Provision Language
11. Representations and Warranties
11.2 Disclaimer of Representations and Warranties by UBC and AlCana. Alnylam acknowledges that: […]
(b) UBC and AlCana are not liable for any loss, whether direct, consequential, incidental or special, which Alnylam, its Related Parties, or any other Third Parties might suffer arising from any defect, error or fault of the UBC Controlled IP, the Research Program or any Licensed Products, even if UBC or AlCana is aware of the possibility of the defect, error, fault or failure. Alnylam acknowledges that it has been advised by UBC and AlCana to undertake Alnylam’s own due diligence regarding the UBC Controlled IP, the Research Program and any Licensed Products
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11.5 Payor Offset Right; Limitation of UBC Liability
(a) Each Payor and its Affiliates shall have the right to offset up to fifty percent (50%) of any amounts due to UBC or AlCana, as the case may be, under this Agreement and/or the Supplemental Agreement, by the amount of any and all damages or losses (including without limitation reasonable attorneys’ fees) incurred by an Alnylam Indemnitee (where such Payor is Alnylam) or by a Tekmira Indemnitee (as defined in the Supplemental Agreement, and where such payor is either Tekmira or Protiva) and arising out of the negligence, willful misconduct or material breach of this Agreement or the Supplemental Agreement by UBC or AlCana, as the case may be. Furthermore, Alnylam shall have the right to offset up to fifty percent (50%) of any amounts due to UBC (but not AlCana) under this Agreement and/or the Supplemental Agreement, by any and all amounts Alnylam is entitled to recover from UBC under Section 12.1(a), and Tekmira and Protiva shall have the right to offset up to fifty percent (50%) of any amounts due to UBC (but not AlCana) under this Agreement and/or the Supplemental Agreement, by any and all amounts Tekmira or Protiva is entitled to recover from UBC under Section 10(a) of the Supplemental Agreement.
(b) UBC’s total liability to AlCana, whether under the express or implied terms of this Agreement or the Supplemental Agreement, in tort(including negligence) or at common law, for any loss or damage suffered by any AlCana, whether direct, indirect or special, or any other similar damage that may arise or does arise from any gross negligence, willful misconduct or breaches of this Agreement or the Supplemental Agreement by a UBC Indemnitee, is limited to the amount of $10,000; provided, however, that such limit shall not be applied to the cost of any specific performance of a UBC Indemnitee which may be required by a court of competent jurisdiction in connection herewith, and provided, further, that, given the modest amount of monetary damages for which UBC may be liable to AlCana hereunder, it is the expectation of AlCana and UBC that any remedy hereunder with respect to UBC may be in the form of specific performance if such specific performance is reasonably feasible employing such resources and efforts as would normally be exerted or employed by a similarly situated not–for–profit educational institution under the terms of a similar sponsored research and technology license agreement.
(c) UBC’s total liability to a Payor and its Related Parties, whether under the express or implied terms of this Agreement or the Supplemental Agreement, in tort (including negligence) or at common law, for any loss or damage suffered by any Payor or its Related Parties, whether direct, indirect or special, or any other similar damage that may arise or does arise from any negligence, willful misconduct or breaches of this Agreement or the Supplemental Agreement by a UBC Indemnitee is limited to the amount that such Payor and its Related Parties may offset pursuant to Section 11.5(a) or Section 4(d) of Schedule 2 to the Supplemental Agreement; provided, however, that such limit shall not be applied to the cost of any specific performance of a UBC Indemnitee which may be required by a court of competent jurisdiction in connection herewith, and provided, further, that, given the limited amount of monetary damages for which UBC may be liable to a Payor and its Related Parties hereunder, it is the expectation of such Payor and its Related Parties and UBC that any remedy hereunder with respect to UBC may be in the form of specific performance if such specific performance is reasonably feasible employing such resources and efforts as would normally be exerted or employed by a similarly situated not–for–profit educational institution under the terms of a similar sponsored research and technology license agreement.
12. Indemnification
12.1 Indemnification by Alnylam
(a) Alnylam will indemnify UBC, its Board of Governors, officers, employees, faculty, students and agents (“UBC Indemnitees”) for any claims, including reasonable attorneys’ fees for defending those claims (“Claims”), based on or arising out of (i) the exercise by the Alnylam Indemnitees or any Alnylam Sublicensee of their rights under this Agreement or the Supplemental Agreement, including without limitation against any damages or losses (including consequential and other similar damages), arising in any manner at all from or out of an Alnylam Indemnitee’s activities under the Research Program, or (ii) the use of the Program Developments or any Licensed Products by the Alnylam Indemnitees, the Alnylam Program Participants or any Alnylam Sublicensees, or their respective distributors, customers or end–users; provided, however, that Alnylam shall not be required to indemnify the UBC Indemnitees for any Claim (x) that arises solely due to the gross negligence or willful misconduct of, or the material breach of this Agreement or the Supplemental Agreement by, a UBC Indemnitee or (y) described under clause (i) above unless such Claim alleges the negligence or willful misconduct of, or the material breach of this Agreement or the Supplemental Agreement by, an Alnylam Indemnitee, it being understood and agreed that such indemnification obligation shall not apply if such allegations are later determined by a court or jury of competent jurisdiction in an un–reversed, un–appealable or un–appealed decision, to be untrue or unproven, with the result that such allegations are dismissed or withdrawn (other than by agreement between the indemnifying party and the plaintiff making such allegations). UBC will promptly notify Alnylam of a Claim and will reasonably cooperate with the defense thereof. Alnylam shall be entitled to exercise its right of offset described under Section 11.5 to recover any amounts paid to UBC pursuant to this Section 12.1(a) which UBC was not entitled to receive.
