Provision Language
Annexure A: License Agreement
3. SUBLICENSE
[…]
3.7 MPP shall ensure that at the same time as any Sublicense is entered into, the relevant Sublicensee shall also execute a Letter of Indemnity and that within five (5) Business Days of the execution of such Sublicense, a fully executed copy of the relevant Sublicense and two originals of the relevant Letter of Indemnity shall be provided to Ferring.
6. INDEMNIFICATION AND LIMITATION OF LIABILITY
6.1 MPP shall be primarily liable for any breach of a Sublicense by any Sublicensee and shall indemnify Ferring and its Affiliates, and each of their respective officers, directors, shareholders, representatives, agents, employees, successors and assigns (collectively, the “Ferring Indemnitees”) in respect of any and all liabilities, costs, damages and expenses (including, but not limited to, legal costs) (“Losses”) incurred by Ferring Indemnitees arising out of, or in connection with (a) any breach by MPP or a Sublicensee of the terms and conditions of this Agreement, (b) any negligence or willful misconduct by or on behalf of MPP or a Sublicensee, (c) any breach of a Sublicense by MPP or a Sublicensee, provided that the indemnification obligation established in this Section shall not apply to the extent such Losses arise out of negligence or wilful misconduct by Ferring, its Affiliates and their respective officers, directors, shareholders, representatives, agents, employees, successors and assigns. Where Ferring exercises its rights under this Section 6.1, Ferring shall: (i) provide MPP with prompt written notice of such claims, (ii) grant MPP the right to control the defence or negotiation of settlement of such claims (except to the extent such claims relate to the validity or enforcement of Licensed Patents or Licensed Know-How) and (iii) reasonably cooperate with MPP in defending any claims.
[…]
6.3 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR OTHERWISE, IN RECOGNITION OF THE HUMANITARIAN NATURE OF THIS AGREEMENT AND THE LACK OF ANY ROYALTY TO FERRING OR OTHER PAYMENTS TO FERRING UNDER THIS AGREEMENT, FERRING WILL NOT HAVE ANY LIABILITY TO MPP OR THE SUBLICENSEES FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES RELATED TO THIS AGREEMENT UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY. IN PARTICULAR, AND WITHOUT LIMITING THE FOREGOING, FERRING WILL HAVE NO LIABILITY IN THE EVENT THE FERRING LICENSED PATENTS OR LICENSED KNOW-HOW ARE INVALID OR UNENFORCEABLE, OR IN THE EVENT THE EXERCISE BY MPP OF ITS RIGHTS UNDER THIS AGREEMENT OR A SUBLICENSEE UNDER THE RELEVANT SUBLICENSE AGREEMENT INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
12. TERM AND TERMINATION
[…]
12.6 The provisions of Sections 12.5(a), 12.5(b) and 12.5(d) are without prejudice to the Licensor’s or Ferring’s rights to claim all damage and loss suffered by the Licensor, Ferring and/or any of their Affiliates arising out of, or in relation to, the event giving rise to termination. In respect of such damage or loss under Sections 12.5(a), 12.5(b) and/or 12.5(d) the Licensee hereby agrees to indemnify the Licensor and Ferring subject to the Licensor and Ferring (each of which shall be entitled to conduct the defense of such claims against them) taking reasonable account of the Licensee’s input in the conduct of the claim to which such loss or damage relates. For the avoidance of doubt, the provisions of Section 27.3 apply to any dispute between the Parties, or between Ferring and the Licensee, in relation to the indemnities given under this Section 12.6.
Annexure A, Schedule 3: Form of Sublicense
14. WARRANTIES AND INDEMNITIES
[…]
14.5 In accordance with and in furtherance of the Letter of Indemnity to be executed by Licensee and Ferring as required under the Head License, the Licensee hereby agrees to indemnify the Licensor, Ferring, their Affiliates and their respective officers, directors, shareholders, representatives, agents, employees, successors and assigns (each an “Indemnified Person”) against any and all suits, claims (whether or not successful, compromised or settled), actions, demands, proceedings, judgements, liabilities, expenses and/or losses, including reasonable legal expense and attorneys’ fees (“Losses”), that arise in connection with (i) the Licensee’s breach of this Agreement; or (ii) the Licensee’s exercise of its rights pursuant to this Agreement (including for the avoidance of doubt any product liability claim relating to the Licensed Product manufactured by or on behalf of Licensee pursuant to this Agreement), provided that the indemnification obligation established in this Section shall not apply to the extent such Losses arise out of negligence or wilful misconduct by Ferring, its Affiliates and their respective officers, directors, shareholders, representatives, agents, employees, successors and assigns. Ferring shall, or shall procure that the Indemnified Person shall, provide Licensee with prompt written notice of such claims. Subject to Sections 8.5 and 12.6, the Indemnified Person and Licensee will agree on the appropriate party to assume control of the defense or negotiation of settlement and will agree to make available all reasonable assistance in defending any claims.
14.6 Section 14.5 may be enforced, by each Indemnified Person against the Licensee.