Common use of Indemnification by BMS Clause in Contracts

Indemnification by BMS. BMS shall defend, indemnify, and hold Alder, its Affiliates, and each of their respective officers, directors, employees, and agents, (the “Alder 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, proceedings or causes of action brought by such Third Party (collectively, “Alder Claims”) against such Alder Indemnitee that arise from or are based on: (a) the 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, or Sublicensees in or with respect to the Licensed Territory; (b) a breach of any of BMS’ representations, warranties, and obligations under the Agreement; (c) the commercialization of Co-Developed Product in the Cancer Territory or the manufacture, storage, handling, use, sale, offer for sale and importation of Co-Developed Product in connection therewith; (d) 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, storage, handling, use, sale, offer for sale, and importation of Cancer Product in connection therewith; and/or (e) the willful misconduct or negligent 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, or their officers, directors, employees, or agents or (iii) a breach by Alder or its Affiliates of an obligation under an agreement between Alder or its Affiliates and a Third Party.

Indemnification by BMS. BMS shall indemnify, defend, indemnify, and hold AlderFivePrime, its Affiliates, Affiliates and each of its and their respective officers, directorsagents, employees, officers and agents, directors (the each a “Alder IndemniteesFivePrime Indemnitee”) harmless from and against any and all damages or other amounts payable to a Third Party claimant[***] claims, suits, actions, demands, judgments, liabilities, expenses, or losses, including reasonable legal expenses and attorneys’ fees (collectively, “Alder DamagesFivePrime Losses”), all ) to which any FivePrime Indemnitee may become subject to the extent resulting from any claims, suits, proceedings such FivePrime Losses are directly or causes indirectly caused by or otherwise arise out of action brought by such Third Party (collectively, “Alder Claims”) against such Alder Indemnitee that arise from or are based onin connection with: (ai) the 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 performance by BMS (or its Affiliates, sublicensees or Sublicensees in or with respect subcontractors) of BMS’s obligations under this Agreement (except to the Licensed Territoryextent directed by FivePrime); (bii) a breach the practice by BMS, its sublicensees, or its Affiliates of any of BMS’ representationslicense or sublicense granted to BMS hereunder, warranties, and obligations under the Agreement; (c) the commercialization of Co-Developed Product in the Cancer Territory or through the manufacture, storage, handling, use, sale, offer for sale and or importation of Co-Developed a Collaboration Target, Compound or Product in connection therewithor otherwise; (diii) if BMS exercises the Optionmanufacture, 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 research use by a Third Party of any Compound or Development of Cancer Product sold or otherwise provided by BMS, its Affiliates, sublicensees, subcontractors or distributors; (v) a material breach by BMS or its sublicensees Affiliates of any covenant, representation, warranty or other agreement made by BMS in this Agreement; or (or their respective Affiliates) outside the scope of the U.S. Co-Developed Product Development, or the manufacture, storage, handling, use, sale, offer for sale, and importation of Cancer Product in connection therewith; and/or (evi) the negligence or willful misconduct or negligent 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 Alderby BMS, its Affiliates, sublicensees, subcontractors or their officersdistributors; except, directorsin each case, employeesto the extent such FivePrime Losses result from: (a) the material breach by FivePrime, its Affiliates, sublicensees or subcontractors of any covenant, representation, warranty or other agreement made by FivePrime in this Agreement, or agents (b) the negligence or (iii) a breach by Alder or its Affiliates willful misconduct of an obligation under an agreement between Alder or its Affiliates and a Third Partyany FivePrime Indemnitee.

