Provision Language
9. Liability and Indemnity
9.1 The MPPF shall be held jointly and severally liable with each Sublicensee for any breach of a Sublicence by such Sublicensee.
9.2 The MPPF undertakes to indemnify, defend and hold harmless ViiV, its Affiliates and each of their respective officers, directors, shareholders, representatives, agents, employees, successors and assigns (each an “Indemnified Person”) in respect of any and all losses, claims, liabilities, costs, awards, fines, penalties, damages and expenses (including, legal costs and other professional expenses) of any nature whatsoever and whether or not reasonably foreseeable or avoidable (“Losses”) arising out of, or in connection with any claim by a Third Party relating to:
(A) any breach by the MPPF of any provisions of this Agreement;
(B) any negligence or wilful misconduct by or on behalf of the MPPF; and/or
(C) any breach of a Sublicence by the MPPF or any Sublicensee,
except to the extent arising or resulting from ViiV’s negligence or wilful misconduct.
9.3 If ViiV exercises its rights under Clause 9.2, ViiV shall: (i) provide the MPPF with prompt written notice of such Third Party claims; and (ii) grant the MPPF the right to control the defence or negotiation of settlement of such Third Party claims (except to the extent such claims relate to the validity or enforcement of Patent Rights); and (iii) make available all reasonable assistance which is reasonably requested by the MPPF in defending any claims (at the MPPF’s cost).
9.4 ViiV will not be liable to the MPPF for any Losses incurred by the MPPF as a result of: (i) the MPPF’s exercise of the rights granted to it under this Agreement; or (ii) a Sublicensee’s exercise of the rights granted to it under a Sublicence, in both cases including any Losses in relation to any infringement of the intellectual property rights of any Third Party.
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
16. EXCLUSION OF LIABILITY
Neither Licensor nor ViiV shall be responsible to Licensee or to any Third Party for any damages or losses resulting, directly or indirectly from Licensee’s or any Approved Sublicensee’s manufacture, packaging, labelling, receipt, shipping, handling, storage, use, importation, marketing, or sale of the Licensed Compound or Licensed Product or any other acts or omissions of Licensee arising out of this Agreement.
17. INDEMNIFICATION
17.1 Subject to Clause 17.2, the Licensee will indemnify, defend and hold harmless the Licensor, ViiV, each of their Affiliates and each of their respective officers, directors, shareholders, representatives, agents, employees, successors and assigns (each an “Indemnified Person”) for any loss, liability and cost, including reasonable attorney’s and expert’s fees (“Losses”), that arise from or in connection with the Licensee’s:
17.1.1 breach of this Agreement; or
17.1.2 exercise of its rights pursuant to this Agreement (including for the avoidance of doubt any product liability claim relating to the Licensed Product manufactured by or on behalf of the Licensee pursuant to this Agreement).
17.2 The indemnification obligation under Clause 17.1 shall not apply to the extent any Losses arise out of negligence or wilful misconduct by Licensor, ViiV, any of their Affiliates or any of their respective officers, directors, shareholders, representatives, agents, employees, successors and assigns.
17.3 Licensor shall, or shall procure that the Indemnified Person shall, promptly notify the Licensee when it becomes aware of any claim under Clause 17.1. Subject to Clauses 14.4, the Indemnified Person and the Licensee will agree on the appropriate party to assume control of the defence or negotiation of settlement and will agree to make available all reasonable assistance in defending any claims.
17.4 Clause 17.1 may be enforced by each Indemnified Person against the Licensee under the Contracts (Rights of Third Parties) Act 1999.