Provision Language
5. Product Development
5.1 SRA Product Development
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5.1.4 Indemnification by Foundation. In connection with the last paragraph in each of Section 5.1.2 and Section 5.1.3, Foundation hereby agrees to save, defend, indemnify, and hold harmless Roche’s and its Affiliates’ trustees, officers, employees and agents (each, a “Roche Indemnitee”) from and against any and all losses, damages, liabilities, expenses and costs, including reasonable legal expenses and attorneys’ fees (“Roche Losses”), to which a Roche Indemnitee may become subject as a result of any claim, demand, action or other proceeding by any Third Party to the extent such RocheLosses arise directly or indirectly out of (a) [**] or [**] of any SRA Development Candidate or SRA Product by Foundation, its Affiliate(s) or licensee(s) pursuant to the last paragraph of Section 5.1.2 or 5.1.3, or (b) the breach of the SRA by Foundation or the gross negligence or willful misconduct of Foundation pursuant to the last paragraph of Section 5.1.2 or 5.1.3, except in each case to the extent such Losses result from (x) the breach of this Agreement by Roche or the gross negligence or willful misconduct of any Roche Indemnitee, or (y) the activities of Roche or its agents or employees in connection with any SRA Development Candidate or SRA Product. The obligations of Foundation under this Section 5.1.4 are conditioned upon Roche’s delivery of written notice to Foundation of any potential Roche Losses promptly after Roche becomes aware of such potential Roche Losses. Foundation shall have the right to assume the defense of any suit or claim related to RocheLosses if it has assumed responsibility for the suit or claim in writing. If Foundation defends the suit or claim, Roche may participate in (but not control) the defense thereof at its sole cost and expense but Roche may not settle such suit or claim without the prior written consent ofFoundation, not to be unreasonably withheld.
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17. Indemnification
17.1 Indemnification by Roche
(a) Roche shall indemnify, hold harmless and defend PTC and its directors, officers, employees and agents from and against any and all losses, expenses, cost of defense (including without limitation attorneys’ fees, witness fees, damages, judgments, fines and amounts paid in settlement) and any amounts PTC becomes legally obligated to pay because of any claim or claims against it to the extent that such claim or claims arise out of Research Program orProduct Development Program activities, or any other activities related to the Product (e.g., product liability claims),conducted by or on behalf of any member of the Roche Group, except to the extent such losses, expenses, costs and amounts are due to the gross negligence or willful misconduct or failure to act of PTC.
(b) Roche shall indemnify, hold harmless and defend the Foundation and its directors, officers, employees and agents from and against any and all losses, expenses, cost of defense (including without limitation attorneys’ fees, witness fees, damages, judgments, fines and amounts paid in settlement) and any amounts the Foundation becomes legally obligated to pay because of any claim or claims against it to the extent that such claim or claims arise out of Research Program or Product Development Program activities, or any other activities related to the Product (e.g., product liability claims), conducted by or on behalf of any member of the Roche Group, except to the extent such losses, expenses, costs and amounts are due to the gross negligence or willful misconduct or failure to act of the Foundation. For clarity, nothing in this Section 17.1(b) or Sections 17.2 or 17.3 shall be interpreted as limiting PTC’s obligations pursuant to the SRA, including its obligations pursuant to Section 8.1 of the SRA.
17.2 Indemnification by PTC. PTC shall indemnify, hold harmless and defend Roche and its directors, officers, employees and agents from and against any and all losses, expenses, cost of defense (including without limitation attorneys’ fees, witness fees, damages, judgments, fines and amounts paid in settlement) and any amounts Roche becomes legally obligated to pay because of any claim or claims against it to the extent that such claim or claims arise out of activities related to the Research Program or Product Development Program activities or any other activities conducted by or on behalf of PTC relating to PTC’s obligations under this Agreement, except to the extent such losses, expenses, costs and amounts are due to the gross negligence or willful misconduct or failure to act of any member of the Roche Group.
17.3 Procedure. In the event of a claim by a Third Party against any Person entitled to indemnification under this Agreement (in such capacity, the “Indemnified Party”), the Indemnified Party shall promptly notify the other Party (or the Foundation) (in such capacity, the “Indemnifying Party”) in writing of the claim (it being understood that the failure by the Indemnified Party to give prompt notice of a Third Party claim as provided in this Section 17.3 shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually prejudiced as a result of such failure to give prompt notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, undertake and solely manage and control, at its sole expense and with counsel reasonably satisfactory to the Indemnified Party, the defense of the claim. If the Indemnifying Party does not undertake such defense, the Indemnified Party shall control such defense. The Party (or the Foundation, as applicable) not controlling such defense shall cooperate with the other Party (or the Foundation, as applicable) and may, at its option and expense, participate in such defense; provided that if the Indemnifying Party assumes control of such defense and the Indemnified Party in good faith concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith. The Party (or the Foundation, if applicable) controlling such defense shall keep the other Party (or the Foundation, as applicable) advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the otherParty (or the Foundation, as applicable) with respect thereto. The Indemnifying Party shall not be liable for any litigation costs or expenses incurred by the Indemnified Party without the Indemnifying Party’s written consent. The Indemnified Party shall not settle any such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld, delayed or conditioned. Without the prior written consent of the Indemnified Party, the Indemnifying Party shall not settle any such action, suit, proceeding or claim, or consent to any judgment in respect thereof, that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto, that imposes any liability or obligation on the Indemnified Party or that acknowledges fault by the Indemnified Party.
18. Disclaimer
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, PTC AND ROCHE EACH DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO EACH OF THEIR RESEARCH, DEVELOPMENT AND COMMERCIALIZATION EFFORTS HEREUNDER, INCLUDING, WITHOUT LIMITATION, WHETHER THE PRODUCTS CAN BE SUCCESSFULLY DEVELOPED OR MARKETED, THE ACCURACY, PERFORMANCE, UTILITY, RELIABILITY, TECHNOLOGICAL & COMMERCIAL VALUE, COMPREHENSIVENESS, MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE WHATSOEVER OF THE PRODUCTS. IN NO EVENT SHALL THE PARTIES OR THE FOUNDATION BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY. NOTHING IN THIS ARTICLE 18 IS INTENDED TO LIMIT OR RESTRICT(I) THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF EITHER PARTY OR FOUNDATION UNDER SECTIONS 15.9, 17.1 AND 17.2, OR (II) REMEDIES AVAILABLE TO EITHER PARTY OR THE FOUNDATION WITH RESPECT TO A BREACH OF SECTION 19.1.