5.5. Claimed Infringement.
(a) In the event that a third party at any time provides written notice of a claim to, or brings an action, suit or proceeding against, either Party or any of their respective affiliates or sublicensees, claiming infringement of its patent rights or copyrights or unauthorized use or misappropriation of its technology, based upon an assertion or claim arising out of the development, manufacture, use or sale of Licensed Products, such Party shall promptly notify the other Party of the claim or the commencement of such action, suit or proceeding, enclosing a copy of the claim and/or all papers served. At the request of CPDC, Fusion shall provide to Fusion advice regarding the technical merits of any such claim.
(b) Fusion shall defend CPDC at Fusions cost and expense, and will indemnify and hold harmless CPDC, from and against any and all claims, losses, costs, damages, fees and expenses arising out of or in connection with (i) the infringement or alleged infringement by a Licensed Product of any United States or foreign patent, copyright, trade secret or other intellectual property right of any third party and any settlements relating thereto, and (ii) product liability and manufacturers liability claims arising from the sale and use of Licensed Products; provided that Fusion shall have sole control and authority with respect to the defense or settlement of any such claim or action and CPDC shall cooperate fully with Fusion in the defense or settlement of any such claim or action. In the event that any Licensed Product becomes, or in CPDCs opinion is likely to become, the subject of a claim of infringement of any United States or foreign patent, copyright, trade secret or other intellectual property right of any third party, CPDC may at its option either secure for Fusion the right to continue using the CPDC Patent Rights, CPDC Technology Rights and the Licensed Product, replace or modify the CPDC Patent Rights, CPDC Technology Rights and the Licensed Product to make it non-infringing without impairment of function or if neither of the foregoing alternatives is reasonably available to CPDC, terminate Fusions rights and licenses to the Licensed Product under this Agreement.
(c) The provisions of Section 5.5(b) notwithstanding, CPDC shall not have any liability under Section 5.5(b) to the extent that any infringement or claim results from: (i) use of the Licensed Product in combination with some other product or pharmaceutical formulation not supplied by CPDC where the Licensed Product itself would not be infringing; or (ii) modifications of the Licensed Product where the Licensed Product, if not modified by or for Fusion, would not be infringing. In addition, in no event shall CPDC be liable to, alone or in contribution, or required to indemnify, Fusion or any of its shareholders, directors, officers or affiliates for any consequential, incidental, indirect, special, exemplary or punitive damages (including loss of actual or anticipated profits, loss by reason of non-operation; or loss of use or productivity), regardless of whether such liability arises out of breach of contract, statute, guarantee or warranty, tort, product liability, indemnity, contribution, strict liability or any other legal theory.
(d) This Section 5.5 states the entire responsibility of CPDC under this Agreement in the case of any claimed infringement or violation of any third partys rights or unauthorized use or misappropriation of any third partys technology.
6. Confidential Information:
6.1. Treatment of Confidential Information. The Parties have previously signed a Mutual Non-Disclosure Agreement on [***] governing the exchange and care of Confidential Information between the Parties, and, for the avoidance of doubt, the [***] agreement shall have precedence over the treatment of all Confidential Information. Each Party hereto shall maintain the Confidential Information of the other party in confidence, and shall not directly or indirectly