Common use of Certain Claims Clause in Contracts

Certain Claims. (a) Alexion and XOMA each agrees to indemnify and hold harmless the other Party and its Affiliates and their respective employees, agents, officers, directors and permitted assigns (such Party’s “Indemnified Group”) from and against any claims, judgments, expenses (including reasonable attorneys’ fees), damages and awards (collectively a “Claim”) arising out of or resulting from (i) its negligence or misconduct in regard to any Product and (ii) a breach of any of its representations or warranties hereunder, except to the extent that such Claim arises out of or results from the negligence or misconduct of a Party seeking to be indemnified and held harmless or the negligence or misconduct of a member of such Party’s Indemnified Group. An indemnified Party shall promptly give notice to the indemnifying Party of any information from which it should reasonably conclude an incident has occurred that could give rise to a Claim, and in the event a Claim is made or a suit is brought, all indemnified parties shall assist the indemnifying Party and cooperate in the gathering of information with respect to the time, place, and circumstances and in obtaining the names and addresses of any injured parties and available witnesses. The failure to give the notice referred to in the preceding sentence shall not relieve a Party of its indemnification obligations, except to the extent such failure prejudices the ability of the indemnifying Party to defend against such claim. No indemnified Party shall, except at its own cost, voluntarily make any payment or incur any expense in connection with any such Claim or suit without the prior written consent of the indemnifying Party. Each indemnified Party shall permit the indemnifying Party to assume the defense and settlement of any Claim. The obligations set forth in this Section 14.1(a) shall survive the expiration or termination of this Agreement. (b) In the event of any Claim, including Claims related to products liability, arising out of or resulting from the Development, Commercialization, Manufacture, sale or clinical use of a Product but not arising out of or resulting from either Party’s negligence or misconduct, such Claim shall be shared 70 (Alexion)/30 (XOMA) between the Parties (unless such Claim relates only to a particular Product in a particular Future Indication as to which one Party has Opted Out and not Opted Back In, in which case all such costs shall be borne by the other Party). Each Party shall promptly give notice to the other Party of any information from which it reasonably concludes an incident has occurred that could give rise to a Claim covered by this Section 14.1(b), and in the event such a Claim is made or a suit is brought, each Party shall assist the other Party and shall cooperate in the gathering of information with respect to the time, place, and circumstances, in obtaining the names and addresses of any injured parties and available witnesses and with all reasonable requests of its and the other Party’s insurer or insurers. The failure to give the notice referred to in the preceding sentence shall not relieve a Party of its cost sharing obligations, except to the extent such failure prejudices the ability of the Party to defend against such claim. Each Party shall be entitled to utilize its own counsel in connection with any such Claim and, upon consent (not to be unreasonably withheld) by the other Party to the retention of such counsel, the fees and expenses of such counsel shall be shared as provided above. Alexion shall, and XOMA shall permit Alexion to, assume the defense and settlement of any such Claim (unless such Claim relates only to a particular Product in a particular Future Indication as to which Alexion has Opted Out and not Opted Back In, in which case XOMA shall assume such defense); provided that XOMA retains the right, at its own expense, to be represented by its own counsel in connection with any such Claim. The obligations set forth in this Section 14.1(b) shall survive the expiration or termination of this Agreement. (c) The Parties acknowledge that drug development, manufacturing and commercialization is risky and success is uncertain. Neither Party shall be liable to the other for consequential, punitive or other indirect damages for whatever reason in connection with performance or non-performance of its obligations and activities under this Agreement.

