By Manufacturer. Notwithstanding any other provisions of this Agreement, the Company agrees, if so requested after being advised of the basis on which Manufacturer has requested return of the Products to return to the Manufacturer, at the Manufacturer’s expense, any Products that are, or are claimed to be, damaged or defective, or otherwise to dispose of such Products as the Manufacturer may direct. Upon such return, Manufacturer shall Manufacture at no cost to Company such quantity of Products alleged by Manufacturer to be damaged or defective and subject to Section 13.1 hereof reimburse Company for the loss or damage to the API arising from Manufacturer’s negligence, which negligence shall be limited to (i) mishandling or improper storage of the API, excipients, packaging materials, Granulations or containers in which any of the foregoing are stored or transported; (ii) mishandling, improper operation of or failure to maintain equipment; (iii) failure to follow batch records, standard operating procedures, Company’s written instructions or (iv) such other conduct determined to be negligent by a court of competent jurisdiction.
By Manufacturer. Except as may be limited by Section 13.1 of this Agreement, from and after the Effective Date, the Manufacturer shall indemnify, defend and hold harmless the Company and its Affiliates and their respective officers, directors, employees, agents, advisors and shareholders (“Company Indemnified Parties”) from and against any and all suits, claims, judgments, losses, liabilities, costs or expenses (including reasonable attorneys fees) and damages of any kind or character (“Losses”) which any Company Indemnified party may suffer or incur either directly or indirectly or in connection with any suits, claims, demands, actions, causes of action, liabilities, proceedings, investigations, inquiries, injunctions or regulatory actions by a third party to the extent such Losses arise from or arising solely from a breach by the Manufacturer of any of its representations, warranties, agreements, covenants or obligations contained in or made pursuant to this Agreement.
By Manufacturer. (a) Manufacturer hereby agrees to indemnify, defend and hold harmless Hospital and its directors, trustees, officers, shareholders, agents, and employees, including, but not limited to Principal Surgeon and assistants in the Surgery (hereafter collectively referred to as “Hospital Indemnitees”) from and against any and all claims, liabilities, losses, judgments, obligations, damages, costs and expenses (including reasonable attorneys’ fees) (collectively “Claims”) arising out of claims made or brought on behalf of Patient (or his representatives or dependents) for personal injury (including death) that arises from or is attributable to the design, production, manufacture of the Device.
(b) The indemnification obligation set forth in this Section 12.1 shall not apply in the event and to the extent that such Claims arose as a result of (i) the willful misconduct or negligence by Hospital Indemnitees or (ii) the “sole negligence” of one or any of the Hospital Indemnitees.
(c) Hospital Indemnitees shall provide Manufacturer written notice of a Claim no later than fourteen (14) days after the Hospital Indemnitees have notice of such Claim for which indemnification is sought.
(d) Manufacturer shall have sole control over the defense and settlement of a Claim for which indemnification is sought, and Hospital Indemnitees shall cooperate with the Manufacturer and its legal representatives in the investigation and defense of the Claim.
(e) Manufacturer shall act reasonably and in good faith with respect to the defense or settlement of the Claim and will not reach any settlement which requires an admission of fault by a Hospital Indemnitee without that Hospital Indemnitee’s consent.
(f) Hospital Indemnitees may, at their own expense, obtain separate legal counsel.
By Manufacturer. Manufacturer shall indemnify and hold harmless Company and Collaboration Partner and their respective Affiliates and their respective officers, employees and agents (“Company Indemnitees”) from and against any and all Losses to which any Company Indemnitee may become subject as a result of any Claim arising out of or related to (a) Manufacturer’s breach of any representation or warranty made by Manufacturer in this Agreement or (b) the handling, possession, storage or use of Exenatide or Product by or on behalf of Manufacturer prior to delivery of Product by Manufacturer to Company, except to the extent Company is obligated to indemnify Manufacturer with respect to such Losses under Section 10.1 or the Losses are based on the negligence or willful misconduct of any Company Indemnitee. Company Indemnitee shall promptly and in any event within thirty (30) days notify Manufacturer of any known Claim which is the subject of Losses. Company Indemnitees shall fully cooperate with Manufacturer in the defense or settlement of any claim of Losses under this Section 10.2; provided, however, that no Company Indemnitee shall be required to admit fault or responsibility in connection with any settlement. Company Indemnitee shall have the right to select and to obtain representation by separate legal counsel at Company’s own expense.
