Common use of Indemnification by BMS Clause in Contracts

Indemnification by BMS. BMS shall indemnify, defend, and hold FivePrime, its Affiliates and its and their respective agents, employees, officers and directors (each a “FivePrime Indemnitee”) harmless from and against any and all Third Party claims, suits, actions, demands, judgments, liabilities, expenses, or losses, including reasonable legal expenses and attorneys’ fees (collectively, “FivePrime Losses”) to which any FivePrime Indemnitee may become subject to the extent such FivePrime Losses are directly or indirectly caused by or otherwise arise out of or in connection with: (i) the performance by BMS (or its Affiliates, sublicensees or subcontractors) of BMS’s obligations under this Agreement (except to the extent directed by FivePrime); (ii) the practice by BMS, its sublicensees, or its Affiliates of any license or sublicense granted to BMS hereunder, through the manufacture, use, sale, offer for sale or importation of a Collaboration Target, Compound or Product or otherwise; (iii) the manufacture, use, handling, storage, importation, exportation, sale, or other disposition by BMS, its Affiliates, sublicensees, subcontractors or distributors of Compound(s) or Product(s); (iv) the use by a Third Party of any Compound or Product sold or otherwise provided by BMS, its Affiliates, sublicensees, subcontractors or distributors; (v) a material breach by BMS or its Affiliates of any covenant, representation, warranty or other agreement made by BMS in this Agreement; or (vi) the negligence or willful misconduct by BMS, its Affiliates, sublicensees, subcontractors or distributors; except, in each case, to the extent such FivePrime Losses result from: (a) the *** INDICATES MATERIAL THAT WAS OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT WAS REQUESTED. ALL SUCH OMITTED MATERIAL WAS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. material breach by FivePrime, its Affiliates, sublicensees or subcontractors of any covenant, representation, warranty or other agreement made by FivePrime in this Agreement, or (b) the negligence or willful misconduct of any FivePrime Indemnitee.

Indemnification by BMS. BMS shall defend, indemnify, defend, and hold FivePrimeAlder, its Affiliates Affiliates, and its and each of their respective agentsofficers, directors, employees, officers and directors agents, (each a the “FivePrime IndemniteeAlder Indemnitees”) harmless from and against any and all damages or other amounts payable to a Third Party claimant[***] (collectively, “Alder Damages”), all to the extent resulting from any claims, suits, actions, demands, judgments, liabilities, expenses, proceedings or losses, including reasonable legal expenses and attorneys’ fees causes of action brought by such Third Party (collectively, “FivePrime LossesAlder Claims”) to which any FivePrime against such Alder Indemnitee may become subject to the extent such FivePrime Losses that arise from or are directly or indirectly caused by or otherwise arise out of or in connection withbased on: (ia) the performance Development, manufacture (other than in accordance with applicable specifications, GMP and other Applicable Law), storage, handling, use, sale, offer for sale, and importation of Licensed Products by BMS (or its Affiliates, sublicensees or subcontractorsSublicensees in or with respect to the Licensed Territory; (b) a breach of any of BMS’s ’ representations, warranties, and obligations under this Agreement (except to the extent directed by FivePrime)Agreement; (iic) the practice by BMS, its sublicensees, commercialization of Co-Developed Product in the Cancer Territory or its Affiliates of any license or sublicense granted to BMS hereunder, through the manufacture, storage, handling, use, sale, offer for sale or and importation of a Collaboration Target, Compound or Co-Developed Product or otherwisein connection therewith; (iiid) if BMS exercises the Option, the research or Development of Cancer Product by BMS or its sublicensees (or their respective Affiliates) outside the scope of the U.S. Co-Developed Product Development, or the manufacture, usestorage, handling, storage, importation, exportationuse, sale, offer for sale, and importation of Cancer Product in connection therewith; and/or (e) the willful misconduct or other disposition by BMSnegligent acts of BMS or its Affiliates, or the officers, directors, employees, or agents of BMS or its Affiliates. The foregoing indemnity obligation shall not apply if the Alder Indemnitees materially fail to comply with the indemnification procedures set forth in Section 15.3, or to the extent that any Alder Claim is subject to indemnity pursuant to Section 15.1 and/or is based on or alleges: (i) a breach of any of Alder’s representations, warranties, and obligations under this Agreement, (ii) the willful misconduct or negligent acts of Alder, its Affiliates, sublicenseesor their officers, subcontractors directors, employees, or distributors of Compound(s) agents or Product(s); (iv) the use by a Third Party of any Compound or Product sold or otherwise provided by BMS, its Affiliates, sublicensees, subcontractors or distributors; (viii) a material breach by BMS Alder or its Affiliates of any covenant, representation, warranty an obligation under an agreement between Alder or other agreement made by BMS in this Agreement; or (vi) the negligence or willful misconduct by BMS, its Affiliates, sublicensees, subcontractors or distributors; except, in each case, to the extent such FivePrime Losses result from: (a) the *** INDICATES MATERIAL THAT WAS OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT WAS REQUESTED. ALL SUCH OMITTED MATERIAL WAS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. material breach by FivePrime, its Affiliates, sublicensees or subcontractors of any covenant, representation, warranty or other agreement made by FivePrime in this Agreement, or (b) the negligence or willful misconduct of any FivePrime IndemniteeAffiliates and a Third Party.