Certain Claims. (a) Alexion and XOMA each agrees to indemnify and hold harmless the other Party and its Affiliates and their respective employees, agents, officers, directors and permitted assigns (such Party’s “'s "Indemnified Group”") from and against any claims, judgments, expenses (including reasonable attorneys’ ' fees), damages and awards (collectively a “"Claim”") arising out of or resulting from (i) its negligence or misconduct in regard to any Product and (ii) a breach of any of its representations or warranties hereunder, except to the extent that such Claim arises out of or results from the negligence or misconduct of a Party seeking to be indemnified and held harmless or the negligence or misconduct of a member of such Party’s 's Indemnified Group. An indemnified Party shall promptly give notice to the indemnifying Party of any information from which it should reasonably conclude an incident has occurred that could give rise to a Claim, and in the event a Claim is made or a suit is brought, all indemnified parties shall assist the indemnifying Party and cooperate in the gathering of information with respect to the time, place, and circumstances and in obtaining the names and addresses of any injured parties and available witnesses. The failure to give the notice referred to in the preceding sentence shall not relieve a Party of its indemnification obligations, except to the extent such failure prejudices the ability of the indemnifying Party to defend against such claim. No indemnified Party shall, except at its own cost, voluntarily make any payment or incur any expense in connection with any such Claim or suit without the prior written consent of the indemnifying Party. Each indemnified Party shall permit the indemnifying Party to assume the defense and settlement of any Claim. The obligations set forth in this Section 14.1(a) shall survive the expiration or termination of this Agreement. (b) In the event of any Claim, including Claims related to products liability, arising out of or resulting from the Development, Commercialization, Manufacture, sale or clinical use of a Product but not arising out of or resulting from either Party’s 's negligence or misconduct, such Claim shall be shared 70 (Alexion)/30 (XOMA) between the Parties (unless such Claim relates only to a particular Product in a particular Future Indication as to which one Party has Opted Out and not Opted Back In, in which case all such costs shall be borne by the other Party). Each Party shall promptly give notice to the other Party of any information from which it reasonably concludes an incident has occurred that could give rise to a Claim covered by this Section 14.1(b), and in the event such a Claim is made or a suit is brought, each Party shall assist the other Party and shall cooperate in the gathering of information with respect to the time, place, and circumstances, in obtaining the names and addresses of any injured parties and available witnesses and with all reasonable requests of its and the other Party’s 's insurer or insurers. The failure to give the notice referred to in the preceding sentence shall not relieve a Party of its cost sharing obligations, except to the extent such failure prejudices the ability of the Party to defend against such claim. Each Party shall be entitled to utilize its own counsel in connection with any such Claim and, upon consent (not to be unreasonably withheld) by the other Party to the retention of such counsel, the fees and expenses of such counsel shall be shared as provided above. Alexion shall, and XOMA shall permit Alexion to, assume the defense and settlement of any such Claim (unless such Claim relates only to a particular Product in a particular Future Indication as to which Alexion has Opted Out and not Opted Back In, in which case XOMA shall assume such defense); provided that XOMA retains the right, at its own expense, to be represented by its own counsel in connection with any such Claim. The obligations set forth in this Section 14.1(b) shall survive the expiration or termination of this Agreement. (c) The Parties acknowledge that drug development, manufacturing and commercialization is risky and success is uncertain. Neither Party shall be liable to the other for consequential, punitive or other indirect damages for whatever reason in connection with performance or non-performance of its obligations and activities under this Agreement.

Certain Claims. (a) Alexion and XOMA each Each Party agrees to indemnify and hold harmless the other Party and its Affiliates and their respective employees, agents, officers, directors and permitted assigns (such Party’s “'s "Indemnified Group”") from and against any claims, judgments, expenses (including reasonable attorneys’ ' fees), damages and awards (collectively collectively, a “"Claim”") arising out of or resulting from (i) its negligence or misconduct in regard to any Product and (ii) a breach of any of its representations or warranties hereunder, except to the extent that such Claim arises out of or results from the negligence or misconduct of a Party seeking to be indemnified and held harmless or the negligence or misconduct of a member of such Party’s 's Indemnified Group. An indemnified Party shall promptly give notice to the indemnifying Party of any information from which it should reasonably conclude an incident has occurred that could give rise to a Claim, and in the event a