11. Limitation of Liability; Disclaimer
11.1 Limitation of Liability. CELLSCRIPT, mRNA RIBOTHERAPEUTICS AND PENN WILL NOT BE LIABLE TO COMPANY, ITS AFFILIATES, SUBLICENSEES, SUCCESSORS OR ASSIGNS, OR ANY THIRD PARTY WITH RESPECT TO ANY CLAIM: ARISING FROM COMPANY’S USE OF THE PATENT RIGHTS, EXHIBIT D PATENTS, LICENSED PRODUCTS OR ANY OTHER TECHNOLOGY LICENSED UNDER THIS AGREEMENT; OR ARISING FROM THE COMPANY’S, COMPANY’S AFFILIATES’ OR COMPANY’S SUBLICENSEES’ DEVELOPMENT, TESTING, MANUFACTURE, USE OR SALE OF LICENSED PRODUCTS.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR OTHERWISE, NONE OF CELLSCRIPT, mRNA RIBOTHERAPEUTICS, PENN, OR COMPANY WILL BE LIABLE TO THE OTHER OR ANY THIRD PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY INDIRECT, PUNITIVE,SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED THAT THIS SECTION 11.1 WILL NOT APPLY: (a) TO A PARTY’S INDEMNIFICATION RIGHTS AND OBLIGATIONS UNDER ARTICLE 12 OR ARTICLE 13; (b) IN CIRCUMSTANCES OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY A PARTY OR ITS AFFILIATES; OR (c) WITH RESPECT TO A PARTY’S LIABILITY FOR BREACH OF ARTICLE 5 or 10.
12. Penn Indemnification
12.1 Indemnification. Company will defend, indemnify, and hold harmless each Penn Indemnified Party from and against any and all Penn Liabilities with respect to an Indemnification Event. The term “Penn Indemnified Party” means each of Penn and its trustees, officers, faculty, students, employees, contractors, and agents. For clarity, Cellscript is not a Penn Indemnified Party. The term “Penn Liabilities” means all damages, awards, deficiencies, settlement amounts, defaults, assessments, fines, dues, penalties, costs, fees, liabilities, obligations, taxes, liens, losses, lost profits and expenses (including, but not limited to, court costs, interest and reasonable fees of attorneys, accountants and other experts) that are incurred by a Penn Indemnified Party or awarded or otherwise required to be paid to Third Parties by a Penn Indemnified Party. The term “Indemnification Event” means any Claim against one or more Penn Indemnified Parties arising out of or resulting from: [***]. The term “Claim” in this Article 12 means any charges, complaints, actions, suits, proceedings, hearings, investigations, claims or demands.
12.2 Reimbursement of Costs. Company will pay directly all Penn Liabilities incurred for defense or negotiation of any Claim or will reimburse Penn for all documented Penn Liabilities incident to the defense or negotiation of any Claim within [***] days after Company’s receipt of invoices for such fees, expenses and charges.
12.3 Control of Litigation. Company controls any litigation or potential litigation involving the defense of any Claim, including the selection of counsel, with input from Penn. Penn reserves the right to protect its interest in defending against any Claim by selecting its own counsel, with any attorneys’ fees and litigation expenses paid for by Company, pursuant to Sections 12.1 and 12.2.
12.4 Other Provisions. Company will not settle or compromise any Claim giving rise to Penn Liabilities in any manner that imposes any restrictions or obligations on Penn or grants any rights to the Patent Rights, Exhibit D Patents or the Licensed Products without Penn’s prior written consent. If Company fails or declines to assume the defense of any Claim within [***] days after notice of the Claim, or fails to reimburse a Penn Indemnified Party for any Penn Liabilities pursuant to Sections 12.1 and 12.2 within the [***] day time period set forth in Section 12.2, then Penn may assume the defense of such Claim for the account and at the risk of Company, and any Penn Liabilities related to such Claim will be conclusively deemed a liability of Company. The indemnification rights of the Penn Indemnified Parties under this Article 12 are in addition to all other rights that a Penn Indemnified Party may have at law, in equity or otherwise.
