17. Insurance, Liability, and Indemnification; Liability
17.1 Insurance. Awardee shall maintain insurance sufficient to cover the activities, risks, and potential omissions relevant to the Project, including clinical trial liability insurance cover, in accordance with generally accepted industry standards and as required by law. In the event that the Public Health License becomes exercisable and CEPI exercises such rights, CEPI shall maintain comparable insurance protection. Awardee shall provide CEPI with a certificate confirming such insurance upon request.
17.2 Indemnification for Third Party Claims. Awardee shall indemnify and defend CEPI, its Affiliates, officers, directors, third party contractors and employees from and against any and all claims, damages, and liabilities asserted by third parties (including claims for negligence) which arise directly or indirectly from: (i) Awardee’s, or its Affiliate’s or Subawardee’s activities under this Agreement, (ii) the research, development, manufacture, promotion or use of any Project Vaccine, Project Results or Enabling Rights (including for clarity, the use of any Project Results in development activities and clinical studies) conducted by Awardee, or its Affiliates or Subawardees, or (iii) any claim that the use of Awardee’s Intellectual Property Rights infringe the intellectual property rights of any third party, except to the extent such claim, damage or liability is caused by CEPI’s negligence or intentional misconduct. In the event that the Public Health License becomes exercisable and CEPI exercises such rights, the obligations of this Clause 17.2 shall apply to CEPI mutatis mutandis.
17.3 Conduct of Responses to Third Party Claims. Each Party shall use all reasonable endeavours to inform the other Party [***] of any circumstances that are likely to give rise to a third party claim which may be covered by Clause 17.2 together with copies of all relevant papers and official documents. The indemnified party shall not take any material action in respect of any third party claim which is covered by Clause 17.2 without the consent of the indemnifying party, including settlement of any such third party claim, provided such consent is not unreasonably conditioned, withheld or delayed. The indemnifying party assumes control of defence of the claim and shall keep the indemnified party fully informed of the progress of all relevant third party claims which are covered by Clause 17.2 and shall fully consult with the indemnified party on the nature of any defence to be advanced in advance. The indemnified party may have its counsel participate in (but not control) the defence of a claim at the indemnified party’s own expense.
17.4 Exclusions. Except in the event of a breach of a Party’s confidentiality obligations under Clause 18 or CEPI’s breach of the scope of the Public Health License, neither Party shall be liable to the other Party for any [***] arising out of any breach of or failure to perform any of the provisions of this Agreement.
17.5 Liability Cap. [***]
17.6 Exclusions from Liability Cap. Notwithstanding the foregoing, nothing in this Agreement shall limit the liability of either Party in respect of: [***]
17.7 Pandemic Insurance. The Parties acknowledge that, as of the Effective Date, the WHO is considering an insurance mechanism that would provide insurance cover for the suppliers of investigational products for use in the case of a PHEIC [Public Health Emergency of International Concern] declared by WHO. The Parties agree that, if and when this mechanism is established, they shall discuss in good faith the impact of such arrangements on the Parties’ obligations under this Agreement and how it would apply to the supply of Project Vaccines.