7. REPRESENTATIONS AND WARRANTIES
7.3 “AS IS” license
(b) The Sublicensee acknowledges and agrees that neither Shionogi nor any of its Affiliates nor GARDP will have any liability whatsoever in relation to any infringement of the intellectual property rights of any Third Party arising out of the Development, Manufacture and Commercialization of the Licensed Compound and/or Licensed Product by the Sublicensee.
7.6 Limitation of liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES ARISING FROM OR RELATING TO ANY BREACH OF THE LICENSE AGREEMENT OR THE ACTIVITIES CONDUCTED BY SUCH PARTY PURSUANT TO THE LICENSE AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING OUT OF ANY BREACH OF THE LICENSE AGREEMENT OR THE ACTIVITIES CONDUCTED BY SUCH PARTY PURSUANT TO THE LICENSE AGREEMENT. THE FOREGOING LIMITATIONS DO NOT APPLY TO CLAIMS BASED ON: (1) THE BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (2) A PARTY’S GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT, OR (3) A PARTY’S INDEMNIFICATION OBLIGATION UNDER SECTION 11.
NOTWITHSTANDING THE FOREGOING, ANY AMOUNTS DUE TO THE SUBLICENSEE BY GARDP WITH RESPECT TO THE ACTIVITIES CONTEMPLATED BY THIS SUBLICENSE AGREEMENT, WHETHER BY MEANS OF INDEMNIFICATION OR OTHERWISE, SHALL BE LIMITED TO THE INSURANCE PROCEEDS ACTUALLY RECOVERED BY GARDP FROM ITS INSURERS FOR THE CORRESPONDING CLAIM(S). For the avoidance of doubt, the fact that no amount will be due to the Sublicensee unless insurance proceeds are received by GARDP may not be used as a justification not to pay the corresponding insurance proceeds to GARDP that would otherwise be due by the insurer.
11.1 Indemnification by Sublicensee of GARDP and Shionogi. The Sublicensee hereby agrees to defend, hold harmless and indemnify GARDP and Shionogi and their respective Affiliates, and their respective officers, directors, employees, agents, licensors, and their respective successors, heirs and assigns, and representatives, from and against any and all claims, threatened claims, damages, losses, suits, proceedings, liabilities, costs (including reasonable legal expenses, costs of litigation and reasonable attorney’s fees) or judgments, whether for money or equitable relief, of any kind from a Third Party (Losses and Claims) arising out of or in connection with:
(a) any activities conducted by the Sublicensee or its Affiliates pursuant to this Sublicense Agreement;
(b) any material breach by the Sublicensee of any of the provisions of this Sublicense Agreement;
(c) any negligence or willful misconduct by or on behalf of Sublicensee;
(d) the Sublicensee’s use and practice of the Sublicensed Rights and Sublicensed Manufacturing Know-How, including claims and threatened claims based on:
(i) any product liability, bodily injury, risk of bodily injury, death, or property damage;
(ii) infringement or misappropriation of Third-Party patents, copyrights, trademarks, or other intellectual property rights; or
(iii) the failure to comply with applicable laws related to the matters referred to in the foregoing with respect to the Licensed Compound and/or any Licensed Product.
11.2 Indemnification Procedures. Each Party will promptly notify the other Party when it becomes aware of a Third Party claim for which indemnification may be sought hereunder (a Claim). To be eligible to be indemnified for a Claim, a Person seeking indemnification (the “Indemnified Party”) shall (i) provide the Party required to indemnify such Person (the “Indemnifying Party”) with prompt written notice of the Claim giving rise to the indemnification obligation under this Section 11.2, provided that, the failure to provide such prompt notice shall not relieve the Indemnifying Party of any of its obligations under this Section 11.2 except to the extent the Indemnifying Party is actually prejudiced thereby; (ii) provide the Indemnifying Party with the exclusive ability to defend (with the reasonable cooperation of the Indemnified Party) against the Claim; and (iii) not settle, admit or materially prejudice the Claim, without the Indemnifying Party’s prior written consent. The Indemnified Party shall reasonably cooperate with the Indemnifying Party, at the Indemnifying Party’s expense, in the defense of any Claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to participate in and have its own counsel participate in any action or proceeding for which the Indemnified Party seeks to be indemnified by the Indemnifying Party. Such participation shall be at the Indemnified Party’s expense, unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party’s obligations under Section 11, as the case may be, shall not apply to the extent of the Indemnified Party’s failure to take reasonable action to mitigate any Losses. The Indemnifying Party shall not settle or compromise, or consent to the entry of any judgment with respect to, any Claim, without the prior written consent of the Indemnified Party, which will not be unreasonably withheld or delayed.