Claim is made or a suit is brought, all indemnified parties shall assist the indemnifying Party and cooperate in the gathering of information with respect to the time, place, and circumstances and in obtaining the names and addresses of any injured parties and available witnesses. The failure to give the notice referred to in the preceding sentence shall not relieve a Party of its indemnification obligations, except to the extent such failure prejudices the ability of the indemnifying Party to defend against such claim. No indemnified Party shall, except at its own cost, voluntarily make any payment or incur any expense in connection with any such Claim or suit without the prior written consent of the indemnifying Party. Each indemnified Party shall permit the indemnifying Party to assume the defense and settlement of any Claim. The obligations set forth in this Section 14.1(a15.1(a) shall survive the expiration or termination of this Agreement. (b) In the event of any ClaimClaim which is not the subject of the indemnities set forth in paragraph (a) above, including Claims related to products liability, arising out of or resulting from the Development, Commercialization, Manufacture, sale or clinical use of a Product but not arising out of or resulting from either Party’s 's negligence or misconduct, such Claim shall be shared 70 (Alexion)/30 (XOMA) between the Parties [*] (unless such Claim relates only to a particular Product in a particular Future Indication Region as to which one Party has Opted Out and not Opted Back In, in which case all such costs shall be borne by the other Party[*]). Each Party shall promptly give notice to the other Party of any information from which it reasonably concludes an incident has occurred that could give rise to a Claim covered by this Section 14.1(b15.1(b), and in the event such a Claim is made or a suit is brought, each Party shall assist the other Party and shall cooperate in the gathering of information with respect to the time, place, and circumstances, in obtaining the names and addresses of any injured parties and available witnesses and with all reasonable requests of its and the other Party’s 's insurer or insurers. The failure to give the notice referred to in the preceding sentence shall not relieve a Party of its cost sharing obligations, except to the extent such failure prejudices the ability of the Party to defend against such claim. Each Absent a conflict of interest between the Parties, each Party shall be entitled to utilize its own counsel in connection with any such Claim and, upon consent (not to be unreasonably withheld) by at its own cost and expense; in the other Party to the retention event of such counsela conflict, each Party shall be entitled to utilize its own counsel and the fees and expenses of each such counsel shall be shared as provided above. Alexion [*] shall, and XOMA [*] shall permit Alexion [*] to, assume the defense and settlement of any such Claim (unless such Claim relates only to a particular Product in a particular Future Indication Region as to which Alexion [*] has Opted Out and not Opted Back In, in which case XOMA [*] shall assume such defense); provided that XOMA [*] retains the right, at its own expense, to be represented by its own counsel in connection with any such Claim. The obligations set forth in this Section 14.1(b15.1(b) shall survive the expiration or termination of this Agreement. (c) The Parties acknowledge that drug development, manufacturing and commercialization is risky and success is uncertain. Neither Party shall be liable to the other for consequential, punitive or other indirect damages for whatever reason in connection with performance or non-performance of its obligations and activities under this Agreement.

Certain Claims. (a) Alexion and XOMA each agrees to indemnify and hold harmless the other Party and its Affiliates and their respective employees, agents, officers, directors and permitted assigns (such Party’s “'s "Indemnified Group”") from and against any claims, judgments, expenses (including reasonable attorneys’ ' fees), damages and awards (collectively a “"Claim”") arising out of or resulting from (i) its negligence or misconduct in regard to any Product and (ii) a breach of any of its representations or warranties hereunder, except to the extent that such Claim arises out of or results from the negligence or misconduct of a Party seeking to be indemnified and held harmless or the negligence or misconduct of a member of such Party’s 's Indemnified Group. An indemnified Party shall promptly give notice to the indemnifying Party of any information from which it should reasonably conclude an incident has occurred that could give rise to a Claim, and in the event a Claim is made or a suit is brought, all indemnified parties shall assist the indemnifying Party and cooperate in the gathering of information with respect to the time, place, and circumstances and in obtaining the names and addresses of any injured parties and available witnesses. The failure to give the notice referred to in the preceding sentence shall not relieve a Party of its indemnification obligations, except to the extent such failure prejudices the ability of the indemnifying Party to defend against such claim. No indemnified Party shall, except at its own cost, voluntarily make any payment or incur any expense in connection with any such Claim or suit without the prior written