Master Alliance Provisions Guide (MAPGuide)

Gates Foundation – Arsanis, S. Aureus Antibody Strategic Relationship Letter Agreement

  • Liability | Indemnification & liability

14. Indemnification.

The Company will indemnify, hold harmless, and defend the Foundation and its co-chairs, trustees, directors, officers, employees, agents, and representatives other than Foundation sublicensees (collectively, the “Indemnitees”) 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”) finally awarded to such third party by a court of competent jurisdiction against any of the Indemnitees or agreed to as part of a monetary settlement of the Claim and arising out of or relating to: (a) bodily injury, death or property damage caused by the acts or omissions of the Company, including any development or commercialization or distribution activities carried out by the Company (including any failure to comply with applicable laws, regulations or rules in connection therewith), or by any Product (other than those Claims caused by commercialization or other activities conducted by a Foundation sublicensee) developed, manufactured, tested, sold, licensed, or supplied by or on behalf of the Company or any or its Affiliates, successors or assigns or any of their respective contractors, licensors, or distributors; or (b) any Claim that the Platform Technology, any Funded Development or any Product (other than those Claims caused by commercialization or other activities conducted by a Foundation sublicensee) infringes upon a patent, proprietary, or other intellectual property right of a third party; in each case, except to the extent arising out of or relating to the negligence, fraud or willful misconduct of the Foundation or its sublicensees; any failure by the Foundation or its sublicensees to comply in any material respect with applicable laws, regulations or rules; breach by the Foundation of this Letter Agreement or by any sublicensee under its agreement(s) with the Foundation; or any modification of Product or the formulation or administration thereof where such modification was not approved in writing or made by or on behalf of the Company or any of its Affiliates, successors or assigns. The Foundation will give the Company prompt written notice of any Claim subject to indemnification; provided, that the Foundation’s failure to promptly notify the Company will not affect the Company’s indemnification obligations except to the extent that the Foundation’s delay prejudices the Company’s ability to defend the Claim. The Company will have sole control over the defense and settlement of each and every Claim, with counsel of its own choosing which is reasonably acceptable to the Foundation; provided, that the Company conducts the defense actively and diligently at the sole cost and expense of the Company and provided further that the Company will not enter into any settlement that adversely affects any Indemnitee without the applicable Indemnitee’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. The Foundation will provide the Company, upon request, with reasonable cooperation in connection with the defense and settlement of the Claim. Subject to the Company’s rights above to control the defense and settlement of Claims, the Foundation and any Indemnitee may, at its own expense, employ separate counsel to monitor and participate in the defense of any Claim under this Section 14.

The parties will not be liable to each other, except in connection with any claims of infringement or misappropriation, for any indirect, incidental, consequential, or special damages (including lost revenues, lost savings, or lost profits suffered by such other party) suffered by such other party arising under or in connection with this Letter Agreement, regardless of the form of action, whether in contract or tort, and regardless of whether the party knew of the possibility that such damages could result; provided, that to the extent an Indemnitee is entitled to be indemnified hereunder for Claims of third parties and such third party has been awarded indirect, incidental, consequential, reliance, or special damages (including lost revenues, lost savings, or lost profits), the Company’s indemnification obligations to the Indemnitee will extend to and include such third party’s indirect, incidental, consequential, reliance, or special damages (including lost revenues, lost savings, or lost profits). The parties further agree that under no circumstances will any party be liable to the other party (or to any Indemnitee) more than once for the same losses arising under or in connection with this Letter Agreement.