Provision Language
11. WARRANTIES AND LIABILITY
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11.4. EXCEPT FOR A BREACH OF CONFIDENTIALITY (CLAUSE 11) OR THE OBLIGATIONS OF INDEMNIFICATIONS (CLAUSE 13), NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITING DAMAGES FOR LOST PROFITS OR LOST REVENUES WHETHER UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, AND REGARDLESS OF WHETHER IT HAS BEEN INFORMED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.
11.5. Nothing in this Agreement limits or excludes either Party’s liability for death, personal injury, any fraud or any liability that, by law, cannot be limited or excluded.
INDEMNITY AND INSURANCE
12. INDEMNITY AND INSURANCE
12.1 Indemnification by MPP. MPP will indemnify, defend, and hold harmless MedinCell and its Affiliates, and their respective officers, directors, regents, employees, and agents (each, an “Indemnitee“) from all Third Party suits, actions, claims, liabilities, demands, damages, losses, or expenses (including reasonable attorneys’ and investigative expenses) or judgments, whether for money or equitable relief relating to or arising out of (each, a “Claim“):
(i) any material breach by MPP of any of its obligations, representations or warranties under this Agreement;
(ii) any gross negligence or willful misconduct by or on behalf of MPP;
(iii) MPP’s (or its Affiliates and MPP Sub-licensees’) use and practice otherwise of the Licensed Patents and Licensed Know-How, including claims and threatened claims based on:
(i) product liability, bodily injury, risk of bodily injury, death or property damage;
(ii) infringement or misappropriation of Third Party patents, copyrights, trademarks or other intellectual property rights; or
(iii) the failure to comply with applicable laws related to the matters referred to in the foregoing with respect to the Final Product except in any such case for Losses and Claims to the extent resulting from the gross negligence, recklessness or willful misconduct of MedinCell.
12.2 Indemnification by MedinCell. MedinCell will indemnify, defend, and hold harmless MPP and their respective officers, directors, regents, employees, and agents (each, an “Indemnitee“) from all Third Party suits, actions, claims, liabilities, demands, damages, losses, or expenses (including reasonable attorneys’ and investigative expenses) or judgments, whether for money or equitable relief relating to or arising out of (each, a “Claim“):
(i) any material breach by MedinCell of any of its obligations, representations, warranties under this Agreement;
(ii) any gross negligence or willful misconduct by or on behalf of MedinCell.
12.3. Procedure. In connection with any Claim for which MedinCell seeks indemnification from MPP pursuant to this Agreement, MedinCell shall: (a) give MPP prompt written notice of the Claim; provided, however, that failure to provide such notice shall not relieve MPP from its liability or obligation hereunder, except to the extent of any material prejudice as a direct result of such failure; (b) cooperate with MPP, at MPP’s expense, in connection with the defense and settlement of the Claim; and (c) permit MPP to control the defense and settlement of the Claim; provided, however, that MPP may not settle the Claim without MedinCell’s prior written consent, which shall not be unreasonably withheld or delayed, in the event that such settlement materially adversely impacts MedinCell’s rights or obligations. Further, MedinCell shall have the right to participate (but not control) and be represented in any suit or action by advisory counsel of its selection and at its own expense.
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Schedule 3 Development Agreement Term Sheet
5. Development Partner’s Release and Indemnification
5.1. Release. The following language will be included in all Development Partner agreements: “The Development Partner hereby releases MedinCell and its regents, employees, and agents forever from any suits, actions, claims, liabilities, demands, damages, losses, or expenses (including reasonable attorneys’ and investigative expenses) relating to or arising out of (a) the development, manufacture, use, of Licensed Technology; or (b) the assigning or sub-licensing of Development Partner’s rights under the Development Agreement provided however such liabilities are not resulting from the MedinCell’s negligence or willful misconduct.
5.2. Indemnification. Development Partner will indemnify, defend, and hold harmless MedinCell, its Affiliates and their respective officers, directors, employees, and agents (each, an “Indemnitee“) from all Third Party claims, suits, actions, liabilities, demands, damages, losses, or expenses (including reasonable attorneys’ and legal expenses and costs of litigation) arising out of, directly or indirectly (each, a “Claim“):
i. Any breach by the Development Partner’s of any provisions of this Development Agreement;
ii. Infringement or misappropriation by the Development Partner of a Third Party patent, copyright, trademark or other intellectual property right;
iii. Any negligence, willful misconduct by or on behalf of the MPP Sub-licensee;
iv. the exercise of any rights with respect to the Final Product, including, without limitation, personal injury, property damage, breach of contract and warranty and products-liability claims relating to a Final Product, provided that the Development Partner will not have obligations to the extent resulting from the MedinCell’s negligence or willful misconduct.
Schedule 4 Commercialisation Agreement Term Sheet
6. Indemnity: Commercialisation Partner will indemnify, defend, and hold harmless MedinCell and its regents, employees, and agents (each, an “Indemnitee“) from all third party suits, actions, claims, liabilities, demands, damages, losses, or expenses (including reasonable attorneys’ and investigative expenses) arising out of, directly or indirectly (each a “Claim“):
i. Any breach by the Commercialisation Partner’s of any provisions of this Commercialisation Agreement;
ii. Infringement or misappropriation by the Commercialisation Partner of a Third Party patent, copyright, trademark or other intellectual property right;
iii. Any negligence, willful misconduct by or on behalf of the Commercialisation Partner;
iv. Commercialisation Partner’s exercise of any rights with respect to the Final Product, including, without limitation, personal injury, property damage, breach of contract and warranty and products-liability claims relating to the Final Product, provided that the Commercialisation Partner will not have obligations to the extent resulting from the MedinCell’s negligence or willful misconduct.