Common use of By Horizon Clause in Contracts

By Horizon. Horizon shall indemnify, defend and hold harmless sanofi-aventis and its officers, directors, agents, affiliates and their respective employees and representatives from and against any and all Third Party Losses that arise out of or are attributable to (a) any claim by a Third Party that the use by sanofi-aventis of the Horizon IP to perform the obligations of sanofi-aventis under this Agreement in compliance with the terms of this Agreement or as directed by Horizon, including, without limitation, the manufacture or testing of the Products, infringes its intellectual property rights; (b) any breach of any representation, warranty or covenant made by Horizon hereunder; (c) any claim by a Third Party with respect to the development, testing, use, marketing, distribution, importation, sale or offer for sale of the Product by or on behalf of Horizon (including, without limitation, product liability claims), subject to Article 16, where applicable, or (d) the gross negligence or willful misconduct of Horizon or any person whose actions or omissions Horizon is legally liable for, except, in each of (a), (b), (c), or (d), to the extent that such Losses are indemnified by sanofi-aventis pursuant to Section 17.1. If a Party becomes aware of any claim or allegation by any Third Party that the performance of any services contemplated by this Agreement infringe such Third Party’s intellectual property rights, it shall promptly inform the other Party, and the Parties shall discuss such matter and a proposed resolution. Either Party may, following such discussion, delay performance of its obligations hereunder pursuant to the force majeure provision in Section 22 pending satisfactory resolution of such matter or terminate this Agreement upon written notice to the other party, provided that neither party shall be permitted to terminate this Agreement as set forth in this sentence in the event it or the other party promptly resolves the matter pursuant to one of the following two sentences. If the use of the Horizon IP in the manufacture or testing of the Product pursuant to this Agreement becomes, or in Horizon’s opinion is likely to become, the subject of an action by a Third Party alleging infringement of such Third Party’s intellectual property rights, Horizon may, at Horizon’s sole election and expense, either (a) procure, in form and manner satisfactory to sanofi-aventis , the right to continue using the relevant Horizon IP to permit sanofi-aventis to perform its obligations under this Agreement without infringing such rights, or (b) replace or modify the Horizon IP or the process for manufacturing or testing the Product with non-infringing intellectual property. If the use of the SAUS IP in the manufacture or testing of the Product pursuant to this Agreement becomes, or in sanofi-aventis’ opinion is likely to become, the subject of an action by a Third Party alleging infringement of such Third Party’s intellectual property rights, sanofi-aventis may, at sanofi-aventis’ sole election and expense, either (a) procure, in form and manner satisfactory to Horizon, the right to continue using the relevant the SAUS IP to permit sanofi-aventis to perform its obligations under this Agreement without infringing such rights, or (b) replace or modify the SAUS IP with non-infringing intellectual property.

By Horizon. Horizon shall indemnify, defend and hold harmless sanofi-aventis US and its officers, directors, agents, affiliates and their respective employees and representatives from and against any and all Third Party Losses that arise out of or are attributable to (a) the failure of the Horizon Materials to meet the specifications for such materials set forth in Schedule 1.7 hereto at the time of delivery to sanofi-aventis US; (b) any claim by a Third Party third party that the use by sanofi-aventis US of the Horizon HZT-501 IP to perform the obligations of sanofi-aventis US under this Agreement in compliance with the terms of this Agreement or as directed by Horizon, including, without limitation, the manufacture or testing of the Products, infringes its intellectual property rights; (bc) any breach of any representation, warranty or covenant made by Horizon hereunder; (cd) any claim by a Third Party with respect to the development, testing, use, use marketing, distribution, importation, sale or offer for sale of the Product by or on behalf of Horizon (including, without limitation, product liability claims), subject to Article 16, where applicable, ) or (de) the gross negligence or willful misconduct or wrongdoing of Horizon or any person whose actions or omissions Horizon is legally liable for, except, in each of (a), (b), (c), or (d), or (e) to the extent that such Losses are indemnified by sanofi-aventis US pursuant to Section 17.16.1. If a Party party becomes aware of any claim or allegation by any Third Party third party that the performance of any services contemplated by this Agreement infringe such Third Partythird party’s intellectual property rights, it shall promptly inform the other Partyparty, and the Parties parties shall discuss such matter and a proposed resolution. Either Party party may, following such discussion, delay performance of its obligations hereunder pursuant to the force majeure provision in Section 22 9.1 pending satisfactory resolution of such matter or terminate this Agreement upon written notice to the other party, provided that neither party shall be permitted to terminate this Agreement as set forth in this sentence in the event it or the other party promptly resolves the matter pursuant to one of the following two sentences. If the use of the Horizon HZT-501 IP in the manufacture or testing of the Product pursuant to this Agreement becomes, or in Horizon’s opinion is likely to become, the subject of an action by a Third Party third party alleging infringement of such Third Partythird party’s intellectual property rights, Horizon may, at Horizon’s ’s’ sole election and expense, either (a) procure, in form and an manner satisfactory to sanofi-aventis US, the right to continue using the relevant Horizon the HZT-501 IP to permit sanofi-aventis US to perform its obligations under this Agreement without infringing such rights, or (b) replace or modify the Horizon HZT-IP or the process for manufacturing or testing the Product with non-infringing intellectual property. If the use of the SAUS IP in the manufacture or testing of the Product pursuant to this Agreement becomes, or in sanofi-aventis’ aventis US’s opinion is likely to become, the subject of an action by a Third Party third party alleging infringement of such Third Partythird party’s intellectual property rights, sanofi-aventis US may, at sanofi-aventis’ aventis US’s sole election and expense, either (a) procure, in form and an manner satisfactory to Horizon, the right to continue using the relevant the SAUS IP to permit sanofi-aventis US to perform its obligations under this Agreement without infringing such rights, or (b) replace or modify the SAUS IP with non-infringing intellectual property.