Indemnification by BMS. BMS shall indemnify, defend, and hold FivePrimeindemnify Tranzyme, its Affiliates and its their respective directors, officers, employees, Third Party licensors and agents, and their respective agentssuccessors, employeesheirs and assigns (collectively, officers "Tranzyme Indemnitees"), and directors (defend and save each a “FivePrime Indemnitee”) harmless of them harmless, from and against any and all Third Party claimslosses, suits, actions, demands, judgmentsdamages, liabilities, expenses, or losses, costs and expenses (including reasonable legal expenses attorneys' fees and attorneys’ fees expenses) (collectively, “FivePrime "Losses”") to which any FivePrime Indemnitee may become subject to the extent such FivePrime Losses are directly or indirectly caused by or otherwise arise out of or in connection withwith any and all suits, investigations, claims or demands of Third Parties (collectively, "Third Party Claims") arising from or occurring as a result of: (i) the performance material breach by BMS (or its Affiliates, sublicensees or subcontractors) of BMS’s obligations under any term of this Agreement (except to the extent directed by FivePrime)Agreement; (ii) any gross negligence or willful misconduct on the practice by BMS, part of BMS in performing its sublicensees, or its Affiliates of any license or sublicense granted to BMS hereunder, through the manufacture, use, sale, offer for sale or importation of a Collaboration Target, Compound or Product or otherwiseobligations under this Agreement; (iii) the manufacture, use, handling, storage, importation, exportation, sale, any and all Third Party Claims relating to any alleged infringement or misappropriation of Patents or other disposition by BMS, its Affiliates, sublicensees, subcontractors intellectual property rights in connection with the Development or distributors Commercialization of Compound(s) Licensed Products; or Product(s); (iv) the use by a Third Party of any Compound Development or Product sold or otherwise provided by BMS, its Affiliates, sublicensees, subcontractors or distributors; (v) a material breach Commercialization by BMS or any of its Affiliates or Sublicensees of the Collaboration Lead, or the Licensed Products, including any covenant, representation, warranty such Third Party Claims relating to any alleged infringement or misappropriation of Patents or other agreement made by intellectual property rights or relating to death or bodily injury, except in each case for those Losses as to which Tranzyme has an obligation to indemnify BMS in this Agreementpursuant to Section 11.5(b), as to which Losses each Party shall indemnify the other to the extent of their respective liability; or (vi) provided however, that BMS shall not be obligated to indemnify any Tranzyme Indemnitees for any Losses to the extent that such Losses arise as a result of the gross negligence or willful misconduct by BMS, its Affiliates, sublicensees, subcontractors or distributors; except, in each case, to on the extent such FivePrime Losses result from: (a) the *** INDICATES MATERIAL THAT WAS OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT WAS REQUESTED. ALL SUCH OMITTED MATERIAL WAS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. material breach by FivePrime, its Affiliates, sublicensees or subcontractors part of any covenant, representation, warranty or other agreement made by FivePrime in this Agreement, or (b) the negligence or willful misconduct of any FivePrime a Tranzyme Indemnitee.