consent of the indemnifying Party. Each indemnified Party shall permit the indemnifying Party to assume the defense and settlement of any Claim. The obligations set forth in this Section 14.1(a) shall survive the expiration or termination of this Agreement. (b) In the event of any Claim, including Claims related to products liability, arising out of or resulting from the Development, Commercialization, Manufacture, sale or clinical use of a Product but not arising out of or resulting from either Party’s 's negligence or misconduct, such Claim shall be shared 70 (Alexion)/30 (XOMA) between the Parties (unless such Claim relates only to a particular Product in a particular Future Indication as to which one Party has Opted Out and not Opted Back In, in which case all such costs shall be borne by the other Party). Each Party shall promptly give notice to the other Party of any information from which it reasonably concludes an incident has occurred that could give rise to a Claim covered by this Section 14.1(b), and in the event such a Claim is made or a suit is brought, each Party shall assist the other Party and shall cooperate in the gathering of information with respect to the time, place, and circumstances, in obtaining the names and addresses of any injured parties and available witnesses and with all reasonable requests of its and the other Party’s 's insurer or insurers. The failure to give the notice referred to in the preceding sentence shall not relieve a Party of its cost sharing obligations, except to the extent such failure prejudices the ability of the Party to defend against such claim. Each Party shall be entitled to utilize its own counsel in connection with any such Claim and, upon consent (not to be unreasonably withheld) by the other Party to the retention of such counsel, the fees and expenses of such counsel shall be shared as provided above. Alexion shall, and XOMA shall permit Alexion to, assume the defense and settlement of any such Claim (unless such Claim relates only to a particular Product in a particular Future Indication Indica- tion as to which Alexion has Opted Out and not Opted Back In, in which case XOMA shall assume such defense); provided that XOMA retains the right, at its own expense, to be represented by its own counsel in connection with any such Claim. The obligations set forth in this Section 14.1(b) shall survive the expiration or termination of this Agreement. (c) The Parties acknowledge that drug development, manufacturing and commercialization is risky and success is uncertain. Neither Party shall be liable to the other for consequential, punitive or other indirect damages for whatever reason in connection with performance or non-performance of its obligations and activities under this Agreement.

Certain Claims. (a) Alexion and XOMA each agrees to indemnify and hold harmless Promptly after receipt by an indemnified party of written notice of the commencement of any investigation, claim, proceeding or other Party and its Affiliates and their respective employees, agents, officers, directors and permitted assigns action in respect of which indemnity may be sought from the indemnitor (such Party’s “Indemnified Group”) from and against any claims, judgments, expenses (including reasonable attorneys’ feesan "Action"), damages and awards (collectively a “Claim”) arising out such indemnified party shall notify the indemnitor in writing of or resulting the commencement of such Action; but the omission to so notify the indemnitor shall not relieve it from (i) its negligence or misconduct in regard any liability that it may otherwise have to any Product and (ii) a breach of any of its representations or warranties hereundersuch indemnified party, except to the extent that such Claim arises out of the indemnitor is materially prejudiced or results from the negligence forfeits substantive rights or misconduct of defenses as a Party seeking to be indemnified and held harmless or the negligence or misconduct of a member result of such Party’s Indemnified Groupfailure. An In connection with any Action in which the indemnitor and any indemnified Party party are parties, the indemnitor shall promptly give notice be entitled to participate therein, and may assume the defense thereof by so notifying the indemnified party and agreeing in writing to defend the Action with counsel reasonably satisfactory to the indemnified party and be responsible for any judgments or settlements resulting therefrom. If the indemnifying Party party advises the indemnified party in writing that it is assuming the defense of such Action and responsibility for any judgments or settlements resulting therefrom, notwithstanding the assumption of the defense of any information from which it should reasonably conclude an incident has occurred that could give rise such Action by the indemnitor, each indemnified party shall have the right to a Claimemploy separate counsel and to participate in the defense of such Action, and the indemnitor shall bear the reasonable fees, costs and expenses of such separate counsel to such indemnified party if: (i) the indemnitor shall have agreed to the retention of such separate counsel, (ii) the indemnified party shall have reasonably concluded that representation of such indemnified party and the indemnitor by the same counsel would be inappropriate due to actual or, as reasonably determined by such indemnified party's