUCH INDEMNIFIED PARTY AND (B) NOT SETTLE OR OTHERWISE RESOLVE SUCH CLAIM
WITHOUT THE PRIOR WRITTEN CONSENT OF SUCH INDEMNIFIED PARTY (WHICH CONSENT SHALL
NOT BE UNREASONABLY WITHHELD, CONDITIONED OR DELAYED).
EACH INDEMNIFIED PARTY
SHALL COOPERATE WITH THE INDEMNIFYING PARTY IN ITS DEFENSE OF ANY SUCH CLAIM IN
ALL REASONABLE RESPECTS AND SHALL HAVE THE RIGHT TO BE PRESENT IN PERSON OR
THROUGH COUNSEL AT ALL LEGAL PROCEEDINGS WITH RESPECT TO SUCH CLAIM.
9.4
WARRANTY DISCLAIMER.
EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY WITH
RESPECT TO ANY TECHNOLOGY, GOODS, SERVICES, RIGHTS OR OTHER SUBJECT MATTER OF
THIS AGREEMENT AND EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE AND NONINFRINGEMENT.
9.5
LIMITED LIABILITY.
NOTWITHSTANDING ANYTHING
TO THE CONTRARY IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PARTY OR ANY OF ITS AFFILIATES FOR (I) ANY SPECIAL, PUNITIVE, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION
Portions of this Exhibit were