By Palomar. Palomar hereby represents and warrants and covenants to Syneron that (a) Palomar has the full power to enter into this Agreement and to perform its obligations hereunder; (b) except as otherwise set forth in the MGH Agreement, Palomar is the exclusive licensee of the entire right, title and interest in and to the Xxxxxxxx Patents; (c) Palomar has the sole right and authority to enter into this Agreement and grant the rights, licenses, and immunities granted hereunder, without the need for any licenses, releases, consents, approvals or immunities not yet granted or obtained; and (d) Palomar has not previously granted and shall not grant any rights in the Xxxxxxxx Patents that would cause Syneron or Syneron’s Affiliates not to have the sublicense granted in Section 2.1(a).
By Palomar. Palomar represents and warrants to Cutera as of the Effective Date that Exhibit B contains a complete and accurate list of all Patents issued or pending as of the Effective Date that claim priority (directly or indirectly) to one or the other Patent applications that issued as U.S. Patent Nos. 5,595,568 or 5,735,844.
By Palomar. Palomar hereby covenants that Palomar and Palomar Affiliates shall not xxx or assert any claim or counterclaim against any Cutera Parties, or support or encourage any Third Party to do any of the foregoing, on the basis that the manufacture, have manufactured, use, sale, offer for sale or importation of any Cutera Current Products (but no other goods or services) in the Professional Field, occurring before or on the Effective Date, or after the Effective Date until the end of the Term (but not thereafter), constitutes patent infringement of any Subject Palomar Claims. Palomar shall impose the foregoing covenant on any Third Party to which Palomar or any Palomar Affiliate may after the Effective Date Transfer any Subject Palomar Claims in the Professional Field along with the right to enforce the same in the Professional Field. For clarity, nothing contained in this Section 5.6(a) shall limit any remedies under any Patents in the Consumer Field.
By Palomar. (i) Palomar and Palomar Affiliates shall not bring, pursue or maintain, or cause or encourage any Palomar Sublicensee or Third Party to bring, pursue or maintain, any claim or other assertion in any court or other governmental forum of competent jurisdiction (including any patent office) seeking a judgment or other decision that any claims of the Cynosure Patents are invalid or unenforceable or not patentable or otherwise not proper (any such claim or other assertion, a “Cynosure Patent Challenge”). In the event that any Cynosure Patent Challenge is brought, pursued or maintained in contravention of this Section 8.6(b), Palomar and Palomar Affiliates each understands and agrees that, in addition and without prejudice to any of Cynosure’s other rights or remedies hereunder, (i) Palomar and Palomar Affiliates shall be in material breach of this Agreement, and (ii) Palomar and Palomar Affiliates shall reimburse Cynosure for all reasonable costs and expenses of attorneys, professionals and accountants incurred by Cynosure to respond to and defend any such Cynosure Patent Challenge.
By Palomar. (i) Each Palomar Releasor (as defined in the Settlement Agreement) does hereby, jointly and severally, remise, release and forever discharge the Released Axxx Entities (as defined in the Settlement Agreement) of and from any and all Trade Dress Claims which the Palomar Releasors now have or ever had against the Released Axxx Entities, whether or not the facts giving rise to such Trade Dress Claims are now known or unknown, from the first day of the world to the Effective Date (but not thereafter). It is the intention of the Palomar Releasors fully, finally and forever to release the Released Axxx Entities from Trade Dress Claims released by this Section 6(a). In furtherance of such intention, this release shall be and remain in effect notwithstanding the discovery subsequent to the Effective Date of any presently existing fact.
By Palomar. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT BY PROVISIONS STATING THAT PALOMAR “REPRESENTS” AND/OR “WARRANTS”, (1) PALOMAR HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, WITH RESPECT TO ANY INTELLECTUAL PROPERTY OWNED OR IN-LICENSED BY PALOMAR, JOINT IP OR CONFIDENTIAL INFORMATION OF PALOMAR, INCLUDING ANY REPRESENTATION OR WARRANTY OF QUALITY, TITLE, NONINFRINGEMENT, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, AND (2) WITHOUT LIMITING THE FOREGOING, PALOMAR EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION (A) AS TO THE VALIDITY OR SCOPE OF ANY OF THE INTELLECTUAL PROPERTY RIGHTS ASSIGNED, LICENSED OR SUBLICENSED HEREUNDER, (B) THAT ANY PRODUCTS, OR ANY ACTIVITIES OF THE PARTIES CONTEMPLATED BY THIS AGREEMENT, SHALL BE FREE FROM INFRINGEMENT, MISAPPROPRIATION OR MISUSE OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, OR (C) AS TO THE QUALITY OR PERFORMANCE OF ANY INFORMATION OR INTELLECTUAL PROPERTY OR ANY PRODUCTS.