counsel, potential differing interests between them in the event a Claim is made conduct of the defense of such Action, or a suit is brought, all if there may be legal defenses available to such indemnified parties shall assist the indemnifying Party and cooperate in the gathering of information with respect party that are different from or additional to those available to the timeindemnitor, place, and circumstances and in obtaining or (iii) the names and addresses indemnitor shall have failed to employ counsel reasonably satisfactory to such indemnified party within a reasonable period of any injured parties and available witnesses. The failure to give time after notice of the notice referred to in the preceding sentence institution of such Action or shall not relieve a Party be diligently defending such action. If such indemnified party retains separate counsel in cases other than as described in clauses (i), (ii) or (iii) above, such counsel shall be retained at the expense of its indemnification obligationssuch indemnified party. Except as provided above, except to it is hereby agreed and understood that the extent such failure prejudices the ability of the indemnifying Party to defend against such claim. No indemnified Party shallindemnitor shall not, except at its own cost, voluntarily make any payment or incur any expense in connection with any Action in the same jurisdiction, be liable for the fees and expenses of more than one counsel (plus appropriate local counsel) for all such Claim or suit indemnified parties. The party from whom indemnification is sought shall not, without the prior written consent of the indemnifying Party. Each indemnified Party party seeking indemnification (which consent shall permit the indemnifying Party not be unreasonably withheld), settle or compromise any claim or consent to assume the defense and settlement entry of any Claim. The obligations set forth in this Section 14.1(a) shall survive judgment that does not include an unconditional release of the expiration or termination of this Agreementparty seeking indemnification from all liabilities with respect to such claim. (b) In the event one party hereunder should have a claim for indemnification that does not involve a claim or demand being asserted by a third party, the party seeking indemnification shall promptly send notice of any Claimsuch claim to the party from which indemnification is sought. If the latter does not dispute such claim, including Claims related subject to products liabilitySection 5.7 hereof, arising out of or resulting from the Development, Commercialization, Manufacture, sale or clinical use of a Product but not arising out of or resulting from either Party’s negligence or misconductlatter shall pay such claim in full within 10 business days. If the latter disputes such claim, such Claim dispute shall be shared 70 (Alexion)/30 (XOMA) between the Parties (unless such Claim relates only to a particular Product in a particular Future Indication as to which one Party has Opted Out and not Opted Back In, in which case all such costs shall be borne resolved by the other Party). Each Party shall promptly give notice to the other Party of any information from which it reasonably concludes an incident has occurred that could give rise to a Claim covered by this Section 14.1(b), and in the event such a Claim is made or a suit is brought, each Party shall assist the other Party and shall cooperate in the gathering of information with respect to the time, place, and circumstances, in obtaining the names and addresses of any injured parties and available witnesses and with all reasonable requests of its and the other Party’s insurer or insurers. The failure to give the notice referred to in the preceding sentence shall not relieve a Party of its cost sharing obligations, except to the extent such failure prejudices the ability agreement of the Party to defend against such claim. Each Party shall be entitled to utilize its own counsel parties or in connection with any such Claim and, upon consent (not to be unreasonably withheld) by the other Party to the retention of such counsel, the fees and expenses of such counsel shall be shared as provided above. Alexion shall, and XOMA shall permit Alexion to, assume the defense and settlement of any such Claim (unless such Claim relates only to a particular Product in a particular Future Indication as to which Alexion has Opted Out and not Opted Back In, in which case XOMA shall assume such defense); provided that XOMA retains the right, at its own expense, to be represented by its own counsel in connection with any such Claim. The obligations set forth in this Section 14.1(b) shall survive the expiration or termination of this Agreementmanner available under law. (c) The Parties acknowledge that drug development, manufacturing indemnified party shall make available to the indemnifying party or its representatives all records and commercialization is risky other materials reasonably required by it for use in contesting any third party claim and success is uncertain. Neither Party shall cooperate with the indemnifying party in the defense of all such claims; all of the foregoing shall be liable to the other for consequential, punitive or other indirect damages for whatever reason in connection with performance or non-performance of its obligations and activities under this Agreementprovided on a commercially reasonable basis.

