Provision Language
16. Indemnification and Limitation of Liability
16.1 Indemnification by SIIPL. SIIPL will indemnify, defend, and hold harmless VALNEVA, its Affiliates, and their respective directors, officers, employees, and agents (collectively, the “VALNEVA Indemnitees“) from and against [***] suffered by VALNEVA Indemnitees in connection with any suits or claims brought by Third Parties (“VALNEVA Claims“) arising out of or resulting from any bona fide claim with respect to [***] ;. Further, SIIPL will indemnify, defend, and hold harmless VALNEVA Indemnitees of VALNEVA Losses suffered to the extent that resulting from or arising in connection with a VALNEVA Claim based on, resulting from, or arising in connection with [***]. provided, however, that SIIPL shall not be obligated to indemnify, defend or hold harmless VALNEVA Indemnitees from any VALNEVA Claims or for any VALNEVA Losses incurred by VALNEVA Indemnitees to the extent arising out of, or attributable to suits or claims brought by Third Parties in relation to Section 16.2 (i) – (iii).
16.2 Indemnification by VALNEVA. VALNEVA shall indemnify, defend and hold harmless SIIPL and its respective directors, officers, employees, and agents (collectively “SIIPL Indemnitees“) from and against [***] suffered by SIIPL Indemnitees in connection with any suits or claims brought by Third Parties (“SIIPL Claims“) arising out of or resulting from any bona fide claim with respect to [***] provided, however, that VALNEVA shall not be obligated to indemnify, defend or hold harmless SIIPL Indemnitees from any SIIPL Claim or for any SIIPL Losses incurred by SIIPL or a SIIPL Indemnitees to the extent arising out of or attributable to suits or claims brought by Third Parties in relation to Section 16.1 (i) –(ii).
16.3 Liability Cap. The Indemnifying Party’s liability under this Agreement and the Project Agreements is limited to the amount specified in the Sections 14.1 and 14.3.
16.4 Indemnification Procedures.
a. Each indemnified Party shall notify the indemnifying Party in writing (and in reasonable detail) of any suits or claims brought by Third Parties within ten (10) Business Days after receipt by such indemnified Party of notice of the VALNEVA Claim or SIIPL Claim, as the case may be, or otherwise becoming aware of the existence or threatened existence thereof (such VALNEVA Claim or SIIPL Claim being referred to as a “Claim“). Failure to give such notice shall not constitute a defense, in whole or in part, to any claim by an indemnified Party hereunder except to the extent the rights of the indemnifying Party are materially prejudiced by such failure to give notice. The indemnifying Party shall notify the indemnified Party in writing of its intentions as to defense of the Claim or potential Claim in writing within [***] after receipt of notice of the Claim. If the indemnifying Party assumes the defense of a Claim against an indemnified Party, an indemnifying Party shall have no obligation or liability under this Section 16.4 as to any Claim for which settlement or compromise of such Claim or an offer of settlement or compromise of such Claim is made by an indemnified Party without the prior written consent of the indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed.
b. The indemnifying Party shall assume exclusive control of the defense and settlement (including all decisions relating to litigation, defense and appeal) of any such Claim which seeks solely monetary remedies (so long as it has confirmed its indemnification obligation responsibility to such indemnified Party under this Section 16.3 with respect to a given Claim); provided, however, that (i) the indemnifying Party may not settle such Claim in any manner that would require payment by the indemnified Party, or would materially adversely affect the rights granted to the indemnified Party hereunder, or would materially conflict with the terms of this Agreement or the Project Agreements, without first obtaining the indemnified Party’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; and (ii) the conduct of proceedings relating to Patent Rights shall be subject to specific provisions in Section 7.
c. The indemnified Party shall reasonably cooperate with the indemnifying Party in its defense of the Claim (including, without limitation, making documents and records available for review and copying and making Persons within its control available for pertinent testimony in accordance with the confidentiality provisions of Article 13, and neither Party shall be required to divulge privileged material to the other) at the indemnifying Party’s expense. If the indemnifying Party assumes defence of the Claim, an indemnified Party may participate in, but not control, the defense of such Claim using attorneys of its choice and at its sole cost and expense, with such cost and expense not being covered by the indemnifying Party. If an indemnifying Party does not agree to assume the defense of the Claim asserted against the indemnified Party (or does not give notice that it is assuming such defense), or if the indemnifying Party assumes the defense of the Claim in accordance with Section 16.4 yet fails to defend or take other reasonable, timely action, in response to such Claim asserted against the indemnified Party, the indemnified Party shall have the right to defend or take other reasonable action to defend its interests in such proceedings, and shall have the right to litigate, settle or otherwise dispose of any such Claim; provided, however, that no Party shall have the right to settle a Claim in a manner that would adversely affect the rights granted to the other Party hereunder, or would materially conflict with this Agreement or the Project Agreements or would require a payment by the Party, or adversely affect the Party or its Affiliates, without the prior written consent of the Party entitled to control the defense of such Claim.
d. Limitation of liability. In no event shall either Party be liable to the other, or the VALNEVA Indemnitees or the SIIPL Indemnitees, as applicable, for [***]. The foregoing limitation shall not apply, however, to a Party’s indemnification obligations pursuant to this Article 16 or liability arising from the breach of the Intellectual Property Rights provisions under Article 7, the non-compete under Article 12 and the confidentiality obligations under Article 13.