Xxxxxx Corp. II hereby grants DURA an exclusive, royalty-free, irrevocable, perpetual, worldwide license to use the Program Technology, including technology relating to enhancements to Xxxxxx technology or any next generation inhaler system in which Xxxxxx Corp. II has rights, to develop, have developed, make, have made, use, sell, have sold, supply and import any products other than the Xxxxxx Products.
Xxxxxx Corp is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware with full corporate power and authority adequate for executing and delivering and performing its obligations under this Agreement.
Xxxxxx Corp. II represents, warrants and covenants to DURA, DDSI and Xxxxxx Corp. as follows:
Xxxxxx Corp. II shall not enter into any agreement, make any commitment, take any action or fail to take any action that would contravene any material provisions of, or materially derogate or restrict any of the rights or licenses granted to DURA under, this Agreement;
Xxxxxx Corp. II agrees to abide and be bound by the terms of the sublicenses granted to it in accordance with the terms of this Agreement by DURA, DDSI and/or Xxxxxx Corp. under any Third Party Agreement or under any agreement with a third party;
Xxxxxx Corp. II and DURA, whether by judgment or settlement, shall be retained by Xxxxxx Corp. II or DURA pro rata according to the respective percentages of expenses borne by them in enforcing such Patent Rights. Neither DURA nor Xxxxxx Corp. II shall enter into any settlement that includes the grant of a license under, agreement not to enforce, or any statement prejudicial to the validity or enforceability of any Patent Rights without the consent of the other, which consent shall not be unreasonably withheld.
Xxxxxx Corp. II Indemnitee shall promptly notify DURA of any Claim with respect to which an Xxxxxx Corp. II Indemnitee is seeking indemnification hereunder, upon becoming aware thereof, and permit DURA at DURA's cost to defend against such Claim and shall cooperate in the defense thereof.
Xxxxxx Corp. II shall indemnify the DURA Indemnitees, the DDSI Indemnitees and the Xxxxxx Corp. Indemnitees, pay on demand and protect, defend, save and hold harmless each DURA Indemnitee, DDSI Indemnitee or Xxxxxx Corp. Indemnitee from and against any and all Claims incurred by or asserted against any DURA Indemnitee, DDSI Indemnitee or Xxxxxx Corp. Indemnitee of whatever kind or nature, including, without limitation, any claim or liability based upon negligence, warranty, strict liability, violation of government regulation or infringement of patent or other propriety rights, arising from or occurring as a result of (a) any use of the Program Technology by Xxxxxx Corp. II or any sublicensee of Xxxxxx Corp. II (other than the use of such by DURA, DDSI or Xxxxxx Corp. whether pursuant to the Agreements or otherwise) or (b) subject to Section 5.3.2, any breach of the Agreements by Xxxxxx Corp. II, except, with respect to DURA Indemnitees, in cases in which Claims are based upon the gross negligence or willful misconduct of a DURA Indemnitee or, except with respect to DDSI Indemnitees, in cases in which Claims are based upon the gross negligence or willful misconduct of a DDSI Indemnitee or, except with respect to Xxxxxx Corp. Indemnitees, in cases in which Claims are based upon the gross negligence or willful misconduct of a Xxxxxx Corp.
Xxxxxx Corp. II acknowledges that DURA may elect to subcontract to third parties a portion of the Development. Xxxxxx Corp. II acknowledges and agrees that in performing the Development, DURA may, and is hereby authorized to, without the prior written consent of Xxxxxx Corp. II, engage or agree or otherwise collaborate with other Persons, including, without limitation, Affiliates of DURA or institutions performing other development activities for DURA, to provide assistance in carrying out the Development.
Xxxxxx Corp. II shall make such payment within fifteen (15) days after the delivery of such statement from DURA.
