11.Representations and Warranties
11.1 Mutual Representations and Warranties. Each Party hereby represents, warrants and covenants to the other Parties as follows:
11.1.1 Corporate Existence and Power. It is a company or corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated, and has full corporate power and authority and the legal right to own and operate its property and assets and to carry on its business as it is now being conducted and as contemplated in this Agreement, including, without limitation, the right to grant and transfer the rights granted and transferred hereunder.
11.1.2 Authority and Binding Agreement. As of the Effective Date, (a) it has the corporate power and authority and the legal right to enter into this Agreement and perform its obligations hereunder; (b) it has taken all necessary corporate action on its part required to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder; and (c) this Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid and binding obligation of such Party that is enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization, arrangement, winding-up, moratorium, and similar laws of general application affecting the enforcement of creditors’ rights generally, and subject to general equitable principles, including the fact that the availability of equitable remedies, such as injunctive relief or specific performance, is in the discretion of the court.
11.1.3 No Conflict. Except for the agreements listed on Exhibit F to which it is a party, (and with respect to which such Party makes no representation or warranty): (a) to such Party’s best knowledge after reasonable inquiry, it has not entered, and shall not enter, into any agreement with any Third Party that is in conflict with the rights granted to any other Party under this Agreement, and has not taken and shall not take any action that would in any way prevent it from granting the rights granted to any other Party under this Agreement, or that would otherwise materially conflict with or adversely affect the rights granted to any other Party under this Agreement; and (b) its performance and execution of this Agreement does not and will not result in a breach of any other contract to which it is a party.
11.1.4 Materials. To such Party’s best knowledge after reasonable inquiry, it has complied, or will comply, with all laws and regulations applicable to the collection, handling and use of its Background Materials and Program Materials and related information, and is otherwise authorized to provide its Background Materials and Program Materials to the other Parties for purposes of this Agreement.
11.2 Disclaimer of Representations and Warranties by UBC and AlCana. Alnylam acknowledges that:
(a) Except as specifically set forth herein, UBC and AlCana make no representations, conditions or warranties, either express or implied, regarding the UBC Controlled IP, the Research Program or any Licensed Products. Without limitation, UBC and AlCana specifically disclaim any implied warranty, condition or representation that the UBC Controlled IP, the Research Program or any Licensed Products: (i)correspond with a particular description; (ii) are of merchantable quality; (iii) are fit for a particular purpose; or (iv) are durable for a reasonable period of time.
(b) UBC and AlCana are not liable for any loss, whether direct, consequential, incidental or special, which Alnylam, its Related Parties, or any other Third Parties might suffer arising from any defect, error or fault of the UBC Controlled IP, the Research Program or any Licensed Products, even if UBC or AlCana is aware of the possibility of the defect, error, fault or failure. Alnylam acknowledges that it has been advised by UBC and AlCana to undertake Alnylam’s own due diligence regarding the UBC Controlled IP, the Research Program and any Licensed Products.
(c) Except as specifically set forth herein, nothing in this Agreement:
(i) constitutes a warranty or representation by UBC or AlCana as to title to the UBC Controlled IP or that anything made, used, sold or otherwise disposed of under the Licenses will not infringe the patents, copyrights, trade-marks, industrial designs or other intellectual property rights of any Third Parties, or any patents, copyrights, trade-marks, industrial design or other intellectual property rights owned, in whole or in part, by UBC, or licensed by UBC to any Third Parties;
(ii) constitutes an express or implied warranty or representation by UBC or AlCana that the Payors or their Related Parties have, or will have the freedom to operate or practice the UBC Controlled IP, or the freedom to make, have made, use, sell or otherwise dispose of Licensed Products; or
(iii) except as specifically set forth in Article 7 hereof, imposes an obligation on UBC or AlCana to bring, prosecute or defend actions or suits against Third Parties for infringement of patents, copyrights, trade-marks, industrial designs or other intellectual property or contractual rights.