Certain Claims. Promptly after receipt by an indemnified party of written notice of the commencement of any investigation, claim, proceeding or other action in respect of which indemnity may be sought from the indemnitor (a) Alexion and XOMA each agrees to indemnify and hold harmless the other Party and its Affiliates and their respective employees, agents, officers, directors and permitted assigns (such Party’s “Indemnified Group”) from and against any claims, judgments, expenses (including reasonable attorneys’ feesan "ACTION"), damages and awards (collectively a “Claim”) arising out such indemnified party shall notify the indemnitor in writing of or resulting the commencement of such Action; but the omission to so notify the indemnitor shall not relieve it from (i) its negligence or misconduct in regard any liability that it may otherwise have to any Product and (ii) a breach of any of its representations or warranties hereundersuch indemnified party, except to the extent that such Claim arises out of the indemnitor is materially prejudiced or results from the negligence forfeits substantive rights or misconduct of defenses as a Party seeking to be indemnified and held harmless or the negligence or misconduct of a member result of such Party’s Indemnified Groupfailure. An indemnified Party shall promptly give notice to the indemnifying Party of any information from which it should reasonably conclude an incident has occurred that could give rise to a Claim, and in the event a Claim is made or a suit is brought, all indemnified parties shall assist the indemnifying Party and cooperate in the gathering of information with respect to the time, place, and circumstances and in obtaining the names and addresses of any injured parties and available witnesses. The failure to give the notice referred to in the preceding sentence shall not relieve a Party of its indemnification obligations, except to the extent such failure prejudices the ability of the indemnifying Party to defend against such claim. No indemnified Party shall, except at its own cost, voluntarily make any payment or incur any expense in In connection with any such Claim or suit without the prior written consent of the indemnifying Party. Each indemnified Party shall permit the indemnifying Party to assume the defense and settlement of any Claim. The obligations set forth in this Section 14.1(a) shall survive the expiration or termination of this Agreement. (b) In the event of any Claim, including Claims related to products liability, arising out of or resulting from the Development, Commercialization, Manufacture, sale or clinical use of a Product but not arising out of or resulting from either Party’s negligence or misconduct, such Claim shall be shared 70 (Alexion)/30 (XOMA) between the Parties (unless such Claim relates only to a particular Product in a particular Future Indication as to which one Party has Opted Out and not Opted Back In, Action in which case all such costs shall be borne by the other Party). Each Party shall promptly give notice to indemnitor and any indemnified party are parties, the other Party of any information from which it reasonably concludes an incident has occurred that could give rise to a Claim covered by this Section 14.1(b), and in the event such a Claim is made or a suit is brought, each Party shall assist the other Party and shall cooperate in the gathering of information with respect to the time, place, and circumstances, in obtaining the names and addresses of any injured parties and available witnesses and with all reasonable requests of its and the other Party’s insurer or insurers. The failure to give the notice referred to in the preceding sentence shall not relieve a Party of its cost sharing obligations, except to the extent such failure prejudices the ability of the Party to defend against such claim. Each Party indemnitor shall be entitled to utilize its own participate therein, and may assume the defense thereof by so notifying the indemnified party and agreeing in writing to defend the Action with counsel reasonably satisfactory to the indemnified party and be responsible for any judgments or settlements resulting therefrom. If the indemnifying party advises the indemnified party in connection with writing that it is assuming the defense of such Action and responsibility for any judgments or settlements resulting therefrom, notwithstanding the assumption of the defense of any such Claim and, upon consent (not to be unreasonably withheld) Action by the other Party indemnitor, each indemnified party shall have the right to employ separate counsel and to participate in the defense of such Action, and the indemnitor shall bear the reasonable fees, costs and expenses of such separate counsel to such indemnified party if: (i) the indemnitor shall have agreed to the retention of such separate counsel, (ii) the indemnified party shall have reasonably concluded that representation of such indemnified party and the indemnitor by the same counsel would be inappropriate due to actual or, as reasonably determined by such indemnified party's counsel, potential differing interests between them in the conduct of the defense of such Action, or if there may be legal defenses available to such indemnified party that are different from or additional to those available to the indemnitor, or (iii) the indemnitor