Provision Language
5. Indemnity and Insurance
5.1. Indemnification by Licensee. Licensee agrees to indemnify, hold harmless and defend MPP, Pfizer and their Affiliates, and their respective officers, directors, employees, contractors, agents and assigns (collectively, “Indemnitees”), from and against any Claims arising or resulting from:
(a) the development of a Product by Licensee, its Affiliates or subcontractors,
(b) the commercialization of a Product by Licensee, its Affiliates or subcontractors,
(c) the negligence, recklessness or wrongful intentional acts or omissions of Licensee, its Affiliates or subcontractors
(d) breach by Licensee of any representation, warranty or covenant as set forth in this Agreement (excluding breach of Section 3.1) or
(e) breach by Licensee of the scope of the license set forth in Section 2. As used herein, “Claims” means collectively, any and all demands, claims, actions and proceedings (whether criminal or civil, in contract, tort or otherwise) for losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees).
5.2. Exclusions of Indemnification by Licensee.
(a) Licensee will not indemnify Indemnitees for claims arising from the practice or exercise of any Licensed IP by the Indemnitees, or any other Sublicensee of those organizations.
(b) Licensee will not indemnify Indemnitees for a claim against the Indemnitees for injuries allegedly caused by the negligence, intentional misconduct or use or administration of a Licensed Product by any Indemnitee or another Sublicensee of MPP.
(c) Licensee will not indemnify Indemnitees for actions, claims, lawsuits or demands that allege that Licensee’s use of the Licensed IP infringes or misappropriates third party intellectual property rights.
5.3. Rights and obligations of MPP and Pfizer. MPP and Pfizer shall provide Licensee with prompt notice of any claims covered by Licensee’s obligation to indemnify and will provide reasonable cooperation to Licensee in Licensee’s investigation and defense of such claims, at Licensee’s expense; provided, however, that failure to provide such notice shall not relieve Licensee from its liability or obligation hereunder, except to the extent of any material prejudice as a direct result of such failure. Licensee shall have sole control of the defense but Indemnitees shall have the right to participate in such defense with counsel of their choice and at their own expense. Indemnitees shall have the right to approve the settlement of any claim hereunder that imposes any liability or obligation on Indemnitees, or materially adversely impacts Indemnitees’ rights or obligations.
5.5. Indemnification by MPP. MPP agrees that it shall be responsible for injuries or losses to third parties arising from or related to its own acts or omissions, or caused by or arising from Licensed Products of MPP or another MPP Sublicensee, or allegedly arising as a consequence of the exercise by MPP of any rights granted in this Agreement. To that end, MPP shall protect, indemnify, and hold harmless Licensee from any claims arising therefrom, including defending any action brought against Licensee with counsel reasonably acceptable to Licensee, and indemnifying Licensee, as against any judgments, fees, expenses, or other costs arising from or incidental to any product liability or other lawsuit, claim, demand or other action, whether or not Licensee is named as a party defendant in any such lawsuit and whether or not Licensee is alleged to be negligent or otherwise responsible for any injuries to persons or property. Exercise of the rights granted in this Agreement by an Affiliate of MPP or another Sublicensee of MPP or by a third party on behalf of or for the account of MPP, shall be considered MPP’s exercise of the rights granted in this Agreement for purposes of this Section.
5.6. Exclusions of Indemnification by MPP.
(a) MPP will not indemnify Licensee for claims arising from the practice by Licensee of the Patent Rights or exercise of rights retained by Licensee under this Agreement.
(b) MPP will not indemnify Licensee for a claim against Licensee for injuries allegedly caused solely and directly by negligent use or administration by Licensee of a Licensed Product of Licensee, but any products liability or similar claim based upon a Licensed Product made by or provided by MPP or another Sublicensee of MPP will be covered by this indemnification requirement.
5.7. Rights and obligations of Licensee. Licensee shall provide MPP with prompt notice of any claims covered by MPP’s obligation to indemnify, and will provide reasonable cooperation to MPP in MPP’s investigation and defense of such claims. Licensee shall have the right to participate in such defense with counsel of its choice and at Licensee’s own expense. Licensee shall have the right to approve the settlement of any claim hereunder that imposes any liability or obligation on Licensee, or affects the Patents, other than the payment of money damages paid by MPP or another Sublicensee of MPP.