(b) Alnylam will indemnify AlCana and its directors, employees and agents (“AlCana Indemnitees”) for any Claims based on or arising out of (i) an Alnylam Indemnitee’s activities under the Research Program, (ii) an Alnylam Indemnitee’s negligence or willful misconduct, or (iii) an Alnylam Indemnitee’s breach of this Agreement or the Supplemental Agreement, or (iv) the use by an Alnylam Indemnitee of the AlCana Collaboration IP licensed to Alnylam under the Alnylam Sublicense (in the case of (i) and (iv) only, except to the extent that any such Claims are attributable to the negligence, willful misconduct or material breach of this Agreement by an AlCana Indemnitee or a UBC Indemnitee). AlCana will promptly notify Alnylam of a Claim and will reasonably cooperate with the defense thereof.
12.2 Indemnification by AlCana.
(a) AlCana will indemnify Alnylam, its Related Parties and its and their directors, employees and agents (“Alnylam Indemnitees”) for any Claims based on or arising out of (i) an AlCana Indemnitee’s activities under the Research Program, (ii) an AlCana Indemnitee’s negligence or willful misconduct, (iii) an AlCana Indemnitee’s breach of this Agreement or the Supplemental Agreement, or (iv) the use by an AlCana Indemnitee (or an AlCana sublicensee or Affiliate) of the AlCana Collaboration IP retained by or licensed to AlCana or the use of the Consultant IP or any Licensed Product (as defined herein and in Schedule 2 to the Supplemental Agreement) by an AlCana Indemnitee (or an AlCana sublicensee or Affiliate) (in the case of (i) and (iv) only, except to the extent that any such Claims are attributable to the negligence, willful misconduct or material breach of this Agreement by an Alnylam Indemnitee or a UBC Indemnitee). Alnylam will promptly notify AlCana of a Claim and will reasonably cooperate with the defense thereof.
(b) AlCana will indemnify the UBC Indemnitees for any Claims based on or arising out of (i) the exercise by the AlCana Indemnitees (or an AlCana sublicensee or Affiliate) of their rights under this Agreement or the Supplemental Agreement, including without limitation against any damages or losses (including consequential and other similar damages) arising in any manner at all from or out of an AlCana Indemnitee’s activities under the Research Program, or (ii) the use of the UBC Controlled IP or any Licensed Products by AlCana, its sublicensees or Affiliates, or the AlCana Program Participants; provided, however, that AlCana shall not be required to indemnify the UBC Indemnitees for any Claim (x) that arises solely due to the gross negligence or willful misconduct of, or the material breach of this Agreement or the Supplemental Agreement by, a UBC Indemnitee or (y) described under clause (i) above unless such Claim alleges the negligence or willful misconduct of, or the material breach of this Agreement or the Supplemental Agreement by, an AlCana Indemnitee or Affiliate, it being understood and agreed that such indemnification obligation shall not apply if such allegations are later determined by a court or jury of competent jurisdiction in an un–reversed, un–appealable or un–appealed decision, to be untrue or unproven, with the result that such allegations are dismissed or withdrawn (other than by agreement between the indemnifying party and the plaintiff making such allegations). UBC will promptly notify AlCana of a Claim and will reasonably cooperate with the defense thereof.
12.3 Procedure. To be eligible to be indemnified hereunder, the indemnified Party shall provide the indemnifying Party with prompt notice of the Claim giving rise to the indemnification obligation pursuant to this Article 12 and the exclusive ability to defend (with the reasonable cooperation of the indemnified Party) or settle any such Claim; provided, however, that the indemnifying Party shall not enter into any settlement for damages other than monetary damages without the indemnified Party’s written consent, such consent not to be unreasonably withheld. The indemnified Party shall have the right to participate, at its own expense and with counsel of its choice, in the defense of any claim or suit that has been assumed by the indemnifying Party. If the Parties cannot agree as to the application of Sections 12.1 or 12.2 to any particular Claim, the Parties may conduct separate defenses of such Claim. Each Party reserves the right to claim indemnity from the other in accordance with Sections 12.1 or 12.2 above upon resolution of the underlying claim, notwithstanding the provisions of this Section 12.3 requiring the indemnified Party to tender to the indemnifying Party the exclusive ability to defend such claim or suit.
12.4 Limitation of Liability. NO PARTY WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY WHETHER TORT (INCLUDING NEGLIGENCE), CONTRACT (INCLUDING FUNDAMENTAL BREACH) OR OTHERWISE FOR INDIRECT, SPECIAL, INCIDENTAL,CONSEQUENTIAL, AGGRAVATED, EXEMPLARY, PUNITIVE DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TOTHIS AGREEMENT OR THE EXERCISE OF ITS RIGHTS HEREUNDER, ARISING FROM OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF SUCH DAMAGES, EXCEPT AS A RESULT OF A MATERIAL BREACH OF THE CONFIDENTIALITY AND NON–USE OBLIGATIONS IN ARTICLE 9. NOTHING IN THIS SECTION 12.4 IS INTENDED TO LIMIT OR RESTRICT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF ANY PARTY.