Provision Language
8. Indemnity
8.1 Atreca’s Right to Indemnification. Subject to Section 8.3, the Gates MRI will (a) defend each of Atreca, its Affiliates, successors and assigns and their respective directors, officers, employees, and agents from and against any third party claim, action, suit, or proceeding (“Claim“) based on: (i) the Development, Manufacture, or Commercialization of Licensed Products by the Gates MRI or its Affiliates, agents, subcontractors, or sublicensees; (ii) the negligence or intentional misconduct of the Gates MRI or any of its agents or employees, or Affiliates, subcontractors or sublicensees, or (iii) any material breach by the Gates MRI or its Affiliates, agents, subcontractors or sublicensees of any term (including any material inaccuracy or other breach of any representation or warranty made by the Gates MRI) of this Agreement, except in each case ((i) through (iii)), to the extent that Atreca is obligated to indemnify the Gates MRI against such Claim pursuant to Section 8.2, and (b) pay any damages, costs, and expenses finally awarded against Atreca as a result of, and attributable to, such Claim.
8.2 The Gates MRI’s Right to Indemnification. Subject to Section 8.3, Atreca will (a) defend each of the Gates MRI, its Affiliates, successors and assigns and their respective directors, trustees, officers, employees, and agents from and against any Claim based on: (i) the Development, Manufacture, or Commercialization of Licensed Products by Atreca or its Affiliates, agents, subcontractors, licensees or Atreca Sublicensees; (ii) the negligence or intentional misconduct of Atreca or any of its agents or employees or Affiliates, subcontractors, licensees or Atreca Sublicensees, or (iii) any material breach by Atreca or its Affiliates, agents, subcontractors, licensees or Atreca Sublicensees of any term (including any material inaccuracy or other breach of any representation or warranty made by Atreca) of this Agreement, except in each case ((i) through (iii)), to the extent that the Gates MRI is obligated to indemnify Atreca against such Claim pursuant to Section 8.1, and (b) pay any damages, costs, and expenses finally awarded against the Gates MRI as a result of, and attributable to, such Claim.
8.3 Process for Indemnification. For purposes of Sections 8.1 and 8.2, the Party seeking indemnification will give prompt written notice to the indemnifying Party of any Claims that may give rise to any claim for which indemnification may be required under this Section 8, provided, however, that failure to give such notice will not relieve the indemnifying Party of its obligation to provide indemnification hereunder except if and to the extent that such failure materially and adversely affects the ability of the indemnifying Party to defend against or mitigate the applicable Claim. The indemnifying Party will be entitled to assume control of the defense of any such Claim at its own cost and expense, provided, however, that the other Party will have the right to be represented by its own counsel at its own cost in such matters. Neither the indemnifying Party nor the indemnified Party will settle or dispose of any Claim in any manner that would adversely affect the rights or interests of the other Party (including the obligation to indemnify hereunder) without the prior written consent of the other Party, which will not be unreasonably withheld or delayed. Each Party will cooperate with the other Party and its counsel in the course of the defense of any such Claim, such cooperation to include using reasonable efforts to provide or make available documents, information and witnesses.
11. Limitation of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 8 OR LIABILITY ARISING FROM BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES OF ANY KIND, OR ANY LOST PROFITS OR LOSS OF BUSINESS, ARISING IN ANY WAY OUT OF THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY.