Provision Language
Novartis – MPP Agreement
7. Liability and Indemnity
7.1 MPP undertakes in respect of any and all losses, claims, liabilities, costs, awards, fines, penalties, damages and expenses including, legal costs and other professional expenses of any nature whatsoever and whether or not reasonably foreseeable or avoidable (“Losses”) incurred by Novartis and/or its Affiliates arising out of, or in connection with any claim by a Third Party relating to:
(A) any breach by the Sublicensees that causes or results into a breach by MPP of any provisions of this Agreement;
(B) any breach by the Sublicensees of any provisions of the Sublicence;
(C) any possession, manufacture, sale, use or other disposition of any Product by the Sublicensee;
(D) any negligence or wilful misconduct by or on behalf of Sublicensee;
to: (i) provide Novartis with prompt written notice of such Third Party claims or potentials for Third Party claims; and (ii) grant Novartis the right to control the defence or negotiation of settlement of such Third Party claims and/or Sublicensee breaches; and (iii) to grant Novartis the exclusive right to claim Losses from the Sublicensee relating to breach of the Sublicence Agreement, and (iv) make available all reasonable assistance which is reasonably requested by Novartis in defending any claims.
7.2. MPP undertakes to indemnify, defend and hold harmless Novartis and its Affiliates in respect of any and all losses, claims, liabilities, costs, awards, fines, penalties, damages and expenses including, legal costs and other professional expenses of any nature whatsoever and whether or not reasonably foreseeable or avoidable (“Losses”) incurred by Novartis and/or its Affiliates arising out of, or in connection with any claim by a Third Party relating to:
(A) any breach by MPP of any provisions of this Agreement;
(B) any negligence or wilful misconduct by or on behalf of MPP; and/or except to the extent arising or resulting from Novartis’s negligence or wilful misconduct.
7.3. If Novartis exercises its rights under Clause 7.2, Novartis shall: (i) provide MPP with prompt written notice of such Third Party claims; and (ii) grant MPP the right to control the defence or negotiation of settlement of such Third Party claims (except to the extent such claims relate to the validity or enforcement of the Manufacturing Patent, the Patents or Non-Territory Patents); and (iii) make available all reasonable assistance which is reasonably requested by MPP in defending any claims.
7.4. Novartis will not be liable to MPP or any Sublicensee for any Losses incurred by MPP or a Sublicensee as a result of: (i) MPP’s exercise of the rights granted to it under this Agreement; or (ii) a Sublicensee’s exercise of the rights granted to it under a Sublicence, in both cases including any Losses in relation to any infringement of the intellectual property rights of any Third Party.
7.5. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHER THIRD PARTY RIGHTS, VALIDITY OR ENFORCEABILITY OF INTELLECTUAL PROPERTY RIGHTS, THE GRANT OF ANY PENDING PATENT APPLICATIONS, OR RELEVANCE OF THE MANUFACTURING PATENT OR THE PATENTS TO THE PRODUCTS, ARE MADE OR GIVEN BY OR ON BEHALF OF NOVARTIS AND, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ALL REPRESENTATIONS AND WARRANTIES, WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, ARE HEREBY EXPRESSLY EXCLUDED.
7.6. Novartis did not conduct any studies to determine whether any salt, hydrate or polymorph of nilotinib other than crystal Form B of the monohydrochloride monohydrate salt of nilotinib (active ingredient of Tasigna®) has the same food effect and/or QT prolongation as Tasigna or whether any product containing a form other than the crystal Form B of the monohydrochloride monohydrate salt of nilotinib (active ingredient of Tasigna) can be safely administered to patients by dispersing the content in apple sauce. Novartis reserves the right to share this information with relevant Regulatory Authorities.
7.7. Notwithstanding the foregoing, nothing in this Agreement shall limit or exclude the liability of either Party for death or personal injury resulting from negligence or fraud or fraudulent misrepresentation or other matters, the exclusion of liability for which is not allowable under applicable laws.
Form of Sublicense
13. TERM AND TERMINATION
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13.5 The provisions of Clauses 13.4(a), 13.4(b) and 13.4(d) are without prejudice to the Licensor’s or Novartis’s rights to claim all damage and loss suffered by the Licensor, Novartis and/or any of their Affiliates arising out of, or in relation to, the event giving rise to termination. In respect of such damage or loss under Clauses 13.4 (a), 13.4(b) and 13.4(d) the Licensee hereby agrees to indemnify the Licensor and Novartis subject to the Licensor and Novartis (each of which shall be entitled to conduct the defence of such claims against them) taking reasonable account of the Licensee’s input in the conduct of the claim to which such loss or damage relates.
15. WARRANTIES, INDEMNITIES, COMPLIANCE WITH LAW
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15.3 The Licensee hereby agrees to indemnify the Licensor, Novartis, their Affiliates and their respective officers, directors, shareholders, representatives, agents, employees, successors and assigns (each an “Indemnified Person”) against any and all suits, claims (whether or not successful, compromised or settled), actions, demands, proceedings, judgments, liabilities, expenses and/or losses, including reasonable legal expense and attorneys’ fees (“Losses”), that arise in connection with (i) the Licensee’s breach of this Agreement; or (ii) the Licensee’s exercise of its rights pursuant to this Agreement (including for the avoidance of doubt any product liability claim relating to the Products manufactured by or on behalf of the Licensee pursuant to this Agreement), provided that the indemnification obligation established in this Clause shall not apply to the extent such Losses arise out of negligence or wilful misconduct by Novartis, their Affiliates and their respective officers, directors, shareholders, representatives, agents, employees, successors and assigns. Novartis shall, or shall procure that the Indemnified Person shall, provide the Licensee with prompt written notice of such claims. Subject to Clause 10, the Indemnified Person and the Licensee will agree on the appropriate party to assume control of the defence or negotiation of settlement and will agree to make available all reasonable assistance in defending any claims.