shall have failed to employ counsel reasonably satisfactory to such indemnified party within a reasonable period of time after notice of the institution of such Action or shall not be diligently defending such action. If such indemnified party retains separate counsel in cases other than as described in clauses (i), (ii) or (iii) above, such counsel shall be retained at the expense of such indemnified party. Except as provided above, it is hereby agreed and understood that the indemnitor shall not, in connection with any Action in the same jurisdiction, be liable for the fees and expenses of more than one counsel (plus appropriate local counsel) for all such counsel indemnified parties. The party from whom indemnification is sought shall not, without the written consent of the party seeking indemnification (which consent shall not be unreasonably withheld), settle or compromise any claim or consent to entry of any judgment that does not include an unconditional release of the party seeking indemnification from all liabilities with respect to such claim. In the event one party hereunder should have a claim for indemnification that does not involve a claim or demand being asserted by a third party, the party seeking indemnification shall promptly send notice of such claim to the party from which indemnification is sought. If the latter does not dispute such claim, the latter shall pay such claim in full within 10 business days. If the latter disputes such claim, such dispute shall be shared as provided above. Alexion shall, and XOMA shall permit Alexion to, assume resolved by agreement of the defense and settlement of parties or in any such Claim (unless such Claim relates only to a particular Product in a particular Future Indication as to which Alexion has Opted Out and not Opted Back In, in which case XOMA shall assume such defense); provided that XOMA retains the right, at its own expense, to be represented by its own counsel in connection with any such Claim. The obligations set forth in this Section 14.1(b) shall survive the expiration or termination of this Agreementother manner available under law. (c) The Parties acknowledge that drug development, manufacturing and commercialization is risky and success is uncertain. Neither Party shall be liable to the other for consequential, punitive or other indirect damages for whatever reason in connection with performance or non-performance of its obligations and activities under this Agreement.

Certain Claims. (a) Alexion and XOMA each agrees to indemnify and hold harmless Promptly after receipt by an Indemnified Person of written notice of the commencement of any investigation, claim, proceeding or other Party and its Affiliates and their respective employees, agents, officers, directors and permitted assigns action in respect of which indemnity may be sought (such Party’s “Indemnified Group”an "Action") from and against any claimsother party obligated to provide indemnification pursuant to Section 5.1 or 5.2 hereof (each, judgments, expenses (including reasonable attorneys’ feesan "Indemnifying Party"), damages and awards (collectively a “Claim”) arising out such Indemnified Person shall notify the Indemnifying Party in writing of or resulting the commencement of such Action; but the omission to so notify the Indemnifying Party shall not relieve it from (i) its negligence or misconduct in regard any liability that it may otherwise have to any Product and (ii) a breach of any of its representations or warranties hereundersuch Indemnified Person, except to the extent that such Claim arises out of the Indemnifying Party is materially prejudiced or results from the negligence forfeits substantive rights or misconduct of defenses as a Party seeking to be indemnified and held harmless or the negligence or misconduct of a member result of such Party’s failure. In connection with any Action in which the Indemnifying Party and any Indemnified Group. An indemnified Person are parties, the Indemnifying Party shall promptly give notice be entitled to participate therein, and may assume the defense thereof by so notifying the Indemnified Person and agreeing in writing to defend the Action with counsel reasonably satisfactory to the Indemnified Person and be responsible for any judgments or settlements resulting therefrom. If the indemnifying Party party advises the Indemnified Person in writing that it is assuming the defense of such Action and responsibility for any judgments or settlements resulting therefrom, notwithstanding the assumption of the defense of any information from which it should reasonably conclude an incident has occurred that could give rise such Action by the Indemnifying Party, each Indemnified Person shall have the right to a Claimemploy separate counsel and to participate in the defense of such Action, and the Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel to such Indemnified Person if: (i) the Indemnifying Party shall have agreed to the retention of such separate counsel, (ii) the Indemnified Person shall have reasonably concluded that representation of such Indemnified Person and the Indemnifying Party by the same counsel would be inappropriate due to actual or, as reasonably determined by such Indemnified Person's counsel, potential differing interests between them in the event a Claim is made conduct of the defense of