Provision Language
9.0 DISCLAIMERS
9.1 Estoppel Statement/Disclaimer of Express / Implied Warranties. The Company acknowledges that there is some question as to the integrity of ownership of the Licensed Rights and Patents and the Company accepts those risks. The Licensed Rights and Patents are provided to the Company on an “as is” basis. Canada makes no warranties, representations or conditions, express or implied, of any nature, and Canada disclaims all warranties, representations or conditions, for the Licensed Rights, the Patents, the Intellectual Property or the Confidential Information including, without limitation:
9.1.1 merchantability;
9.1.2 quality (either as discussed or with respect to a sample / model);
9.1.3 fitness for any or a particular purpose;
9.1.4 commercial utility or practical purpose;
9.1.5 susceptibility of yielding valuable results or results are free of defects or otherwise harmless;
9.1.6 latent or other defects;
9.1.7 infringement or non-infringement of Patents or other third party rights;
9.1.8 conformity with the laws of any jurisdictions; or
9.1.9 fitness for the Company’s corporate objectives (whether or not expressly or implicitly communicated to Canada).
For greater certainty, no information or advice given by Canada shall create a warranty or representation or condition other than as expressly stated in the License Agreement. The Company hereby accepts the Licensed Rights and the Patents “as is”, with all faults, and the entire risk as to satisfactory quality, performance, accuracy and effort is with the Company. In no event shall Canada be liable for any direct, indirect, incidental, special, exemplary, or consequential damages (including, but not limited to, procurement of substitute goods or services, loss of use, data or profits, or business interruption) however caused and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise) arising in any way out of the exercise of the Licensed Rights by the Company, its Affiliates or sub-licensees, even if advised of the possibility of such damage.
9.2 Disclaimer of Statutorily Implied Warranties. No legal or equitable warranties or conditions implied by law or convention under any domestic, foreign or international legal regime, or from a course of dealing or usage of trade, shall apply to the License Agreement. The Company acknowledges this disclaimer and is estopped from relying on any such representations, warranties or conditions against Canada.
9.3 Confidential Information Without Warranty/No Reliance. The Company shall not rely in any way on the quality, accuracy or completeness of any Confidential Information provided by Canada under the License Agreement. Any use of such Confidential Information shall be at the Company’s sole risk and expense. Any Confidential Information provided to the Company by Canada is without any warranty or guarantee or representation or warranty of any kind whatsoever other than as expressly provided herein.
9.4 No Liability to Canada from Exercise of Rights. The Company undertakes to use the Licensed Rights and apply Confidential Information of Canada entirely at its own risk and under its own responsibility, and that the Company will have no recourse against Canada with respect to any consequences of such application.
9.5 Third Party Representations. The Company shall not represent to any Affiliate or sub-licensee the existence of any warranty or condition concerning the Licensed Rights.
9.6 Disclosure & Due Diligence. The Company acknowledges that:
9.6.1 Canada has made full and frank disclosure of all facts the Company deemed relevant before executing the License Agreement;
9.6.2 The Company has conducted a due diligence search of all matters relevant to the Licensed Rights, the Patents and the License Agreement;
9.6.3 Canada has made all best efforts to identify the significant characteristics of the Licensed Rights and that Canada makes no representation that all the characteristics both favorable and unfavorable have been identified; and
9.6.4 Canada is either under no duty to warn the Company or the Company unconditionally waives any such duty, about the Licensed Rights or Commercialization.
12.0 CORPORATE REPRESENTATIONS & WARRANTIES
12.1 The Company Incorporated & Authorized & Bound. The Company represents and warrants to Canada that as of the Execution Date of this amended and restated License Agreement:
12.1.1 ABILITY it can Commercialize, and the Company has or will have the necessary access to funds, resources, knowledge, facilities and personnel to perform its obligations under the License Agreement, including to use commercially reasonable efforts to Commercialize;
12.1.2 AUTHORIZATION it is authorized and has the corporate power and authority to negotiate, execute, comply with and satisfy its obligations, without qualification, under the License Agreement;
12.1.3 INCORPORATION JURISDICTION it has been duly incorporated and organized under the laws of the state of Delaware and is validly existing under the laws of Iowa;
12.1.4 EXTRA-PROVINCIAL REGISTRATION it is duly qualified, licensed or registered to carry on business in the Province or State of Delaware.
12.1.5 ENFORCEABLE it is bound by the License Agreement, upon execution, and the License Agreement constitutes a legal, valid and binding obligation on the Company, enforceable against the Company in accordance with the terms of the License Agreement, except as those terms may be limited by applicable bankruptcy laws and general principles of equity;
12.1.6 LITIGATION it has no knowledge of any legal proceeding or order pending against or, to the knowledge of the Company, threatened against or affecting, the Company or any of its properties or otherwise that could adversely affect or restrict the ability of the Company to consummate fully the transactions contemplated by this License Agreement (including without limitation the Commercialization) or that in any manner draws into question the validity of this License Agreement;
12.1.7 VERACITY OF STATEMENTS no representation or warranty by the Company contained in this License Agreement and no statement contained in any certificate, schedule or other instrument furnished to Canada pursuant hereto or in connection with the transactions contemplated hereby, contains any untrue statement of a material fact or omits to state a material fact;
12.1.8 INCONSISTENT AGREEMENTS / OBLIGATIONS it has not given any understanding, express or implied, to any third party which would;
12.1.8.1 preclude the Company from fulfilling its obligations under the License Agreement; or
12.1.8.2 cause the Company to breach an agreement with a third party;
12.1.9 NO MARCH IN RIGHTS it is not subject any “march in” or third party rights, (contractual or statutory, contingent or vested) which would give that third party any rights to the Licensed Rights not otherwise explicitly described in the License Agreement; and
12.1.10 NO BREACH OF THIRD PARTY AGREEMENTS its execution of the License Agreement does not contravene its constituent documents or any law, regulation or official directive or any of its obligations or undertakings by which it or any of its assets are bound or cause a limitation on its powers or the powers of its directors to be exceeded.
12.2 Canada Authorized. Canada represents and warrants to the Company as of the Execution Date:
12.2.1 AUTHORIZATION Canada has the power and authority to negotiate, execute and comply with the License Agreement, subject to all applicable laws and the royal prerogative; and
12.2.2.1 no further action is required by or in respect of any governmental or regulatory authority; and
12.2.2.2 the License Agreement is legal, binding and enforceable in accordance with its terms.