Indemnification by BMS. Subject to Section 12.2, BMS shall indemnify, defend, and hold FivePrimeagrees to defend AMRI, its Affiliates and its and their respective agentsdirectors, employeesofficers, officers employees and directors agents (each a collectively, the “FivePrime IndemniteeAMRI Indemnitees”) against (at BMS’ cost and expense), and shall indemnify and hold harmless the AMRI Indemnitees from and against any and all Third Party claims, suits, actions, demands, judgments, liabilities, expenses, or losses, costs, damages, fees and/or expenses (including reasonable legal expenses and attorneys’ fees) (such liabilities, losses, costs, damages, fees and/or expenses, collectively, “Losses”) payable to a Third Party arising out of, any claim, action, lawsuit, or other proceeding (collectively, “FivePrime LossesClaims”) to which brought against any FivePrime AMRI Indemnitee may become subject to the extent such FivePrime Losses are by a Third Party resulting directly or indirectly caused by or otherwise arise out of or in connection with: from (i) the performance by BMS (or its Affiliatesresearch, sublicensees or subcontractors) of BMS’s obligations under this Agreement (except to the extent directed by FivePrime); (ii) the practice by BMSdiscovery, its sublicenseesidentification, or its Affiliates of any license or sublicense granted to BMS hereunder, through the manufacture, use, sale, offer for sale or importation of a Collaboration Target, Compound or Product or otherwise; (iii) the manufactureDevelopment, use, handling, storage, importation, exportation, sale, or Commercialization and/or other disposition of Licensed Compounds, and/or Licensed Products in the Territory by or on behalf of BMS, its Affiliates, sublicenseesand/or their respective directors, subcontractors or distributors of Compound(s) or Product(s); officers, employees, agents, contractors and/or (ivsub)licensees, and/or (ii) the manufacture of Licensed Products and/or Licensed Compounds for use and/or sale by a Third Party or on behalf of any Compound or Product sold or otherwise provided by BMS, its Affiliates, sublicenseesand/or their respective directors, subcontractors officers, employees, agents, contractors and/or (sub)licensees, (iii) the use of Licensed Products and/or Licensed Compounds obtained directly or distributors; (v) a material breach by BMS or indirectly from BMS, its Affiliates of any covenantand/or their (sub)licensees, representation, warranty or other agreement made by BMS in this Agreement; or and/or (viiv) the negligence negligence, unlawful acts or willful misconduct by BMSof BMS and/or its Affiliates and/or their respective (sub)licensees, its Affiliatesdirectors, sublicenseesofficers, subcontractors or distributors; exceptagents, directors and/or contractors in each casecarrying out activities pursuant to this Agreement and/or in connection with Licensed Compounds prior to the Effective Date of this Agreement, except (1) to the extent that it is established that such FivePrime Losses result from: from (a) the *** INDICATES MATERIAL THAT WAS OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT WAS REQUESTED. ALL SUCH OMITTED MATERIAL WAS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934gross negligence, AS AMENDED. material breach by FivePrime, its Affiliates, sublicensees willful misconduct or subcontractors unlawful act of any covenant, representation, warranty or other agreement made by FivePrime in this Agreement, or AMRI Indemnitee; (b) the negligence or willful misconduct any breach by AMRI of any FivePrime Indemniteeof its representations and warranties under Article 16 of this Agreement or any breach by AMRI of any of its covenants and obligations under this Agreement; (c) trade secret misappropriation liability by an AMRI Indemnitee resulting from the research, discovery, identification, Development and/or manufacture by or on behalf of any AMRI Indemnitee of any Licensed Compound and/or Licensed Product prior to the Effective Date, and/or (2) to the extent that it is established that AMRI is obligated to indemnify a portion of such Losses pursuant to Section 12.1.2. Except as provided in Section 12.2.2, with respect to reasonable legal expenses and attorneys’ fees incurred by the AMRI Indemnitees in connection with a Claim, only such expenses and fees that are incurred until such time as BMS has acknowledged and assumed its indemnification obligation hereunder with respect to such Claim shall be included in Losses.