such Action, or a suit is brought, all indemnified parties shall assist the indemnifying Party and cooperate in the gathering of information with respect if there may be legal defenses available to such Indemnified Person that are different from or additional to those available to the timeIndemnifying Party, place, and circumstances and in obtaining or (iii) the names and addresses Indemnifying Party shall have failed to employ counsel reasonably satisfactory to such Indemnified Person within a reasonable period of any injured parties and available witnesses. The failure to give time after notice of the notice referred to in the preceding sentence institution of such Action or shall not relieve a be diligently defending such action. If such Indemnified Person retains separate counsel in cases other than as described in clauses (i), (ii) or (iii) above, such counsel shall be retained at the expense of such Indemnified Person. Except as provided above, it is hereby agreed and understood that the Indemnifying Party of its indemnification obligationsshall not, except to the extent such failure prejudices the ability of the indemnifying Party to defend against such claim. No indemnified Party shall, except at its own cost, voluntarily make any payment or incur any expense in connection with any Action in the same jurisdiction, be liable for the fees and expenses of more than one counsel (plus appropriate local counsel) for all such Claim or suit Indemnified Persons. The party from whom indemnification is sought shall not, without the prior written consent of the indemnifying Party. Each indemnified Party party seeking indemnification (which consent shall permit the indemnifying Party not be unreasonably withheld), settle or compromise any claim or consent to assume the defense and settlement entry of any Claim. The obligations set forth in this Section 14.1(a) shall survive judgment that does not include an unconditional release of the expiration or termination of this Agreement.party seeking indemnification from all liabilities with respect to such claim.(a) (b) In the event a person or entity should have a claim for indemnification hereunder that does not involve a claim or demand being asserted by a third party, the party seeking indemnification shall promptly send notice of any Claimsuch claim to the party from which indemnification is sought. If the latter does not dispute such claim, including Claims related to products liability, arising out of or resulting from the Development, Commercialization, Manufacture, sale or clinical use of a Product but not arising out of or resulting from either Party’s negligence or misconductlatter shall pay such claim in full within 10 business days. If the latter disputes such claim, such Claim dispute shall be shared 70 (Alexion)/30 (XOMA) between the Parties (unless such Claim relates only to a particular Product in a particular Future Indication as to which one Party has Opted Out and not Opted Back In, in which case all such costs shall be borne resolved by the other Party). Each Party shall promptly give notice to the other Party of any information from which it reasonably concludes an incident has occurred that could give rise to a Claim covered by this Section 14.1(b), and in the event such a Claim is made or a suit is brought, each Party shall assist the other Party and shall cooperate in the gathering of information with respect to the time, place, and circumstances, in obtaining the names and addresses of any injured parties and available witnesses and with all reasonable requests of its and the other Party’s insurer or insurers. The failure to give the notice referred to in the preceding sentence shall not relieve a Party of its cost sharing obligations, except to the extent such failure prejudices the ability agreement of the Party to defend against such claim. Each Party shall be entitled to utilize its own counsel parties or in connection with any such Claim and, upon consent (not to be unreasonably withheld) by the other Party to the retention of such counsel, the fees and expenses of such counsel shall be shared as provided above. Alexion shall, and XOMA shall permit Alexion to, assume the defense and settlement of any such Claim (unless such Claim relates only to a particular Product in a particular Future Indication as to which Alexion has Opted Out and not Opted Back In, in which case XOMA shall assume such defense); provided that XOMA retains the right, at its own expense, to be represented by its own counsel in connection with any such Claim. The obligations set forth in this Section 14.1(b) shall survive the expiration or termination of this Agreementmanner available under law. (c) The Parties acknowledge that drug development, manufacturing Indemnified Person shall make available to the Indemnifying Party or its representatives all records and commercialization is risky other materials reasonably required by it for use in contesting any third party claim and success is uncertain. Neither Party shall cooperate with the indemnifying party in the defense of all such claims; all of the foregoing shall be liable to the other for consequential, punitive or other indirect damages for whatever reason in connection with performance or non-performance of its obligations and activities under this Agreementprovided on a commercially reasonable basis.