By Palomar. Each of Palomar and all Palomar Affiliates, together with (as applicable) their respective officers, directors, employees, shareholders, insurers, agents, trustees, attorneys, heirs, administrators, executors, successors and assigns (collectively, “Palomar Releasors”), does hereby, jointly and severally, remise, release and forever discharge Cutera and all Cutera Covenanting Affiliates, together with (as applicable) their officers, directors, employees, shareholders, insurers, licensees, sublicensees, customers, agents, trustees, attorneys, parents, subsidiaries, successors and assigns (collectively, the “Released Cutera Entities”), of and from any and all Claims which the Palomar Releasors now have or ever had against the Released Cutera Entities, whether or not the facts giving rise to such Claims are now known or unknown, from the first day of the world to the Effective Date (but not thereafter), which Claims are asserted or could have been asserted in the Lawsuits. It is the intention of the Palomar Releasors fully, finally and forever to release the Released Cutera Entities from Claims released by this Section ý4(c)(i). In furtherance of such intention, this release shall be and remain in effect notwithstanding the discovery subsequent to the Effective Date of any presently existing fact. (ii)
By Palomar. In partial consideration of the various terms of this Agreement, Palomar and Palomar Affiliates hereby covenant not to xxx, or support or assist any Third Parties in suing, any Released Laserscope Entities (as defined in Section 7.2(a), but excluding licensees or sublicensees of Laserscope or Laserscope Affiliates) for infringement of any Patent that is owned or in-licensed by Palomar or any Palomar Affiliates as of the Execution Date or as to which Palomar or any Palomar Affiliates has the right to xxx as of the Execution Date, together with any other Patent claiming priority (directly or indirectly) thereto (collectively, the “Palomar Patents”), but excluding the Xxxxxxxx Patents, by the manufacture, use, sale, offer for sale or importation of any Lyra Laser System, Gemini Laser System, Xxxxx System, Aura Laser System, Venus Laser System, Greenlight HPS or PV Systems, StoneLight Laser System, 800 Series System, or Orion 532/1064 nm Laser System, which Orion 532/1064 nm Laser System Laserscope hereby represents and warrants has never been marketed or Sold by Laserscope or any Laserscope Affiliates for hair removal, together with all handpieces and associated cables, scanners and surgical fibers, in each case limited to the form those products are sold and to the treatments for which those products are marketed by Laserscope prior to or as of the Execution Date, and in the Professional Field only (collectively, the “Laserscope Products”). Palomar shall impose the foregoing covenant not to xxx on any Third Party to which Palomar or any Palomar Affiliate may after the Execution Date Transfer any of the Palomar Patents with respect to the Professional Field along with the right to enforce the same in the Professional Field to the extent applicable to the Laserscope Products. For clarity, nothing contained in this Section 5.3(b) shall limit any remedies under any Patents in the Consumer Field.
By Palomar. Palomar hereby covenants that Palomar and Palomar Affiliates shall not xxx or assert any claim or counterclaim against any Cutera Parties, or support or encourage any Third Party to do any of the foregoing, on the basis that the manufacture, have manufactured, use, sale, offer for sale or importation of any Cutera Current Products (but no other goods or services) in the Professional Field, occurring before or on the Effective Date, or after the Effective Date until the end of the Term (but not thereafter), constitutes patent infringement of any Subject Palomar Claims. Palomar shall impose the foregoing covenant on any Third Party to which Palomar or any Palomar Affiliate may after the Effective Date Transfer any Subject Palomar Claims in the Professional Field along with the right to enforce the same in the Professional Field. For clarity, nothing contained in this Section 5.6(a) shall limit any remedies under any Patents in the Consumer Field. (b) By Cutera. Cutera hereby covenants that Cutera and Cutera Covenanting Affiliates shall not xxx or assert any claim or counterclaim against any Palomar Parties, or support or encourage any Third Party to do any of the foregoing, on the basis that the manufacture, have manufactured, use, sale, offer for sale or importation of any Palomar Current Products (but no other goods or services) in the Professional Field, occurring before or on the Effective Date, or after the Effective Date until the end of the Term (but not thereafter), constitutes patent infringement of any Subject Cutera Claims. Cutera shall impose the foregoing covenant on any Third Party to which Cutera or any Cutera Covenanting Affiliate may after the Effective Date Transfer any Subject Cutera Claims in the Professional Field along with the right to enforce the same in the Professional Field. For clarity, nothing contained in this Section 5.6(b) shall limit any remedies under any Patents in the Consumer Field. (c)
