Each Beneficiary (“Indemnitor”) shall indemnify each other Beneficiary and their employees, Affiliated Entities, Sub-Contractors, Linked Third Parties, and agents (“Indemnitee”) and defend and hold each of them harmless, from and against loss, damage, liability, cost, expense, or injury (including reasonable attorneys’ fees and expenses) (individually a “Loss” and collectively, “Losses”) incurred by such Indemnitee resulting from any claim, complaint, proceeding or cause of action brought by a Third Party, including IMI2 JU (“Third Party Claims”) alleging or arising from (i) the material breach of any representation, warranty or covenant made by the Indemnitor hereunder, (ii) gross negligence or willful misconduct on the part of the Indemnitor in performing its obligations under this Consortium Agreement, or, subject to Clause 12.1, (iii) infringement of Third Party intellectual property rights by such Indemnitor, its employees, Sub-Contractors, Linked Third Parties, Affiliated Entities or its agents; provided in each case that (a) the foregoing obligation to indemnify shall not extend to claims for indirect or consequential loss or damage, including but not limited to loss of profit, revenue or contracts; and (b) the total limit of liability of any Indemnitor to the Indemnitee collectively in respect of any one claim or series of connected claims, shall not exceed the financial value (of the Grant or of the in-kind contribution, as the case may be, corresponding to that Indemnitor’s Action Share; and (c) an Indemnitor shall not be obligated to indemnify an Indemnitee for any Losses to the extent such Losses arise as a result of (i) the material breach of any representation, warranty or covenant made by the Indemnitee under this Consortium Agreement or (ii) any gross negligence or willful misconduct on the part of any Indemnitee.
Nothing in this Consortium Agreement may be construed to limit (i) the right of any party to bring an action for damages against any Third Party, including claims for indirect, special or consequential damages, based on any acts or omissions of such Third Party or (ii) the liability of a party for personal injury or death resulting from the negligence of such party or its employees, officers, directors, agents, or representatives (as applicable).
The Indemnitee shall immediately advise the Indemnitor of any such Loss or Third Party Claim in writing. The Indemnitor shall have the right to select defense counsel and to direct the defense or settlement of any claim which is the subject of this indemnity. The Indemnitee shall reasonably co-operate with the Indemnitor and its legal representatives in the investigation and defence of any such claim. The Indemnitee may obtain representation by separate legal counsel, at its own expense. The Indemnitee shall refrain from making any admission of liability or any attempt to settle the claim without the Indemnitor’s prior written consent.
§12.3: Freedom to Operate
Without prejudice to any of the foregoing provisions of this Clause 12, each Beneficiary acknowledges that it shall be solely responsible for ensuring that, to the best of its knowledge, its activities under the Consortium Agreement, in particular implementing the Action and making any Research Use of Results or undertaking the Direct Exploitation of Results whether such Results are owned by it or to which it has been granted Access Rights do not infringe or misappropriate Third Party Intellectual Property.