13. Other Indemnification
13.1 Indemnification by Company. Company will indemnify, defend and hold harmless Cellscript and its affiliates, and its or their respective directors, officers, employees and agents (“Cellscript Indemnified Parties”), from and against any and all liabilities, damages, losses, costs and expenses including the reasonable fees of attorneys (collectively “Losses”) arising out of or resulting from any and all Third Party suits, claims, actions, proceedings, payment obligations or demands (“Claims” in this Article 13) to the extent based upon:
13.1.1 the gross negligence or willful misconduct of Company, its Affiliates or Third Party sublicensees and its or their respective directors, officers, employees and agents, in connection with Company’s performance of its obligations or exercise of its rights under this Agreement;
13.1.2 any breach of any representation or warranty or express covenant made by Company under this Agreement; or
13.1.3 the development, testing, use, manufacture, commercialization, sale or other disposition of Licensed Products by or on behalf of Company or its Affiliates or Third Party sublicensees, assignees or vendors or Third Parties, including, but not limited to, for (x) any product liability or other Claim of any kind related to use by a Third Party of a Licensed Product, (y) any Claim by a Third Party that Company’s practice of any of the Patent Rights or Exhibit D Patents or the design, composition, manufacture, use, sale or other disposition of any Licensed Product infringes or violates any patent, copyright, trade secret, trademark or other intellectual property right of such Third Party, and (z) any Claim by a Third Party relating to clinical trials or studies for Licensed Products;
except, in each case above, to the extent such Claim arose out of or resulted from or is attributable to any acts or omissions of Cellscript or its directors, officers, employees and agents, or other circumstances for which Cellscript has an indemnity obligation pursuant to Section 13.2 below.
13.2 Indemnification by Cellscript. Cellscript will indemnify, defend and hold harmless Company and its Affiliates, and its or their respective directors, officers, employees and agents (“Company Indemnified Parties”), from and against any and all Losses arising out of or resulting from any and all Claims to the extent based upon:
13.2.1 the gross negligence or willful misconduct of Cellscript or its directors, officers, employees and agents, in connection with Cellscript’s performance of its obligations or exercise of its rights under this Agreement; or
13.2.2 any breach of any representation or warranty or express covenant made by Cellscript under this Agreement; or its Affiliates or Third Party sublicensees or contractors and its or their respective directors, officers, employees and agents or other circumstances for which Company has an indemnity obligation pursuant to Section 13.1 above.
13.3 Procedure. If an Indemnified Party entitled to indemnification under Sections 13.1 or13.2 seeks such indemnification (wherein “Indemnified Party” in this Article 13 means a “Company Indemnified Party” and/or an “Cellscript Indemnified Party”), such Indemnified Party will:
(i) inform the indemnifying Party in writing of a Claim as soon as reasonably practicable after such Indemnified Party receives notice of such Claim;
(ii) permit the indemnifying Party to assume direction and control of the defense of the Claim (including the sole right to settle such Claim at the sole discretion of the indemnifying Party, provided that (a) such settlement or compromise does not admit any fault or negligence on the part of the Indemnified Party, or impose any obligation on, or otherwise materially adversely affect, the Indemnified Party or other Party and (b) the indemnifying Party first obtains the written consent of the Indemnified Party with respect to such settlement, which consent will not be unreasonably withheld);
(iii) cooperate as reasonably requested (at the expense of the indemnifying Party) in the defense of the Claim; and
(iv) undertake reasonable steps to mitigate any Losses with respect to the Claim.
Notwithstanding anything in this Agreement to the contrary, the indemnifying Party will have no liability under Sections 13.1 or 13.2, as the case may be, for Claims settled or compromised by the Indemnified Party without the indemnifying Party’s prior written consent.