Indemnification by BMS. Subject to Sections 15.1.3 and 15.3, BMS shall indemnify, defend, and hold FivePrimeagrees to defend Medarex, its Affiliates and its and their respective agentsdirectors, employeesofficers, officers employees and directors agents (each a collectively, the “FivePrime IndemniteeMedarex Indemnitees”) ), at BMS’ cost and expense, and shall indemnify and hold harmless the Medarex Indemnitees from and against any and all Third Party claims, suits, actions, demands, judgments, liabilities, expenses, or losses, costs, damages, fees or expenses (including reasonable legal expenses and attorneys’ fees incurred by the indemnified Party or its Affiliates and their respective directors, officers, employees and agents until such time as the indemnifying Party has acknowledged and assumed its indemnification obligation hereunder with respect to a Claim) payable to a Third Party (collectively, “FivePrime Losses”) to which arising out of any FivePrime claim, action, lawsuit, or other proceeding (collectively, “Claims”) brought against any Medarex Indemnitee may become subject by a Third Party to the extent such FivePrime Losses are resulting directly or indirectly caused by or otherwise arise out of or in connection with: from (ia) the performance by BMS (or its AffiliatesDevelopment, sublicensees or subcontractors) of BMS’s obligations under this Agreement (except to the extent directed by FivePrime); (ii) the practice by BMS, its sublicensees, or its Affiliates of any license or sublicense granted to BMS hereunder, through the manufacture, use, sale, offer for sale or importation of a Collaboration Target, Compound or Product or otherwise; (iii) the manufacture, use, handling, storage, importation, exportation, sale, Commercialization or other disposition of (i) a Product, whether alone or for use together, or in combination, with an Agent, (ii) MDX-1379 or (iii) a Non-Antibody Competing Product, in each case ((i), (ii) and (iii)), in the Territory by BMS, its Affiliates, sublicenseesor their respective employees, subcontractors agents, (sub)licensees under this Agreement (other than Medarex or distributors of Compound(sits Affiliates) or Product(s)subcontractors; (iv) the use by a Third Party of any Compound or Product sold or otherwise provided by BMS, its Affiliates, sublicensees, subcontractors or distributors; (v) a material breach by BMS or its Affiliates of any covenant, representation, warranty or other agreement made by BMS in this Agreement; or (vi) the negligence or willful misconduct by BMS, its Affiliates, sublicensees, subcontractors or distributors; except, in each case, to the extent such FivePrime Losses result from: (a) the *** INDICATES MATERIAL THAT WAS OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT WAS REQUESTED. ALL SUCH OMITTED MATERIAL WAS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. material breach by FivePrime, its Affiliates, sublicensees or subcontractors of any covenant, representation, warranty or other agreement made by FivePrime in this Agreement, or (b) the negligence or willful misconduct of any FivePrime IndemniteeBMS Indemnitee or any BMS licensee under this Agreement (other than Medarex or its Affiliates) or subcontractor in performing any activities by or on behalf of BMS in connection with this Agreement; (c) any material breach by BMS of any of its representations, warranties, covenants or obligations pursuant to this Agreement; (d) intellectual property infringement and trade secret misappropriation liability resulting from research, Development or Commercialization by a BMS Indemnitee or any BMS licensee under this Agreement (other than Medarex or its Affiliates) or subcontractor in performing any activities by or on behalf of BMS in connection with this Agreement; (e) any breach of Applicable Law by any BMS Indemnitee or any BMS licensee under this Agreement (other than Medarex or its Affiliates) or subcontractor in performing any activities by or on behalf of BMS in connection with this Agreement; (f) any use of Medarex’s Corporate Names by any BMS Indemnitee or any BMS licensee under this Agreement (other than Medarex or its Affiliates); and (g) BMS’ election not to obtain a Third Party license where Medarex believes that such a license should be obtained (as set forth in Section 6.7.2(b)), except for those Losses for which Medarex has an obligation to indemnify BMS and its Affiliates pursuant to Section 15.1.2 or 14.4.9, as to which Losses each Party shall indemnify the other to the extent of their respective liability for the Losses.