Master Alliance Provisions Guide (MAPGuide)

CEPI – Dynavax, COVID-19 Material Reservation Agreement

  • Liability | Indemnification & liability

8. Liability and Indemnity

8.1 Liability cap. Unless otherwise agreed by the Parties in writing, a Party’s maximum liability in aggregate to the other Party arising out of this Agreement shall not exceed [***] in respect of breaches other than non-payment of sums owed.

8.2 Exclusions. Neither Party shall be liable to the other Party for any loss of an indirect or consequential nature, nor for any loss of turnover, profits, business or goodwill, whether in contract, warranty, negligence, tort, strict liability or otherwise, arising out of any breach of or failure to perform any of the provisions of this Agreement.

8.3 Exclusions from Liability Cap. Notwithstanding the foregoing, nothing in this Agreement Shall limit the liability of either Party to the other Party in respect of:

(a) personal injury or death arising out of that Party’s negligence or wilful misconduct;
(b) fraud or fraudulent misrepresentation or wilful misconduct; or
(c) any other liability which cannot be limited or excluded as a matter of Applicable Laws; or
(d) any indemnities under Section 8.4.

8.4 Indemnity. Dynavax shall indemnify CEPI against all liabilities, costs, expenses, damages and losses suffered or incurred by CEPI arising out of:

(a) any claim made against CEPI by a third party for actual or alleged infringement of third party’s intellectual property rights arising out of, or in connection with, the manufacture, supply or use of theReserved Material, but specifically excluding any claim made against CEPI for actual or alleged infringement of third party’s intellectual property rights arising out of, or in connection with, the manufacture, use or sale of any CEPI Partner Vaccine or CEPI Partner Product except to the extent the basis for such claim is attributable specifically to the Reserved Material contained in such CEPI Partner Product;
(b) any claim made against CEPI by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in the Reserved Material, solely as delivered by Dynavax to aPermitted Purchaser; and
(c) any claim made against CEPI by a third party arising out of or in connection with the supply of the Reserved Material, as delivered by Dynavax to a Permitted Purchaser;

except, in each case, to the extent that such liabilities, costs, expenses, damages and losses result from the breach by CEPI of any representation, warranty, covenant or agreement made by it under this Agreement or the negligence or wilful misconduct of CEPI

8.5 Mitigating Steps. Each Party shall at all times take all reasonable steps to minimise and mitigate any loss or damage for which the relevant Party is entitled to bring a claim against the other Party pursuant to the indemnities in this Agreement.