By Amgen. Amgen agrees to defend Company and its (and its Affiliates’) directors, officers, employees and agents (the “Company Indemnified Parties”) at Amgen’s cost and expense, and will indemnify and hold Company and the other Company Indemnified Parties harmless from and against any claims, losses, costs, damages, fees or expenses (including legal fees and expenses) (collectively, “Losses”) to the extent resulting from any Third Party claim (including product liability claims) arising out of or otherwise relating to (a) the gross negligence or willful misconduct of Amgen, or (b) the material breach of this Agreement or the representations and warranties made hereunder by Amgen; except, in each case, to the extent such Losses result from clause (a), (b), or (c) of Section 8.1.2 (By Company). In the event of any such claim against the Company Indemnified Parties by a Third Party, the foregoing indemnity obligations shall be conditioned upon (x) Company promptly notifying Amgen in writing of the claim, (y) Company granting Amgen sole management and control, at Amgen’s sole expense, of the defense of the claim and/or its settlement (provided that Amgen shall not settle any such claim without the prior written consent of Company if such settlement does not include a complete release from liability or if such settlement would involve undertaking an obligation (including the payment of money by a Company Indemnified Party), would bind or impair a Company Indemnified Party, or includes any admission of wrongdoing or that any intellectual property or proprietary right of Company is invalid or unenforceable), and (z) at Amgen’s expense, the Company Indemnified Parties cooperating with Amgen; provided that in the case of (x) and (z) any failure or delay in such notice or cooperation shall not excuse any obligations of Amgen except to the extent Amgen is actually prejudiced thereby. The Company Indemnified Parties may, at their option and expense, be represented in any such action or proceeding by counsel of their own choosing.
By Amgen. Amgen agrees to defend EnteraBio, its Affiliates and their respective directors, officers, employees and agents (the “EnteraBio Indemnified Parties”), at Amgen’s cost and expense, and will indemnify and hold EnteraBio and the other EnteraBio Indemnified Parties harmless from and against any Losses to the extent resulting from any Third Party Claims arising out of (a) the gross negligence or willful misconduct of Amgen, its Affiliates, or their respective Sublicensees in connection with its activities under this Agreement; (b) the material breach of this Agreement or the representations, warranties and covenants made hereunder by Amgen; (c) the material breach by Amgen or its Affiliates of any agreement or arrangement with a subcontractor performing its obligations under this Agreement pursuant to Section 3.2, and or (d) the research, development, manufacture or other Exploitation of any Product by or on behalf of Amgen, its Affiliates, or their respective Sublicensees (including from product liability and intellectual property infringement claims); except, in each case, to the extent such Losses result from clause (a), (b), (c) or (d) of Section 10.1.1.
By Amgen. Amgen agrees to indemnify, defend and hold harmless FMCH, its Affiliates and Managed Centers, and its and their respective employees, officers and directors from and against any and all amounts payable to third parties pursuant to a written settlement agreement or court order (including but not limited to reasonable attorney fees and other costs related to the defense or prosecution of the case incurred by FMCH in the defense of a third party claim prior to Amgen’s assumption of the defense thereof) (“Third Party Awards”) that result directly from: (a) breach of any Amgen representation or warranty hereunder, (b) Products that as of the date of shipment by Amgen: (i) contain defects in material and workmanship, (ii) are adulterated or misbranded within the meaning of applicable provisions of the FDC Act, or (iii) are prohibited from being introduced into interstate commerce by Section 301 of the FDC Act or Section 351 of the Public Health Service Act, or (c) Amgen’s or its Affiliates gross negligence or willful misconduct; provided that such indemnity shall not apply to Third Party Awards arising out of the negligent or willful actions or omissions of FMCH, its Affiliates or Managed Centers, or its or their respective agents, employees, representatives, successors or assigns, or to the extent arising out of a matter for which FMCH is required to indemnify Amgen pursuant to Section 7.2.2 of this Agreement, or due to defects in the Products caused by persons other than Amgen or that result from neglect, misuse, unauthorized adulteration or modification, improper testing, handling or storage or any cause beyond the range of normal usage; and further provided that (a) Amgen is promptly notified in writing of any such third party claim for which this indemnity obligation may apply, (b) Amgen shall have sole control of the defense and settlement thereof, and (c) FMCH cooperates fully and gives Amgen all reasonably requested information and assistance for such defense. The preceding paragraph and FMCH’s rights under Section 8.2, if any, set forth FMCH’s and its Affiliates’ sole remedies for third party claims relating to Amgen of Product defect, adulteration, misbranding, or infringement.
