Provision Language
ARTICLE 11. INDEMNIFICATION
11.1. Indemnification by Visterra. Visterra hereby agrees to defend, hold harmless and indemnify (collectively “Indemnify”) SIIL and its Affiliates, agents, directors, officers and employees (the “SIIL Indemnitees”) from and against any and all liabilities, expenses or losses, including without limitation reasonable legal expenses and attorneys’ fees (collectively “Losses”) in each case resulting from Third Party suits, claims, actions and demands (each, a “Third Party Claim”) arising directly or indirectly out of (a) a breach of any of Visterra’s obligations under this Agreement, including without limitation Visterra’s representations and warranties or covenants set forth in Article 10, (b) the negligence or willful misconduct of any Visterra Indemnitee, or (c) the research, Development, Manufacture or Commercialization of Licensed Antibodies and/or Products by, or on behalf of, the Visterra Indemnitees in the Visterra Territory. Visterra’s obligation to Indemnify the SIIL Indemnitees pursuant to this Section 11.1 shall not apply to the extent that any such Losses are subject to indemnification by SIIL pursuant to Section 11.2.
11.2. Indemnification by SIIL. SIIL hereby agrees to Indemnify Visterra and its Affiliates, licensees, agents, directors, officers and employees (the “Visterra Indemnitees”) from and against any and all Losses resulting from Third Party Claims arising directly or indirectly out of (a) a breach of any obligations of SIIL under this Agreement, including without limitation SIIL’s representations and warranties or covenants set forth in Article 10; (b) the research, Development, Manufacture or Commercialization of Products by SIIL or its Affiliates in the Licensed Territory; or (c) the negligence or willful misconduct of anySIIL Indemnitee. SIIL’s obligation to Indemnify the Visterra Indemnitees pursuant to the foregoing sentence shall not apply to the extent that any such Losses are subject to indemnification by Visterra pursuant to Section 11.1.
11.3. Procedure. The indemnified Party shall provide the indemnifying Party with prompt notice of the claim giving rise to the indemnification obligation pursuant to this Article 11 and the exclusive ability to defend (with the reasonable cooperation of the indemnified Party) or settle any such claim; provided, however, that the indemnifying Party shall not enter into any settlement for damages other than monetary damages without the indemnified Party’s written consent, such consent not to be unreasonably withheld. The indemnified Party shall have the right to participate, at its own expense and with counsel of its choice, in the defense of any claim or suit that has been assumed by the indemnifying Party. If the Parties cannot agree as to the application of Sections 11.1 and 11.2 to any particular Third Party Claim, the Parties may conduct separate defenses of such Third Party Claim. Each Party reserves the right to claim indemnity from the other in accordance with Sections 11.1 and 11.2, as applicable, upon resolution of the underlying claim, notwithstanding the provisions of this Section 11.3 requiring the indemnified Party to tender to the indemnifying Party the exclusive ability to defend such claim or suit.
11.4. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS OR OPPORTUNITY OR DIMINUTION OF GOODWILL ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION 11.4 IS INTENDED TO OR SHALL LIMIT OR RESTRICT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF ANY PARTY UNDER SECTION 11.1 OR 11.2, OR DAMAGES AVAILABLE FOR A PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS IN ARTICLE 12.