Indemnification by BMS. Subject to Section 12.2, BMS shall defend, indemnify, and hold Alderagrees to defend AMRI, its Affiliates, Affiliates and each of their respective directors, officers, directorsemployees and agents (collectively, employees, and agents, (the “Alder AMRI Indemnitees”) against (at BMS’ cost and expense), and shall indemnify and hold harmless the AMRI Indemnitees from and against any liabilities, losses, costs, damages, fees and/or expenses (including reasonable legal expenses and all damages or other amounts attorneys’ fees) (such liabilities, losses, costs, damages, fees and/or expenses, collectively, “Losses”) payable to a Third Party claimant[***] arising out of, any claim, action, lawsuit, or other proceeding (collectively, “Alder DamagesClaims”)) brought against any AMRI Indemnitee by a Third Party resulting directly or indirectly from (i) the research, all discovery, identification, Development, use, handling, storage, Commercialization and/or other disposition of Licensed Compounds, and/or Licensed Products in the Territory by or on behalf of BMS, its Affiliates, and/or their respective directors, officers, employees, agents, contractors and/or (sub)licensees, and/or (ii) the manufacture of Licensed Products and/or Licensed Compounds for use and/or sale by or on behalf of BMS, its Affiliates, and/or their respective directors, officers, employees, agents, contractors and/or (sub)licensees, (iii) the use of Licensed Products and/or Licensed Compounds obtained directly or indirectly from BMS, its Affiliates and/or their (sub)licensees, and/or (iv) the negligence, unlawful acts or willful misconduct of BMS and/or its Affiliates and/or their respective (sub)licensees, directors, officers, agents, directors and/or contractors in carrying 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 resulting that it is established that such Losses result from any claims, suits, proceedings or causes of action brought by such Third Party (collectively, “Alder Claims”) against such Alder Indemnitee that arise from or are based on: (a) the Developmentgross negligence, manufacture (other than in accordance with applicable specifications, GMP and other Applicable Law), storage, handling, use, sale, offer for sale, and importation willful misconduct or unlawful act of Licensed Products by BMS or its Affiliates, or Sublicensees in or with respect to the Licensed Territoryany AMRI Indemnitee; (b) a any breach by AMRI of any of BMS’ representations, warranties, its representations and warranties under Article 16 of this Agreement or any breach by AMRI of any of its covenants and obligations under the this Agreement; (c) trade secret misappropriation liability by an AMRI Indemnitee resulting from the commercialization research, discovery, identification, Development and/or manufacture by or on behalf of Co-Developed any AMRI Indemnitee of any Licensed Compound and/or Licensed Product in prior to the Cancer Territory or the manufactureEffective Date, storage, handling, use, sale, offer for sale and importation of Co-Developed Product in connection therewith; (d) 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, storage, handling, use, sale, offer for sale, and importation of Cancer Product in connection therewith; and/or (e2) the willful misconduct or negligent 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 it is subject established that AMRI is obligated to indemnity indemnify a portion of such Losses pursuant to Section 15.1 and/or is based on or alleges: (i) 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 breach of any of Alder’s representationsClaim, warranties, only such expenses and obligations under this Agreement, (ii) the willful misconduct or negligent acts of Alder, fees that are incurred until such time as BMS has acknowledged and assumed its Affiliates, or their officers, directors, employees, or agents or (iii) a breach by Alder or its Affiliates of an indemnification obligation under an agreement between Alder or its Affiliates and a Third Partyhereunder with respect to such Claim shall be included in Losses.

Indemnification by BMS. Subject to Sections 15.1.3 and 15.3, BMS shall defendagrees to defend Medarex, indemnifyits Affiliates and their respective directors, officers, employees and agents (collectively, the “Medarex Indemnitees”), at BMS’ cost and expense, and shall indemnify and hold Alder, its Affiliates, and each of their respective officers, directors, employees, and agents, (harmless the “Alder Indemnitees”) harmless Medarex Indemnitees from and against any liabilities, losses, costs, damages, fees or expenses (including reasonable legal expenses and all damages attorneys’ fees incurred by the indemnified Party or other amounts 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 claimant[***] (collectively, “Alder Damages”), all to the extent resulting from any claims, suits, proceedings or causes of action brought by such Third Party (collectively, “Alder Losses”) arising out of any claim, action, lawsuit, or other proceeding (collectively, “Claims”) brought against such Alder any Medarex Indemnitee that arise by a Third Party to the extent resulting directly or indirectly from or are based on: (a) the Development, manufacture (other than in accordance with applicable specificationsmanufacture, GMP and other Applicable Law)use, handling, storage, handling, use, sale, offer for sale, and importation Commercialization or other disposition of Licensed Products by BMS or its Affiliates, or Sublicensees in or with respect to the Licensed Territory; (b) a breach of any of BMS’ representations, warranties, and obligations under the Agreement; (c) the commercialization of Co-Developed Product in the Cancer Territory or the manufacture, storage, handling, use, sale, offer for sale and importation of Co-Developed Product in connection therewith; (d) 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, storage, handling, use, sale, offer for sale, and importation of Cancer Product in connection therewith; and/or (e) the willful misconduct or negligent 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 representationsProduct, warrantieswhether alone or for use together, and obligations under this Agreementor in combination, with an Agent, (ii) MDX-1379 or (iii) a Non-Antibody Competing Product, in each case ((i), (ii) and (iii)), in the willful misconduct or negligent acts of AlderTerritory by BMS, its Affiliates, or their officers, directors, respective employees, agents, (sub)licensees under this Agreement (other than Medarex or agents its Affiliates) or subcontractors; (iiib) a the negligence or willful misconduct of 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; (c) any material breach by Alder 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 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 under an agreement between Alder or to indemnify BMS and its Affiliates and a Third Partypursuant 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.