By Manufacturer. Each Party that manufactures, either directly or through a contract manufacturer, any HIV Cassette Product hereunder (a “Manufacturer”) hereby agrees to indemnify, defend (using counsel selected by the Manufacturer which is reasonably acceptable to the other Party) and hold harmless the other Party, its Affiliates and their respective Distributors and customers, from and against any and all liabilities, losses, (exclusive of lost profits) damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, court costs, and out-of pocket expenses) suffered or incurred which arise or result from: (i) the material breach of any warranty or representation of the Manufacturer contained in this Agreement; (ii) any third party claim of personal injury (including death) or property damage arising in connection with any HIV Cassette Product manufactured by or for the Manufacturer; (iii) any material failure by the Manufacturer to perform any of the covenants, agreements or obligations of the Manufacturer contained in this Agreement; or (iv) any third party claim alleging that the manufacture, use, sale, offer for sale, import or export of the HIV Cassette Products manufactured by or for the Manufacturer infringes the proprietary rights of the third party claimant.
By Manufacturer. Subject to Section 11.3 of this Supply Agreement, from and after the Effective Date, Manufacturer shall indemnify, reimburse, defend and hold harmless Company, its Affiliates, and their respective officers, directors, employees, agents, successors and assigns from and against any and all costs, losses, Liabilities, damages, lawsuits, deficiencies, claims and expenses (including reasonable fees and disbursements of attorneys) (collectively, the "Damages"), incurred in connection with, arising out of, resulting from or incident to (a) any breach of this Supply Agreement by Manufacturer including any breach by the Manufacturer of its representations or warranties or a failure by the Manufacturer to comply or perform any covenants hereunder; and (b) any negligence or willful misconduct by Manufacturer or any subcontractor of Manufacturer with respect to the Manufacture of the Products hereunder.
By Manufacturer. Manufacturer shall indemnify and save Distributor, its officers and shareholders harmless from and against any loss, claim or damage, including reasonable attorney's fees, resulting from any breach of the warranty provided herein by Manufacturer; provided that Distributor shall be entitled to the benefits of such indemnification only to the extent that (I) prompt written notice is given to Manufacturer of any claim, action, suit or proceeding (including any investigation) in respect of which Manufacturer may be called on to indemnify Distributor as aforesaid, (II) Distributor's liability in respect of such loss, claim or damages is not covered by any insurance policy required hereunder or any recovery hereunder is less than the amount (including attorney's fees) of Distributor's liability in respect of such loss, claim or damages, (III) Manufacturer shall have the exclusive right to assume Distributor's defense in any such threatened or actual litigation including the selection of counsel and the hiring of all experts, consultants, and other persons in the course of an actual or threatened litigation, and (IV) Manufacturer shall have sole and exclusive control of the defense of any threatened or actual litigation, including all strategy decisions up through and including the time of trial, as well as all appellate processes, and the terms of settlement of the litigation.
By Manufacturer. Manufacturer will have the right to terminate this Agreement, by written notice by to Buyer, upon the occurrence of any of the following:
i. Buyer files a petition in bankruptcy, or enters into an agreement with its creditors, or applies for or consents to the appointment of a receiver or trustee, or makes an assignment for the benefit of creditors, or becomes subject to involuntary proceedings under any bankruptcy or insolvency law (which proceedings remain undismissed for [**]);
ii. Buyer fails to cure a material breach by it of this Agreement within [**] after receiving written notice from Manufacturer of such breach; or (ii) a force majeure event that will, or continues to, prevent performance (in whole or substantial part) by Buyer of any obligation owed by it under this Agreement for a period of at least [**].
By Manufacturer. From and after the Effective Date, the Manufacturer shall indemnify, defend and hold harmless the Company and its Affiliates and their respective officers, directors, employees, agents, advisors and shareholders from and against any and all Damages arising solely from a breach by the Manufacturer of any of its agreements, covenants or obligations contained in this Supply Agreement; provided, however, that the indemnifications in favor of the Company and its Affiliates contained in this Section 11.1 (A) shall not be effective until the aggregate dollar amount of all Damages indemnified against under Section 9.02(a) of the Asset Purchase Agreement and this Section 11.1 exceeds the Deductible Amount, and then only to the extent such aggregate amount exceeds the Deductible Amount; and (B) shall terminate once the aggregate dollar amount of all Damages indemnified against under Section 9.02(a) of the Asset Purchase Agreement and this Section 11.1 aggregates the Cap Amount, and the Seller shall thereafter have no further obligations or liabilities with respect to any of such Damages.
By Manufacturer. BAXTER shall indemnify and hold harmless AMYLIN and Collaboration Partner and their respective Affiliates and their respective officers, employees and agents (“AMYLIN Indemnitees”) from and against any and all Losses to which any AMYLIN Indemnitee may become subject as a result of any Claim arising out of or related to (a) XXXXXX’x breach of any representation or warranty made by BAXTER in this Agreement or (b) the negligence or willful misconduct of BAXTER in the Production of Product, except in each case to the extent AMYLIN is obligated to indemnify BAXTER with respect to such Losses under Section 14.1 or the Losses are based on the negligence or willful misconduct of any AMYLIN Indemnitee.
