Provision Language
9. Liability and Indemnity
[…]
9.5 EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHER THIRD PARTY RIGHTS, VALIDITY OR ENFORCEABILITY OF INTELLECTUAL PROPERTY RIGHTS, THE GRANT OF ANY PENDING PATENT APPLICATIONS, OR RELEVANCE OF THE PATENT RIGHTS TO THE COMPOUND OR PRODUCT, ARE MADE OR GIVEN BY OR ON BEHALF OF VIIV AND, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ALL REPRESENTATIONS AND WARRANTIES, WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, ARE HEREBY EXPRESSLY EXCLUDED. IN PARTICULAR NO REPRESENTATION OR WARRANTY IS MADE IN RESPECT OF THE ACCURACY OF ANY DETAILS PROVIDED IN RESPECT OF THE PATENT RIGHTS INCLUDING THOSE SET OUT IN APPENDIX C OF THE SUBLICENCE. Notwithstanding the foregoing, nothing in this Agreement shall limit or exclude the liability of either Party for death or personal injury resulting from negligence or fraud or fraudulent misrepresentation or other matters, the exclusion of liability for which is not allowable under Applicable Law.
Schedule 2 – Form of Sublicense
15. REPRESENTATIONS AND WARRANTIES
15.1 Mutual representations and warranties. Each Party represents and warrants that:
15.1.1 it has power, capacity and authority to enter into and perform its obligations under this Agreement; and
15.1.2 this Agreement will be executed by its duly authorised representative(s) and, once executed, will constitute its legal, valid and binding obligations.
15.2 Licensee representations and warranties. Licensee represents and warrants that:
15.2.1 All information provided by Licensee to Licensor during the Selection Process is complete, truthful and accurate in all respects; and
15.2.2 It has the experience, capacity and capability to manufacture, sell or otherwise supply the Licensed Products to enable broad access to the Licensed Product in the Permitted Market.
15.3 Disclaimer. Except as provided by Licensor under Clause 15.1, Licensor, make no representations and extend no warranties of any kind, express or implied, including any express or implied warranties of merchantability or fitness for a particular purpose, with respect to (a) the Patent Rights, (b) license granted by Licensor hereunder, (c) the Licensed Compound, (d) the Licensed Products, or any other matter. Furthermore, nothing in this Agreement shall be construed as a warranty that the information set out in Appendix C accurately reflects the status of ViiV’s patents and patent applications relating to the Compound and/or Products, or that any Patent Rights is valid or enforceable, or that the Licensor’s or Licensee’s use of the Patent Rights, Licensed Compound, or Licensed Product as contemplated hereunder will not infringe any patent rights or other intellectual property rights of any Third Party. Licensor, also make no representation or warranty that Licensee’s use of the Licensed Compound, or Licensed Product will not infringe any patent rights or other intellectual property rights (other than the Patent Rights) of ViiV or its Affiliates. Licensor also does not give any warranty, express or implied, with regard to the safety or efficacy of the Compound, or Product and it shall be the sole responsibility of Licensee to ensure such safety or efficacy with regard to the Licenced Compound and Licenced Product. Notwithstanding the foregoing, nothing in this Agreement shall limit or exclude the liability of either Party for death or personal injury resulting from negligence or fraud or fraudulent misrepresentation or other matters, the exclusion of liability for which is not allowable under Applicable Law.
15.4 Licensee acknowledgment. The Licensee acknowledges:
15.4.1 Clause 9.5 of the Head Licence;
15.4.2 that in entering into this Agreement, the Licensee has independently evaluated any information supplied by the Licensor (including, but not limited to, such information related to the Product), as well as the viability of this Agreement, before making its decision to enter into this Agreement and to undertake the commitments and obligations set forth herein; and
15.4.3 neither ViiV or the Licensor in any way endorse the use of any Licensed Product sold or manufactured by the Licensee.