Indemnification by BMS. BMS shall indemnify, defend, indemnify, and hold AlderFivePrime, its Affiliates, Affiliates and each of its and their respective officers, directorsagents, employees, officers and agents, directors (the each a “Alder IndemniteesFivePrime Indemnitee”) harmless from and against any and all damages or other amounts payable to a Third Party claimant[***] claims, suits, actions, demands, judgments, liabilities, expenses, or losses, including reasonable legal expenses and attorneys’ fees (collectively, “Alder DamagesFivePrime Losses”), all ) to which any FivePrime Indemnitee may become subject to the extent resulting from any claims, suits, proceedings such FivePrime Losses are directly or causes indirectly caused by or otherwise arise out of action brought by such Third Party (collectively, “Alder Claims”) against such Alder Indemnitee that arise from or are based onin connection with: (ai) the 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 performance by BMS (or its Affiliates, sublicensees or Sublicensees in or with respect subcontractors) of BMS’s obligations under this Agreement (except to the Licensed Territoryextent directed by FivePrime); (bii) a breach the practice by BMS, its sublicensees, or its Affiliates of any of BMS’ representationslicense or sublicense granted to BMS hereunder, warranties, and obligations under the Agreement; (c) the commercialization of Co-Developed Product in the Cancer Territory or through the manufacture, storage, handling, use, sale, offer for sale and or importation of Co-Developed a Collaboration Target, Compound or Product in connection therewithor otherwise; (diii) if BMS exercises the Optionmanufacture, 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 research use by a Third Party of any Compound or Development of Cancer Product sold or otherwise provided by BMS, its Affiliates, sublicensees, subcontractors or distributors; (v) a material breach by BMS or its sublicensees Affiliates of any covenant, representation, warranty or other agreement made by BMS in this Agreement; or (or their respective Affiliates) outside the scope of the U.S. Co-Developed Product Development, or the manufacture, storage, handling, use, sale, offer for sale, and importation of Cancer Product in connection therewith; and/or (evi) the negligence or willful misconduct or negligent 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 Alderby BMS, its Affiliates, sublicensees, subcontractors or their officersdistributors; except, directorsin each case, employeesto 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 agents (b) the negligence or (iii) a breach by Alder or its Affiliates willful misconduct of an obligation under an agreement between Alder or its Affiliates and a Third Partyany FivePrime Indemnitee.

Indemnification by BMS. BMS shall defend, indemnify, and hold Alderindemnify Tranzyme, its Affiliates, Affiliates and each of their respective directors, officers, directors, employees, Third Party licensors and agents, and their respective successors, heirs and assigns (the “Alder collectively, "Tranzyme Indemnitees”) harmless "), and defend and save each of them harmless, from and against any and all damages or other amounts payable to a Third Party claimant[***] losses, damages, liabilities, costs and expenses (including reasonable attorneys' fees and expenses) (collectively, “Alder Damages”"Losses") in connection with 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 material breach by BMS of any term of this Agreement; (ii) any gross negligence or willful misconduct on the part of BMS in performing its obligations under this Agreement; (iii) any and all Third Party Claims relating to any alleged infringement or misappropriation of Patents or other intellectual property rights in connection with the Development or Commercialization of Licensed Products; or (iv) the Development or Commercialization by BMS or any of its Affiliates or Sublicensees of the Collaboration Lead, or the Licensed Products, including any such Third Party Claims relating to any alleged infringement or misappropriation of Patents or other 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 pursuant to Section 11.5(b), all as to which Losses each Party shall indemnify the other to the extent resulting from any claims, suits, proceedings or causes of action brought by such Third Party (collectively, “Alder Claims”) against such Alder Indemnitee that arise from or are based on: (a) the 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, or Sublicensees in or with respect to the Licensed Territory; (b) a breach of any of BMS’ representations, warranties, and obligations under the Agreement; (c) the commercialization of Co-Developed Product in the Cancer Territory or the manufacture, storage, handling, use, sale, offer for sale and importation of Co-Developed Product in connection therewith; (d) 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 Developmentliability; provided however, or the manufacture, storage, handling, use, sale, offer for sale, and importation of Cancer Product in connection therewith; and/or (e) the willful misconduct or negligent acts of that 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 be obligated to indemnify any Tranzyme Indemnitees materially fail to comply with the indemnification procedures set forth in Section 15.3, or for any Losses to the extent that any Alder Claim is subject to indemnity pursuant to Section 15.1 and/or is based on such Losses arise as a result of the gross negligence or alleges: (i) a breach of any of Alder’s representations, warranties, and obligations under this Agreement, (ii) the willful misconduct or negligent acts on the part of Alder, its Affiliates, or their officers, directors, employees, or agents or (iii) a breach by Alder or its Affiliates of an obligation under an agreement between Alder or its Affiliates and a Third PartyTranzyme Indemnitee.