“Data” shall mean recorded information, including but not limited to any reports of research activities, generated in the performance of activities under the Research Plan, including any such information related to gene sequences.
“Research Materials” means any tangible material, including any reagents, chemicals, biologicals and tissue samples provided by one Party for use by another Party in connection with the Research Plan or generated in the conduct of the Research Plan and shall include modifications and unmodified derivatives thereof (the “Original Materials”), and Research Materials shall additionally include any Progeny, Unmodified Derivatives and any of the forgoing materials incorporated in Modifications. “Progeny” means any unmodified descendent from any Original Material; “Unmodified Derivative” means any substance which constitutes an unmodified functional subunit or product expressed by any Original Material; and “Modification” means any substance that contains and/or incorporates a significant or substantial portion of any Original Material, or of Progeny or Unmodified Derivative.
11. Indemnification and Disclaimers
11.1 To the extent permitted by the law under which each Party is constituted, each Party (“Indemnifying Party”) agrees to indemnify, hold harmless, and defend each other Party (“Indemnified Party”) to this Agreement and its officers, trustees, employees, students, representatives and agents, consultants and advisors from and against any and all third party causes of action, claims, suits, legal proceedings, judgments, settlements, damages, penalties, losses, liabilities and costs (including reasonable attorneys’ fees and costs) (each a “Claim”) to the extent arising out of or caused by the Indemnifying Party’s (a) negligent act, negligent omission or willful misconduct in connection with its activities conducted under this Agreement, (b) any use by the Indemnifying Party of Project IP, Data, Research Materials or Products provided or generated hereunder for profit-making or other commercial purposes, including without limitation sale, use in manufacturing, or provision of a commercial product or service based upon the Project IP, Data, Research Materials or Products, or any allegations that the commercialized product or service infringes or violates the valid intellectual property rights of any third party, (c) violation of any applicable laws or regulations in connection with its activities carried out under this Agreement; or (d) employment-related claims made in connection with the performance of activities by the Indemnifying Party under this Agreement. The Indemnifying Party’s liability for Claims shall be reduced or apportioned to the extent the applicable third party’s Claims arising out of the actions referenced above in sub-clauses (a)-(d) were proximately caused by the Indemnified Party’s negligence, willful misconduct, or violation of any applicable laws or regulations, all in connection with the Indemnified Party’s activities conducted under this Agreement. The Indemnified Party may, at its own expense, employ separate counsel to monitor and participate in the defense of any Claim under this Section. Indemnifying Party shall not, without the Indemnified Party’s prior written consent, enter into any settlement, stipulated judgment or other arrangement with respect to such Claims that (i) imposes any obligation on the Indemnified Party, (ii) does not unconditionally release the Indemnified Party from all liability, (iii) would have an adverse effect on the Indemnified Party’s reputation or business, or (iv) admits fault of the Indemnified Party without prior written consent.
11.4 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT NO PARTY SHALL BE LIABLE OR RESPONSIBLE TO ANY OTHER PARTY FOR THE USE BY SUCH OTHER PARTY OF ANY PRODUCT, PROJECT IP, PROJECT RESULTS OR DATA THAT MAY RESULT FROM THE ACTIVITIES CONDUCTED UNDER THIS AGREEMENT. ANY MATERIAL DELIVERED PURSUANT TO THIS AGREEMENT IS UNDERSTOOD TO BE EXPERIMENTAL IN NATURE AND MAY HAVE HAZARDOUS PROPERTIES. ANY PRODUCT, PROJECT IP, PROJECT RESULTS OR DATA ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES, AND EACH PARTY HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, THAT THE USE OF THE PRODUCT, PROJECT IP, PROJECT RESULTS OR DATA WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER PROPRIETARY RIGHTS OF ANY THIRD PARTY, OR ARISING OUT OF COURSE OF CONDUCT OR TRADE CUSTOM OR USAGE.
11.5 AS FAR AS LEGALLY PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL ANY PARTY BE LIABLE TO ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR EXPECTED SAVINGS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, EXCEPT WITH RESPECT TO INDEMNIFYING PARTY’S INDEMNITY OBLIGATIONS UNDER SECTION 11.1, 11.2, AND 11.3. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY TO ALL CLAIMS AND ACTIONS OF ANY KIND AND ON ANY THEORY OF LIABILITY, AND REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES FURTHER AGREE THAT EACH WARRANTY DISCLAIMER, EXCLUSION OF DAMAGES OR OTHER LIMITATION OF LIABILITY HEREIN IS INTENDED TO BE SEVERABLE AND INDEPENDENT OF THE OTHER PROVISIONS BECAUSE THEY EACH REPRESENT SEPARATE ELEMENTS OF RISK ALLOCATION BETWEEN THE PARTIES.
11.6 THE PARTIES AGREE THAT (a) THE RESEARCH MATERIALS ARE PROVIDED “AS IS”; AND (b) NO PARTY MAKES ANY REPRESENTATIONS OR EXTENDS ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, THAT THE USE OF THE RESEARCH MATERIALS SHALL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER PROPRIETARY RIGHTS, OR ARISING OUT OF COURSE OF CONDUCT OR TRADE CUSTOM OR USAGE.