By BMS. Subject to Section 10.3, BMS shall indemnify, defend and hold harmless Athersys and its directors, officers and employees (each an “Athersys Indemnitee”) from and against any and all liabilities, damages, losses, costs or expenses (including attorneys’ and professional fees and other expenses of litigation and/or arbitration) (each a “Liability”) resulting from a claim, suit or proceeding made or brought by a Third Party against an Athersys Indemnitee arising from or occurring as a result of (i) any breach of the representations and warranties set forth in Section 8.2, or (ii) the performance (or failure to perform) by BMS of its obligations hereunder.
By BMS. In the event that BMS makes, has made, uses, sells or has sold any Product pursuant to Section 13.6(c) or (d), BMS shall, and shall obligate its sublicensees, if any, to, indemnify SGI and its Affiliates, and their respective directors, officers, employees and agents with respect thereto to the same extent as the indemnification required to be provided by SGI in Section 11.1.
By BMS. Subject to the terms of this Agreement and any applicable [**], BMS hereby grants to Lexicon and its Affiliates, within the Territory, an exclusive right and license, with the right to sublicense, under BMS's rights in the Program Intellectual Property to develop, make, have made, import, use, have used, offer for sale, sell and have sold Lexicon Development Compounds and Lexicon Products. Any sublicense under this Section 4.2.2 shall be set forth in a written agreement containing confidentiality, non-use, ownership of intellectual property and audit provisions consistent with and no less restrictive than those contained herein, shall be subject and subordinate to the terms and conditions of this Agreement, and shall obligate the Sublicensee to make the milestone and royalty payments required hereunder; provided that Lexicon shall remain responsible for all payments due to BMS hereunder. Lexicon shall provide BMS with an [**] copy of each sublicense agreement promptly after executing the same; provided, however, that subject to the exceptions set forth in Section 1.18, each such sublicense agreement shall be Confidential Information of Lexicon.
By BMS. BMS shall indemnify and hold ICAgen, its Affiliates and its Sublicensees, if any, and their respective directors, officers, employees and agents, harmless from and against any and all liabilities, damages, losses, costs and expenses (including the reasonable fees of attorneys and other professionals) arising out of or resulting from:
(i) negligence, recklessness or wrongful intentional acts or omissions of BMS, its Affiliates or its Sublicensees, if any, and their respective directors, officers, employees and agents, in connection with the work performed by BMS under the Research Program;
(ii) any warranty claims, Product recalls or any tort claims of personal injury (including death) or property damage relating to or arising out of the manufacture, use, distribution or sale of any Collaboration Compound or Product by BMS, its Affiliates or its Sublicensees due to any negligence, recklessness or wrongful intentional acts or omissions by, or strict liability of, BMS, its Affiliates or its Sublicensees, if any, and their respective directors, officers, employees and agents, except, in each case, to the comparative extent such claim arose out of or resulted from the negligence, recklessness or wrongful intentional acts or omissions of ICAgen, its Affiliates or its Sublicensees, if any, and their respective directors, officers, employees and agents; or
(iii) any breach of any representation or warranty made by BMS pursuant to Section 2.1.
By BMS. BMS covenants that neither it nor its Affiliates shall use or practice the Corgentech Technology for any use or purpose except as expressly permitted in Sections 10.1 and 10.3 as necessary to perform its obligations under this Agreement; provided, that the foregoing shall not apply to any Corgentech Know-How from and after the date that such Corgentech Know-How no longer remains Confidential Information of Corgentech.
By BMS. BMS shall indemnify and hold OXiGENE and its Affiliates and their respective directors, officers, employees and agents, harmless from and against any and all liabilities, damages, losses, costs and expenses (including the reasonable fees of attorneys and other professionals and other reasonable litigation expenses) arising out of or resulting from:
(i) the negligence, recklessness or intentional misconduct of BMS, its Affiliates or its Sublicensees and their respective directors, officers, employees and agents, in connection with the work performed by BMS under the Research Program or pursuant to Section 8 or in connection with BMS's exercise of any of its rights hereunder;
(ii) any and all product liability claims resulting from the development and/or commercialization of any Covered Product by BMS, its Affiliates or its Sublicensees;
(iii) any warranty claims, Covered Product recalls or any tort claims of personal injury (including death) or property damage relating to or arising out of the manufacture, use, distribution or sale of any Collaboration Compound or Covered Product by BMS, its Affiliates or its Sublicensees due to any negligence, recklessness or intentional misconduct by, or strict liability of, BMS, its Affiliates or its Sublicensees, and their respective directors, officers, employees and agents, except, in each case, to the comparative extent such claim arose out of or resulted from the negligence, recklessness or intentional misconduct of OXiGENE or its Affiliates and their respective directors, officers, employees and agents; or
(iv) any breach of any representation or warranty made by BMS pursuant to Section 2.1.
