3. Contributions and Work Phases
3.1. FUNDER Obligations. FUNDER shall: […]
3.1.2. Use Reasonable Efforts to do the following:
i. work with WHO and other stakeholders to address the issues of product liability for unlicensed products used in an Outbreak in the Field […]
14. Warranties and Liability
14.3 Liability. The Funder Group’s maximum liability in aggregate to the Partner arising out of this Agreement shall not exceed the aggregate of the Total Work Phase Budget.
14.4 Except as provided by Clause 14.5, neither Party shall be liable to the other Party for indirect loss of profits, incidental or consequential damages, 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.
14.5. Notwithstanding the foregoing, nothing in this Agreement shall limit the liability of either Party in respect of:
14.5.1. personal injury or death arising out of that Party’s negligence or wilful misconduct; or
14.5.2. fraud or fraudulent misrepresentation or wilful misconduct.
14.6. Third Party Claims. The Partner agrees to indemnify FUNDER and hold FUNDER harmless from and against any and all claims, damages, and liabilities asserted by third parties (including claims for negligence) (“Third Party Claims”) which arise directly or indirectly from the use of the Background Intellectual Property, the Foreground Intellectual Property, the
Existing Data, the Data or the Material or the Development or Marketing of the Product.
14.7. Conduct of Third Party Claims. Each of the Parties shall use reasonable endeavours to avoid, dispute, resist, appeal, compromise or defend any Third Party Claim brought against it and to minimise its losses, claims, liabilities, costs, charges and expenses and:
14.7.1. The indemnified party shall give the indemnifying Party prompt written notice of any Third Party Claim for which it requires indemnification under this Clause 14.7 together with copies of all relevant papers and official documents;
14.7.2. The Parties shall Confer with the indemnifying Party on how to respond to and handle the Third Party Claim in an efficient manner; and
14.7.3. The indemnified Party shall not take any material action in respect of any Third Party Claim without the consent of the indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed).
14.8 Insurance. The Partner will obtain and continuously maintain the following insurance on a claims arising basis with an insurance company of a credit rating of A or better:
14.8.1. During the period covered by the Development Plan, Clinical Trials Insurance as follows:
i. if the Clinical Trial is part of a biomedical countermeasure as defined by GHSI (in accordance with the recommendation from the GHSI dated [insert date]), (i) the recipient countries of the Product will be liable for any and all personal injury claims arising from the dosing of human subjects with the Product in the Clinical Trial and will provide compensation mechanisms to those of their citizens and residents receiving the Product as part of the Clinical Trial and (ii) the Partner will obtain and maintain Clinical Trial Cover on a claims arising basis of at least [x million GBP] per claim including non-negligence cover in accordance with the conditions of the Associated British Pharmaceutical Industry agreed wording for any other recipient of the Product as part of the Clinical Trial; and
14.8.2. From the date of the first Marketing Approval or if earlier, first sale to a Public Sector Agency, product liability insurance of at least [GBP y] per occurrence other than in Low Income Countries or Middle Income Countries covered by the WHO product liability insurance.