By Celgene. CELGENE will defend, indemnify and hold harmless ENTREMED, its successors, AFFILIATES and licensors and their employees, agents, officers, trustees, shareholders and directors and each of them (the "ENTREMED Indemnified Parties") from and against any and all THIRD PARTY claims, causes of action and costs (including reasonable attorney's fees) of any nature made or lawsuits or other proceedings filed or otherwise instituted against the ENTREMED Indemnified Parties in connection with any claims, suits or judgments arising out of any theory of product liability concerning the development, testing, manufacture, sale or use of any PRODUCT by CELGENE, its AFFILIATES or its SUBLICENSEES.
9.1.1 CELGENE's indemnification under this Section 9.1 shall not apply to any liability, damage, loss or expense to the extent that it is directly attributable to the negligent activity, reckless misconduct or intentional misconduct of ENTREMED.
9.1.2 Commencing not later than the date of FIRST COMMERCIAL SALE of a PRODUCT, CELGENE shall obtain and carry in full force and effect product liability insurance against any claims, judgments, liabilities and expenses for which it is obligated to indemnify ENTREMED and others under Section 9.1 of this Agreement, in such amounts and with such deductibles as are customary at the time for companies engaged in a similar business, and shall provide ENTREMED with written evidence of such insurance upon request.
By Celgene. Celgene shall, beginning with the exercise of the first Celgene Program Option, maintain at all times thereafter during the Term, and until the later of (a) [*] or (b) [*], commercial general liability insurance from a recognized, creditworthy insurance company, with coverage limits of at least [*] per claim and annual aggregate, before Celgene conducts any Development and/or Commercialization activities with respect to any Celgene Development Compound. Celgene may elect to self-insure all or parts of the limits described above. The commercial general liability insurance shall include coverage for products–completed operations and clinical trial activity. The minimum level of insurance set forth herein shall not be construed to create a limit on Celgene’s liability hereunder. Within ten (10) days following written request from GlobeImmune, Celgene shall furnish to GlobeImmune a certificate of insurance evidencing such coverage as of the date. In the case of a modification or cancellation of such coverage, Celgene shall notify GlobeImmune and promptly provide GlobeImmune with a new certificate of insurance evidencing that Celgene’s coverage meets the requirements of this Section 10.4.1.
By Celgene. If CELGENE assigns or licenses its rights under this Agreement to a SUBLICENSEE or an AFFILIATE, such SUBLICENSEE or AFFILIATE shall be bound by the terms and conditions of this Agreement. CELGENE shall advise ENTREMED of any such assignment or license and provide ENTREMED with a copy of any sublicense within thirty (30) days of execution of such sublicense.
By Celgene. 37 10.3 CELGENE As Guarantor..................................................................37 10.4 Binding Effect........................................................................37 SECTION 11 - FORCE MAJEURE..............................................................................38
By Celgene. If CELGENE or any of its Affiliates or Sublicensees:
(a) commences or otherwise voluntarily determines to participate in (other than as may be necessary or reasonably required to assert a cross-claim or a counter-claim or to respond to a court request or order or administrative law request or order) any action or proceeding (including any patent opposition or re-examination proceeding), challenging or denying the validity of any EPIZYME Patent or Joint Collaboration Patent, in each case that is exclusively licensed to CELGENE hereunder, or any claim of any of the foregoing; or
(b) actively assists any other Person (other than as may be necessary or reasonably required to assert a cross-claim or a counter-claim or to respond to a court request or order or administrative law request or order) in bringing or prosecuting any action or proceeding (including any patent opposition or re-examination proceeding) challenging or denying the validity of any of such Patents, in each case that are licensed exclusively to CELGENE hereunder, or any claim thereof (each activity under the foregoing clause (a) or (b), a “CELGENE Patent Challenge”); then EPIZYME shall have the right to terminate this Agreement with respect to the Selected Target(s), Lapsed Target(s) or Terminated Target(s), as applicable, to which the CELGENE Patent Challenge relates, upon thirty (30) days’ written notice to CELGENE; provided however that, EPIZYME’s right to terminate this Agreement under this Section 12.4 shall not apply to any Affiliate of CELGENE that first becomes an Affiliate of CELGENE after the Effective Date of this Agreement in connection with a Business Acquisition, where such Affiliate of CELGENE was undertaking activities in connection with a CELGENE Patent Challenge prior to such Business Acquisition; provided however that CELGENE causes such CELGENE Patent Challenge to terminate within [**] days after such Business Acquisition. For the avoidance of doubt, an action by CELGENE in accordance with Article 8 to amend claims within a pending patent application of EPIZYME during the course of CELGENE’s Prosecution of such pending patent application or in defense of a Third Party opposition shall not constitute a challenge under this Section 12.4.
By Celgene. 10.1.1 Celgene agrees, at Celgene’s cost and expense, to defend, indemnify and hold harmless Vividion and its Affiliates and their respective directors, officers, employees and agents (the “Vividion Indemnified Parties”) from and against any Damages arising out of any Claim relating to:
(a) any breach by Celgene of any of its representations, warranties or obligations pursuant to this Agreement; or
(b) the gross negligence or willful misconduct of Celgene.
10.1.2 In the event of any such Claim against any Vividion Indemnified Party by any Third Party, Vividion shall promptly, and in any event within [***] Business Days, notify Celgene in writing of the Claim. Celgene shall have the right, exercisable by notice to Vividion within [***] Business Days after receipt of notice from Vividion of the Claim, to assume direction and control of the defense, litigation, settlement, appeal or other disposition of the Claim (provided that such Claim is solely for monetary damages and Celgene agrees to pay all Damages relating to such matter, as evidenced in a written confirmation delivered by Celgene to Vividion) with counsel selected by Celgene and reasonably acceptable to Vividion; provided that the failure to provide timely notice of a Claim shall not limit a Vividion Indemnified Party’s right for indemnification hereunder except to the extent such failure results in actual prejudice to Celgene. The Vividion Indemnified Parties shall cooperate with Celgene and may, at their option and expense, be separately represented in any such action or proceeding. Celgene shall not be liable for any litigation costs or expenses incurred by the Vividion Indemnified Parties without Celgene’s prior written authorization. In addition, Celgene shall not be responsible for the indemnification or defense of any Vividion Indemnified Party to the extent arising from any negligent or intentional misconduct by any Vividion Indemnified Party or the breach by Vividion of any representation, obligation or warranty under this Agreement, or any Claims compromised or settled without its prior written consent. Each Party shall use reasonable efforts to mitigate Damages indemnified under this Section 10.1.
By Celgene. Celgene agrees, at Celgene’s cost and expense, to defend, indemnify and hold harmless Agios and its Affiliates and their respective directors, officers, employees and agents (the “Agios Indemnified Parties”) from and against any losses, costs, damages, fees or expenses arising out of any Third Party claim relating to:
By Celgene. Celgene shall have the right to terminate this Agreement, on sixty (60) days written notice to Penn, if Penn fails to deliver to Celgene such quantities of *** - indicates material omitted pursuant to a Confidential Treatment Request and filed separately with the Securities and Exchange Commission. conforming Commercial Products as Celgene orders pursuant to clause 2.6.4 above (subject to clause 2.6.3 above) for any two (2) out of four (4) consecutive calendar quarters.
By Celgene. Celgene represents and warrants that it has the lawful right and authority to enter into this Agreement without the consent or approval of another person or entity.
By Celgene. Celgene warrants to CMCC that it has the lawful right and authority to enter into this Agreement without the consent or approval of another person or entity.