By Amgen. Amgen agrees to indemnify, defend, and hold Dialysis Center, its officers, directors, agents and employees (collectively, the “Dialysis Center Indemnitees”) harmless from and against any and all loss, damage and/or expense (including reasonable attorney’s fees) that they may suffer as a result of claims, demands, actions, proceedings, liabilities, costs or judgments, or threats thereof arising out of (i) any defect in the design or manufacture of the Product or handling by Amgen of the Product, including claims for property damage, loss of life, and bodily injury; or (ii) the breach by Amgen or Amgen Inc. of any of their respective warranties, representations or covenants contained in this Agreement. This indemnity is conditioned on Dialysis Center notifying Amgen of any claims falling within this indemnity within fifteen (15) business days after Dialysis Center receives notice of such claim. Notwithstanding anything to the contrary contained herein, Amgen and Amgen Inc. shall not have any obligation to defend, indemnify or hold the Dialysis Center Indemnitees harmless from claims, suits or damages, arising out of the negligent acts or omissions or willful misconduct of the Dialysis Center Indemnitees. Amgen Inc. hereby guarantees the performance of Xxxxx’s obligations as set forth in this Section 7.2.1. This indemnification shall survive the termination or expiration of this Agreement.
By Amgen. Amgen agrees to defend CytomX, its Affiliates and their respective directors, officers, employees and agents (the “CytomX Indemnified Parties”), at Amgen’s cost and expense, and will indemnify and hold CytomX and the other CytomX Indemnified Parties harmless from and against any Losses to the extent resulting from any Third Party Claims arising out of (a) the gross negligence or willful misconduct of Amgen, its Affiliates, or their respective Sublicensees in connection with its activities under this Agreement; (b) the material breach of this Agreement or the representations, warranties and covenants made hereunder by Amgen; or (c) the research, development, manufacture or other Exploitation of any Product by or on behalf of Amgen, its Affiliates, or their respective Sublicensees (including from product liability and intellectual property infringement claims); except, in each case, to the extent such Losses result from clause (a), (b), (c) or (d) of Section 10.1.1.
By Amgen. Amgen agrees to indemnify, defend and hold harmless NMC, its Affiliates and Managed Centers, and its and their respective employees, officers and directors from and against any and all amounts payable to third parties pursuant to a written settlement agreement or court order (including but not limited to reasonable attorney fees incurred by NMC in the defense of a third party claim prior to Amgen’s assumption of the defense thereof) (“Third Party Awards”) that result directly from: (a) Products that as of the date of shipment by Amgen: (i) contain defects in material and workmanship, (ii) are adulterated or misbranded within the meaning of applicable provisions of the FDC Act, or (iii) are prohibited from being introduced into interstate commerce by Section 301 of the FDC Act or Section 351 of the Public Health Service Act, or (b) Amgen’s gross negligence or willful misconduct; provided that such indemnity shall not apply to Third Party Awards arising out of the negligent or willful actions or omissions of NMC, its Affiliates or Managed Centers, or its or their respective agents, employees, representatives, successors or assigns, or to the extent arising out of a matter for which NMC is required to indemnify Amgen pursuant to Section 6.2.2 of this Agreement, or due to defects in the Products caused by persons other than Amgen or that result from neglect, misuse, unauthorized adulteration or modification, improper testing, handling or storage or any cause beyond the range of normal usage; and further provided that (a) Amgen is promptly notified in writing of any such third party claim for which this indemnity obligation may apply, (b) Amgen shall have sole control of the defense and settlement thereof, and (c) NMC cooperates fully and gives Amgen all requested information and assistance for such defense. The preceding paragraph sets forth NMC’s and its Affiliates’ sole remedy for claims of Product defect, adulteration or misbranding.
By Amgen. Amgen shall maintain comprehensive general liability insurance, including contractual liability insurance, against claims for bodily injury or property damage arising out of its activities contemplated by this Agreement, with such insurance companies and in such amounts as Amgen customarily maintains for similar activities. Amgen shall maintain such insurance during the term of this Agreement and thereafter for FOIA CONFIDENTIAL TREATMENT REQUESTED*** so long as Amgen maintains comprehensive general liability insurance for itself. Amgen may self-insure if that is customary for Amgen in similar situations.
By Amgen
