Provision Language
9.0 DISCLAIMERS
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9.4 No Liability to Canada from Exercise of Rights. The Company undertakes to use the Licensed Rights and apply Confidential Information of Canada entirely at its own risk and under its own responsibility, and that the Company will have no recourse against Canada with respect to any consequences of such application.
13.0 INDEMNITY, INSURANCE AND LIABILITY ALLOCATION & CAPS
13.1 The Company’s Indemnification. The Company shall:
13.1.1 indemnify; and
13.1.2 save harmless; Canada (and her employees, servants and agents),
13.1.3 from and against all claims, demands, losses, penalties, damages, costs, (including reasonable solicitor and own-client costs and expert witness costs), actions, suits or other proceedings whatsoever, whether groundless or otherwise,
13.1.4 brought or prosecuted in any manner which heretofore or hereafter may be made by a third party against Canada or her employees, servants and agents;
13.1.5 however and whenever arising out of, relating to, occasioned by or attributed to,
a) any acts or conduct (including, without limitation, omissions, misrepresentations, errors and offences) of the Company, its employees, servants, agents, advisors, sub-licensees or Affiliates (whether by reason of negligence or otherwise) in the performance by the Company of the provisions of the License Agreement or any activity undertaken or purported to be undertaken under the authority or pursuant to the terms of the License Agreement, including without limitation, exercise of the Licensed Rights and Commercialization;
b) any infringement or alleged infringement by the Company’s use of the Patents, the Licensed Rights or Licensed Products of proprietary rights of any third party any including, without limitation, patent, trade-mark, copyright or trade secret rights;
c) any claim the Patents, the Licensed Rights or the Licensed Products or any aspect or use thereof by the Company infringes or constitutes misappropriation of the intellectual property rights of any third party; and
d) any claim or demand against the Patents, the Licensed Rights, the Licensed Products or the interest of Canada or the Company therein.
Further, the Company shall not add Canada as a third party in respect of any such claims, actions, suits or other proceedings taken solely against the Company and the Company hereby expressly waives any rights it has against Canada for claims of infringement.
13.2 Indemnity Separate/Continuing. The foregoing indemnity is a continuing obligation, separate and independent from the other obligations of the Company and survives termination of, expiration of, or the acceptance of repudiation of the License Agreement. It is not necessary for Canada to incur expense or make payment before enforcing a right of indemnity conferred hereunder.
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13.4 Canada’s Liability Cap. Canada’s liability for:
13.4.1 breach of the representations, conditions or warranties contained herein or any of the other provisions of the License Agreement or any other breach giving rise to liability, including a breach of a condition or fundamental term or fundamental breach or breaches; or
13.4.2 in any other way arising out of or related to the License Agreement, or
13.4.3 for any cause of action whatsoever and regardless of the form of action (including breach of contract, trust, strict liability, tort [*], or any other legal or equitable theory); shall be limited to the Company’s actual direct (immediate and foreseeable at the time of negotiation to both Parties), provable damages in an amount not to exceed in the aggregate a sum equal to or less than the net consideration received by Canada from the Company under paragraph 5.2 (Royalty Percentage Rate) for the time period commencing from the Execution Date up to and including the date of judicial judgment or arbitrator’s decision.
13.5 Excluded Heads of Damage. Canada shall not be liable to the Company, its employees, servants, agents, successors, assigns, Affiliates or sub-licensees for damages in respect of:
13.5.1 incidental, indirect, special, punitive, exemplary damages;
13.5.2 any economic loss, consequential damages, relational loss, including but not limited to lost business revenue, lost profits, business interruption, failure to realize expected savings, loss of data, loss of business opportunity suffered by the Company or any claim whatsoever and whenever made against the Company by any third party; (whether grounded in tort[*] strict liability, contract, trust or otherwise,) even if:
13.5.3 Canada was advised of the possibility of such damages, or
13.5.4 the damages encompassed by subparagraphs 13.5.1 and 13.5.2 were foreseeable by Canada, or
13.5.5 such damages resulted from a fundamental breach of the License Agreement.
Further, Canada shall have no duty to warn the Company for matters arising directly or indirectly under the License Agreement.
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13.6 No Actions Against Employees. The Company acknowledges and estopped from and waives any rights the Company might have to commence and prosecute any action whatsoever, regardless of form or grounds (including without limitation negligence, misrepresentation, fiduciary, deceit) against any of Canada’s employees, servants, agents or officers, arising out of any
13.6.1 claimed breach of the License Agreement;
13.6.2 transactions under the License Agreement;
13.6.3 negotiations leading to the License Agreement; or
13.6.4 in any other way related to the License Agreement.
For greater clarity, the Company’s remedies for any breach of or Dispute under the License Agreement, lies only against Canada, and only within the aforementioned parameters prescribed by the License Agreement.
13.7 Notifications. Canada shall notify the Company of any claim that falls within the parameters of the respective indemnification obligations as soon as practical. In any case such notice shall be made forthwith upon notice that a claim may be prosecuted or a cause of action exists.