Provision Language
XIII. INDEMNIFICATION AND LIMITATION OF LIABILITY
13.1 In order to allocate between themselves the responsibility for claims arising out of this Agreement, and except as otherwise specifically provided for herein, from and after the Effective Date, the parties will indemnify each other as provided in this Article XIII.
13.1.1 Indemnification Obligations of LICENSEE. From and after the Effective Date, LICENSEE will defend, indemnify and hold Council, its Affiliates, and each of their respective officers, directors, agents, employees and shareholders (collectively, “Council Indemnitees”), harmless from and against any and all Damages which Council Indemnitees may incur or suffer, or with which any of them may be faced arising out of or in connection with:
(a) The development or Commercialization of the Licensed Product (including with respect to product liability, death, personal injury, pregnancy, or otherwise);
(b) The breach by LICENSEE of this Agreement including any breach of its representations, warranties, covenants or obligations under this Agreement;
(c) LICENSEE’s violation of any applicable Laws; and
(d) LICENSEE’s willful misconduct; and
(e) Any suit against Council related directly or indirectly to the Licensed Product and brought by any investor or holder of equity or other interest in, or lender to, LICENSEE or any sublicensee hereunder; provided, however, that, in each such case, LICENSEE will not be liable hereunder to the extent such Damages arise from the willful misconduct of, or a violation of any applicable laws by or from the breach of the provisions of this Agreement by Council, its Affiliates, agents, employees or contractors.
13.1.2 Indemnification Obligations of Council. From and after the Effective Date, Council will defend, indemnify and hold LICENSEE, its Affiliates, and each of’ their respective officers, directors, agents, employees, shareholders or members (collectively, “LICENSEE Indemnitees”) harmless from and against any and all Damages which LICENSEE Indemnitees may incur, or suffer, or with which any of them may be faced arising out of:
(a) The breach by Council of this Agreement including any breach of its representations, warranties, covenants or obligations under this Agreement;
(b) Council’s violation of any applicable Laws;
(c) Claims made by subjects in the Council-sponsored clinical trials to the extent they make a claim based on their participation in those trials;
(d) Claims made by Watson Pharma Inc. and/or its successor in interest with respect to the Watson License or by WomanCare Global Trading CIC and/or its successor in interest with respect to the WCG Agreement; and
(e) Council’s willful misconduct; provided, however, that, in each such case, Council will not be liable hereunder to the extent such Damages arise from willful misconduct of, or a violation of any applicable laws or from the breach of the provisions of this Agreement LICENSEE, its Affiliates, agents, employees or contractors.
13.2 Conditions of Indemnification of Third-Party Claims. The obligations and liabilities of an indemnifying Party under Section 13.1 and hereof with respect to Damages resulting from Claims made by Third Parties will be subject to the following terms and conditions:
13.2.1 Promptly after the delivery of a notice seeking indemnification in respect of a Claim and subject to Section 13.2.3, the indemnifying Party may elect, by written notice to the indemnified Party, to undertake the defense thereof, at the sole cost and expense of the indemnifying Party, provided that an indemnified Party’s failure or delay to provide notice to the indemnifying party will not constitute a waiver of the indemnifying Party’s indemnification obligations unless, and then only to the extent that, an indemnifying Party is actually and damaged thereby. If the indemnifying Party chooses to defend any Claim, the indemnified Party will cooperate with all reasonable requests of the indemnifying Party and will make available to the indemnifying Party any books, records or other documents within its control that are necessary or appropriate for such defense.
13.2.2 In the event that the indemnifying Party, within a reasonable time after receipt of a notice seeking indemnification, does not so elect to defend such Claim, the indemnified Party will have the right (upon further notice to the indemnifying Party) to undertake the defense, compromise or settlement of such Claim for the account of the indemnifying Party, subject to the right of the indemnifying Party to assume the defense of such Claim pursuant to the terms of Section 13.2.1 at any time prior to settlement, compromise or final determination thereof, provided, that the indemnifying Party reimburses in full all costs of the indemnified Party (including reasonable attorney’s fees and expenses) incurred by it in connection with such defense prior to such assumption.
13.2.3 Notwithstanding anything in this Section 13.2 to the contrary, if the indemnifying Party assumes the defense of any Claim, any indemnified Party will be entitled to participate in the defense, compromise or settlement of such Claim with counsel of its own choice at its own expense.
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13.4 Settlements. No Person who has undertaken to defend a Claim under Sections 13.2.1 or 13.2.2 will, without written consent of all indemnified Parties, settle or compromise any Claim or consent to entry of any judgment, provided, however, that such consent will not be required if such settlement, compromise or judgment (i) includes as an unconditional term thereof the release by the claimant or the plaintiff of all indemnified Parties from all liability arising from events which allegedly gave rise to such Claim and (ii) contains no restriction, limitation or prohibition of any kind on the manner in which any indemnified Party conducts its business. Any payment made by a Party to settle a Claim against it without obtaining consent of the indemnifying Party will be at its own cost and expense. Notwithstanding the foregoing, the indemnifying Party will be liable under this Article XIII for any settlement effected without its consent if the indemnifying Party has refused to acknowledge liability for indemnification hereunder and/or declines to defend the indemnified Party in any such Claim, action or proceeding and it is determined that the indemnifying Party was liable to the indemnified Party for indemnification related to such settlement.
13.5 Disclaimer of Consequential Damages. IN NO EVENT WILL EITHER COUNCIL OR LICENSEE BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING UNDER OR AS A RESULT OF THIS AGREEMENT (OR THE TERMINATION HEREOF) INCLUDING, BUT NOT LIMITED TO, THE LOSS OF PROSPECTIVE PROFITS OR ANTICIPATED SALES, OR ON ACCOUNT OF EXPENSES, INVESTMENTS, OR COMMITMENTS IN CONNECTION WITH THE BUSINESS OR GOODWILL OF LICENSEE OR COUNCIL OR OTHERWISE, EXCEPT TO THE EXTENT ANY SUCH DAMAGES RESULT FROM SUCH OTHER PARTY’S BREACH OF ARTICLE XI HEREOF, WILLFUL MISCONDUCT OR ARE PAID TO A THIRD PARTY AS PART OF A THIRD PARTY CLAIM.