11.3 Representations and Warranties of AlCana. AlCana represents, warrants and covenants to Alnylam and UBC as follows:
11.3.1 No Third Party Funding. It will not accept funding from, nor enter into agreements with, any Third Party that could result in a claim by that Third Party that the Third Party has rights to any Program Developments, nor will AlCana use any Third Party’s intellectual property in the performance of its obligations hereunder, unless AlCana has obtained either Alnylam’s prior written consent or a license to use such intellectual property from Alnylam for such purpose.
11.3.2 No Debarment. Neither it, nor to its knowledge, any of its Program Participants, has been (a) debarred, convicted, or is subject to a pending debarment or conviction by any government or regulatory agencies, including pursuant to section 306 of the United States Food Drug and Cosmetic Act (“FDCA”), 21 U.S.C. § 335a, (b) listed by any government or regulatory agencies as ineligible to participate in any government healthcare programs or government procurement or non-procurement programs (including in the United States as that term is defined in 42 U.S.C. 1320a-7b(f)), or excluded, debarred, suspended or otherwise made ineligible to participate in any such program, or (c) convicted of a criminal offense related to the provision of healthcare items or services, or is subject to any such pending action. AlCana agrees to inform the other Parties in writing promptly if AlCana or one if its Program Participants becomes subject to the foregoing, or if any action, suit, claim, investigation, or proceeding relating to the foregoing is pending, or to the best of AlCana’s knowledge, is threatened.
11.3.4 AlCana Operations. As of the Effective Date, it has and will maintain the requisite resources and capabilities to perform its obligations under this Agreement and that it will commit material resources (including, without limitation, time of its employees who are Program Participants) to the Research Program.
11.3.5 Absence of Material Impairment. As of the Effective Date, there is no fact known to AlCana that has specific application to AlCana (other than general economic or industry conditions) and that materially threatens the assets, business, prospects, financial condition, or results of operations of AlCana.
11.3.6 Absence of Obligations. As of the Effective Date, AlCana has no obligation to (a) sell or offer to sell a material amount of its securities,(b) incur any indebtedness (other than a typical amount of trade debt incurred in the ordinary course of business), (c) guarantee any indebtedness, or (d) sell all or substantially all of its assets or any material portion of its business or operations.
11.3.7 Compliance with Laws. As of the Effective Date, it has and will maintain compliance in all material respects with all applicable laws, permits, governmental licenses, registrations, approvals, concessions, authorizations, orders, injunctions and decrees with respect to the conduct of its business.
11.3.8 AlCana Employees. (a) As of the Effective Date, each of the individuals party to an Alnylam Consulting Agreement is an employee of AlCana, and shall promptly notify Alnylam in writing if s/he ceases to be an employee of AlCana for any reason, (b) on or prior to the Effective Date each of the individuals party to an Alnylam Consulting Agreement has signed an agreement with Alnylam in the form attached hereto as Exhibit D to terminate his or her Alnylam Consulting Agreement effective the Effective Date, (c) on or prior to the Effective Date each AlCana Program Participant has signed a confidentiality and invention disclosure and assignment agreement (“Invention Disclosure Agreement”) with AlCana reasonably acceptable to Alnylam in both form and substance and (d) neither AlCana nor any AlCana Program Participants are subject to any non-competition, exclusivity or other covenants or obligations that would prohibit or restrict such Program Participants from conducting the Research Program or that would conflict with their obligations under their Invention Disclosure Agreement.
11.4 Limitations on Representations and Warranties. THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS ARTICLE 11 ARE IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM A COURSE OF CONDUCT, PERFORMANCE, DEALING OR OTHERWISE, OR INCLUDING WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. EACH PARTY HEREBY DISCLAIMS ANY REPRESENTATION, OR WARRANTY THAT THE DEVELOPMENT, MANUFACTURE OR COMMERCIALIZATION OF ANY LICENSED PRODUCT PURSUANT TO THIS AGREEMENT WILL BE SUCCESSFUL OR THAT ANY PARTICULAR SALES LEVEL WITH RESPECT TO A LICENSED PRODUCT WILL BE ACHIEVED.