Provision Language
17. INSURANCE, LIABILITY AND INDEMNIFICATION
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17.2 Indemnification for Third Party Claims.
17.2.1 Each Partner shall indemnify CEPI and its Affiliates and its and their respective officers, directors, employees and third party consultants, auditors and Assessors engaged by CEPI for the purposes of this Agreement (the “CEPI Indemnitees”), from and against any and all claims, damages, and liabilities asserted against such persons by third parties (including claims for negligence) to the extent resulting from (i) such Partner’s, or its Affiliate’s or Subawardee’s activities under this Agreement, (ii) the research, development, manufacture, supply, commercialisation, disposal or use by or on behalf of such Partner, its third party licensees, Subawardees and its Affiliates, including all customers and end users thereof, of the Project Vaccine, Project Intellectual Property or any Project Results; or (iii) any claim that the use of such Partner’s Intellectual Property in relation to the Project Vaccine infringes the intellectual property rights of any third party, except to the extent such claim, damage or liability is caused by breach of any term or condition of this Agreement by, or the negligence or intentional misconduct of, any CEPI Indemnitees.
17.2.2 In the event that the Public Health License becomes exercisable and CEPI exercises such rights, CEPI shall grant an indemnity to the Partner(s) in respect of which the Public Health Licence has been granted on the same terms as the indemnity set out in this Clause 17.2, which shall apply to CEPI mutatis mutandis.
17.2.3 Conduct of Responses to Third Party Claims. The indemnified party shall use all reasonable endeavours to inform the indemnifying Party promptly of any circumstances that are likely to give rise to a third party claim which may be covered by Clause 17.2.1 together with copies of all relevant documents, correspondence and records. The indemnified party shall not take any material action in respect of any third party claim which is covered by Clause 17.2.1 without the consent of the indemnifying party, including any settlement of any such third party claim, provided such consent is not unreasonably conditioned, withheld or delayed. The indemnifying party shall have the right to assume control of defence of the claim and shall keep the indemnified party reasonably informed of the progress of all relevant third party claims which are covered by Clause 17.2.1 and shall consult with the indemnified party on the nature of any defence to be advanced in advance. The indemnified party may have its counsel participate in (but not control) the defence of a claim, at the indemnified party’s own expense.
17.2.4 Exclusions. No Party shall be liable to any other Party for any loss of profits, loss of opportunity, loss of contract or bargain (in each case, whether direct or indirect damages); or indirect, incidental, consequential, special, punitive or exemplary losses or damages, whether in contract, warranty, negligence, tort, strict liability, indemnity, contribution or otherwise, arising out of or in connection with this Agreement.
17.3 Liability Cap. Subject to Clause 17.4, CEPI’s maximum liability in aggregate arising out of, or in connection with, this Agreement shall not exceed [***]. Notwithstanding the foregoing, if CEPI has exercised the Public Health License, or if CEPI is in breach of the confidentiality obligations in Clause 18, CEPI’s maximum liability in aggregate to Partner shall not exceed [***]. Subject to Clause 17.4, the maximum liability of each Partner to any other Party in aggregate arising out of, or in connection with, this Agreement shall not exceed [***]
17.4 Exclusions from Liability Cap. Notwithstanding the foregoing, nothing in this Agreement shall limit the liability of any Party in respect of: (i) personal injury or death arising out of that Party’s negligence or intentional misconduct; (ii) fraud or fraudulent misrepresentation or intentional misconduct, (iii) any Party’s obligations under Clause 17.2 or, (iv) any Party’s obligation to make payments to any other Party, subject to any applicable rights to withhold, condition, delay or otherwise not pay as permitted under this Agreement.