Master Alliance Provisions Guide (MAPGuide)

MSD – MPP, Molnupiravir License Agreement

  • Liability | Indemnification

MSD-MPP Agreement

5. Representations, Warranties and Covenants

5.5 Indemnity. Each Party (the “Indemnifying Party“) shall indemnify, hold harmless and defend the other Party, and its affiliates, licensors, directors, officers, employees and agents (collectively, the “Indemnified Party“), from and against any and all losses, damages, expenses, cost of defense (including, without limitation, attorneys’ fees, witness fees, damages, judgments, fines, and amounts paid in settlement), and any amounts an Indemnified Party becomes legally obligated to pay because of any claim against it: (a) arising out of any breach by the Indemnifying Party of the terms and conditions of this Agreement, or (b) for any negligence or willful misconduct by or on behalf of the Indemnifying Party. These indemnification obligations shall apply only in the event that the Indemnified Party provides the Indemnifying Party with prompt written notice of such claims, grants the Indemnifying Party the right to control the defense or negotiation of settlement, and makes available all reasonable assistance in defending the claims. The Indemnified Party shall not agree to any final settlement or compromise with respect to any such claim that adversely affects the Indemnifying Party without obtaining the Indemnifying Party’s written consent. 

Furthermore, MPP shall indemnify and hold harmless the upstream licensors of MSD, inventors of any patents and patent applications within the Patents, their Affiliates and their respective directors, officers, employees and agents, students, their heirs, executors, administrators, successors, legal representatives and agents and their respective successors and assigns (each a “Third Party Indemnified Party” and collectively the “Third Party Indemnified Parties”), from, against and in respect of any and all liabilities, losses, costs and expenses (including reasonable attorneys’ and experts’ fees and costs and expenses), damages, fines, penalties or amounts paid in settlement, in each case, payable to Third Parties (“Losses”), in each case to the extent resulting from any claim, cause of action or suit (whether in contract or tort or otherwise), litigation (whether at law or in equity, whether civil or criminal), arbitration or other proceedings brought or asserted by any Third Party (including any regulatory agencies) against a Party (or any other Third Party Indemnified Party) and to the extent such Losses are incurred or suffered by the Third Party Indemnified Parties or any of them as a result of, arising out of or directly or indirectly relating to: (a) any breach of this Agreement by MPP or its Affiliates, or (b) the gross negligence, willful misconduct or violation of applicable laws by or of MPP, its Affiliates or their respective directors, officers, employees or agents or any of them in performing under this Agreement; except, in each case, to the extent caused by the negligence, willful misconduct, violation of applicable or breach of this Agreement of or by either of the Third Party Indemnified Parties. MPP shall immediately notify MSD of any such suits and shall confer with MSD prior to the settlement of such claims

Form of Sublicense Agreement

7. Quality Control, Regulatory Compliance, Liability, And Indemnity

7.2 Neither MSD nor MPP shall not be responsible to Licensee or to any Third Party for any damages or losses resulting from Licensee’s or its Affiliates’ or permitted assignees’/transferees’ manufacture, packaging, labeling, receipt, shipping, handling, storage, use, importation, marketing, or sale of the Product or any other acts or omissions of Licensee arising out of this Agreement.

7.3 Licensee shall defend MPP, MSD, its Affiliates and its directors, officers, employees, and agents, and inventors of any patents and patent applications within the Patents (each and collectively a “Indemnified Party“), at Licensee’s cost and expense, and shall indemnify and hold any Indemnified Party harmless from and against any and all liabilities, losses, costs, damages, fees, or expenses (including reasonable legal expenses and attorneys’ fees incurred by a Indemnified Party) arising out of any claim, action, lawsuit or other proceeding brought against such Indemnified Party by a Third Party resulting directly or indirectly from the manufacture, packaging, labeling, receipt, shipping, handling, storage, use, importation marketing, Commercialization, or sale of Product or Substance or any other activity under this Agreement by Licensee or permitted assignees/transferees relating to: (a) any breach of this Agreement by Licensee or its Affiliates, or (b) the gross negligence, willful misconduct, or violation of applicable law by or of Licensee, its Affiliates or their respective directors, officers, employees or agents or any of them in performing under this Agreement; except, in each case, to the extent caused by the negligence, willful misconduct, violation of applicable law, or breach of this Agreement of or by MPP, MSD, its Affiliates, or any of the other Indemnified Parties. Licensee shall immediately notify MPP and MSD of any such suits and shall confer with MPP and MSD prior to the settlement of such claims.

Furthermore, Licensee shall indemnify and hold harmless the upstream licensors of MSD, inventors of any patents and patent applications within the Patents, their Affiliates and their respective directors, officers, employees and agents, students, their heirs, executors, administrators, successors, legal representatives and agents and their respective successors and assigns (each a “Third Party Indemnified Party” and collectively the “Third Party Indemnified Parties”), from, against and in respect of any and all liabilities, losses, costs and expenses (including reasonable attorneys’ and experts’ fees and costs and expenses), damages, fines, penalties or amounts paid in settlement, in each case, payable to Third Parties (“Losses”), in each case to the extent resulting from any claim, cause of action or suit (whether in contract or tort or otherwise), litigation (whether at law or in equity, whether civil or criminal), arbitration or other proceedings brought or asserted by any Third Party (including any regulatory agencies) against a Party (or any other Third Party Indemnified Party) and to the extent such Losses are incurred or suffered by the Third Party Indemnified Parties or any of them as a result of, arising out of or directly or indirectly relating to: (a) any breach of this Agreement by Licensee or its Affiliates, or (b) the gross negligence, wilful misconduct or violation of applicable laws by or of Licensee, its Affiliates or their respective directors, officers, employees or agents or any of them in performing under this Agreement; except, in each case, to the extent caused by the negligence, wilful misconduct, violation of applicable or breach of this Agreement of or by either of the Third Party Indemnified Parties. Licensee shall immediately notify MPP and MSD of any such suits and shall confer with MPP and MSD prior to the settlement of such claims.

7.4 Notwithstanding anything expressed or implied to the contrary in this clause, the amount of any losses subject to indemnification shall be reduced by the amount of any insurance proceeds received by the indemnified Party with respect to such Losses; and there shall be no obligation under this Agreement to indemnify such indemnified Party for the amount of losses so reduced.