By BMS. In the event of the termination of this Agreement pursuant to Sections 14.2, 14.3, 14.4 or 14.5, and to the extent that the Final Product, any procedure in the manufacture thereof, any API or other component used for formulation of Final Product, any fill/finish or packaging, or any QC/QA or release activities is, at the time of such termination, manufactured, performed or conducted by BMS or any of its Affiliates with respect to Japan (or by Third Parties contracted to do so by or on behalf of BMS or any of its Affiliates) (collectively, “BMS Manufactured Components”), then, notwithstanding any provision to the contrary in the Existing Agreements, BMS shall use commercially reasonable efforts to manufacture and supply, perform or conduct same to or for the benefit of ImClone (for its own benefit and for the benefit of Merck/MJ) and/or MJ/Merck, with such BMS Manufactured Components, solely for Development and Commercialization purposes in Japan of Cetuximab and Final Product (as may required by MJ/Merck and ImClone for the Japan market during such period), for a period of not more than [**] months post-termination, at a price equal to the sum of (i) [**] of BMS’ Fully Burdened Manufacturing Costs, plus (ii) any [**] that are fairly and reasonably allocable to the manufacture by it, its Affiliates or contractors of Final Product, API or any component of the foregoing and supplied by it under this Section 8.8 for use or Commercialization in Japan on or after such termination date (other than Third Party Payments to the extent that the same would otherwise fall within BMS’s indemnification obligations under Section 13.1 or within an exclusion for which BMS is responsible under any of Sections 13.2(a)-(h)); provided, that, subject to Section 8.3: (A) BMS shall not be obligated to so supply ImClone (except where and to the extent that ImClone or its Affiliates are obligated to supply or manufacture same for Merck/MJ for the Japan market) if the basis for termination pursuant to Section 14.2, 14.3, or 14.4 was a material breach by ImClone or its Affiliates of this Confidential Treatment has been requested by ImClone Systems Incorporated for portions of this document. Agreement, the BMS-ImClone Agreement, or the Merck-ImClone Agreement; and (B) BMS shall not be obligated to so supply Merck (except where and to the extent that Merck or its Affiliates are obligated to supply or manufacture same for ImClone for the Japan market) if the basis for termination pursuan...
By BMS. BMS shall indemnify, defend and hold harmless SGC and its members, officers, managers, employees, agents, affiliates, parents and subsidiaries, and each of the successors and assigns of any of the foregoing (the “SGC Indemnified Parties”), from and against any and all costs and expenses, losses, damages, claims, causes of action and liabilities (including reasonable attorneys’ fees, disbursements and expenses of litigation) incurred by or asserted against the SGC Indemnified Parties (other than as to any claim brought by BMS against SGC) arising from, relating to, or in any way connected with (i) the Outstanding Cards, (ii) BMS’ breach under this Agreement, except to the extent that such shall be caused by the willful misconduct, gross negligence or bad faith of SGC or (iii) any act or omission by BMS which is in violation of any provision of this Agreement or any applicable laws or regulations.
By BMS. BMS hereby grants to Pharmacopeia a perpetual fully paid-up, worldwide non-exclusive, sublicensable license under any Patents Controlled by BMS but not included in the BMS Patent Rights or derived from the BMS Know-How, solely to the extent that the claims of such patent rights are within the scope of the claims of any patent within the BMS Patent Rights (e.g., claims Covering a selection invention within a genus of compounds Covered in the BMS Patent Rights) and that are composition-of-matter claims Covering, as compound(s) per se, one or more Pharmacopeia Excluded Compounds, to make, use (including in activities directed at the research and Development of Licensed Compounds), have made, sell, offer to sell, export and import and otherwise exploit or Commercialize Licensed Compounds and Licensed Products solely for use in the Field. For the avoidance of doubt, the unblocking license granted under this Section 2.8(b) shall not entitle Pharmacopeia to Develop or Commercialize any BMS Excluded Compound or product incorporating a BMS Excluded Compound. Notwithstanding the foregoing, this Section 2.8(b) shall not apply with respect to any Patent for which BMS would incur any obligation (including but not limited to a cash payment obligation) to a Third Party if such Patent were included in this Section 2.8(b), unless and only to the extent that Pharmacopeia agrees in writing to incur such obligation to such Third Party, including to fully reimburse BMS or pay directly to such Third Party any payment obligation.
By BMS. BMS shall indemnify and hold harmless Cytogen and its directors, officers, agents, and employees, from and against any and all Claims made by third parties relating to a material breach of BMS' representations and warranties, or covenants (as such covenants are set forth in Section 6.4 hereof).
