INDEMNITY, INSURANCE, REPRESENTATIONS, STATUS. 14.01 DUKE, and its trustees, officers, employees, faculty members, students, and agents (collectively, “DUKE Indemnitees”) will be indemnified, defended by counsel reasonably acceptable to DUKE, and held harmless by OREXIGEN and appertaining SUBLICENSEES, as the case may be, from and against any claim, liability, cost, expense, damage, deficiency, loss or obligation, of any kind or nature (including, without limitation, reasonable attorneys’ fees and other costs and expenses of defense) (collectively, “CLAIMS”) based upon, arising out of, or otherwise relating to this AGREEMENT including, but not limited to, (i) any action relating to product liability, and (ii) any CLAIM that a LICENSED PRODUCT and/or practice of any of the DUKE PATENT RIGHTS and/or OREXIGEN PATENT RIGHTS infringes the intellectual property of a THIRD PARTY. However, the foregoing indemnity shall not apply to CLAIMS to the extent that they are (x) caused by the gross negligence of DUKE, DUKE employees, DUKE faculty members, students, and/or agents acting solely within the performance of their respective responsibilities at DUKE, (y) caused by a material breach of this AGREEMENT by DUKE, and/or (z) pertain solely to claims that the activities of DUKE employees, faculty members, students, and/or agents in their performance of their respective responsibilities at DUKE (excluding any research or other responsibilities such individuals may have as a result of an association each may have with OREXIGEN and/or SUBLICENSEES) infringe the intellectual property of a THIRD PARTY. 14.02 OREXIGEN will purchase and maintain in effect, at its sole expense, with reputable insurance companies, appropriate insurance policies, including, but not limited to a policy of product liability insurance and a policy of general liability insurance, in such amounts as is reasonably sufficient and commercially reasonable to protect against its liability under Section 14.01 above. Further, OREXIGEN will require that every SUBLICENSEE, purchase and maintain in effect, at its sole expense, with reputable insurance companies, appropriate insurance policies, including, but not limited to a policy of product liability insurance and a policy of general liability insurance, in such amounts as is reasonably sufficient and commercially reasonable to protect against their respective liability as regards Section 14.01 above. It is understood and agreed that OREXIGEN and/or SUBLICENSEES (as the case may be) shall not be required to possess product liability insurance under this Section 14.02 until the first of the following to occur as regards OREXIGEN and/or appertaining SUBLICENSEES (i) commencement of clinical trials of DUKE LICENSED PRODUCT and/or OREXIGEN LICENSED PRODUCT; or (ii) commencement of sale, lease, or provision of LICENSED PRODUCTS (including, but not limited to provision of DUKE LICENSED SERVICES or OREXIGEN LICENSED SERVICES in connection with a clinical trial). DUKE shall have the right to ascertain from time to time that any required coverage under this Section 14.02 exists, such right to be exercised by DUKE in a reasonable manner.
Appears in 2 contracts
Samples: License Agreement (Orexigen Therapeutics, Inc.), License Agreement (Orexigen Therapeutics, Inc.)
INDEMNITY, INSURANCE, REPRESENTATIONS, STATUS. 14.01 15.01 DUKE, and its trustees, officers, employees, faculty members, students, and agents (collectively, “DUKE Indemnitees”) will be indemnified, defended by counsel reasonably acceptable to DUKE, and held harmless by OREXIGEN COMPANY and appertaining SUBLICENSEES, as the case may be, from and against any claim, liability, cost, expense, damage, deficiency, loss or obligation, of any kind or nature (including, without limitation, reasonable attorneys’ fees and other costs and expenses of defense) (collectively, “CLAIMS”) based upon, arising out of, or otherwise relating to this AGREEMENT including, but not limited to, (i) any action relating to product liability, and (ii) any CLAIM that a LICENSED PRODUCT PRODUCT, and/or LICENSED SERVICE and/or practice of any of the DUKE PATENT RIGHTS and/or OREXIGEN PATENT RIGHTS KNOW-HOW infringes the intellectual property of a THIRD PARTY. However, the foregoing indemnity shall not apply to CLAIMS to the extent that they are (xy) caused by the gross negligence or willful misconduct of DUKE, DUKE employees, DUKE faculty members, students, and/or agents acting solely within the performance of their respective responsibilities at DUKE, (y) caused by a material breach of this AGREEMENT by DUKE, and/or (z) pertain solely to claims that the activities acts of DUKE employees, faculty members, students, and/or agents in their performance of their respective responsibilities at DUKE (excluding any research God or other responsibilities such individuals events for which COMPANY (and/or SUBLICENSEE(S), as the case may have as a result of an association each may have with OREXIGEN and/or SUBLICENSEESbe) infringe the intellectual property of a THIRD PARTYhas no control.
14.02 OREXIGEN 15.02 COMPANY will purchase and maintain in effect, at its sole expense, with reputable insurance companies, appropriate insurance policies, including, but not limited to a policy of product liability insurance and a policy of general commercial liability insurance, in such amounts as is reasonably sufficient and commercially reasonable to protect against its liability under Section 14.01 15.01 above. Further, OREXIGEN COMPANY will require that every each SUBLICENSEE, purchase and maintain in effect, at its sole expense, with reputable insurance companies, appropriate insurance policies, including, but not limited to a policy of product liability insurance and a policy of general liability insurance, in such amounts as is reasonably sufficient and commercially reasonable to protect against their respective liability as regards Section 14.01 15.01 above. It is understood and agreed that OREXIGEN COMPANY and/or SUBLICENSEES (as the case may be) shall not be required to possess product liability insurance under this Section 14.02 15.02 until the first of the following to occur as regards OREXIGEN COMPANY and/or appertaining SUBLICENSEES (i) commencement of clinical trials of DUKE LICENSED PRODUCT and/or OREXIGEN a LICENSED PRODUCT; or (ii) commencement of sale, lease, or provision of LICENSED PRODUCTS (including, but not limited to provision of DUKE LICENSED SERVICES or OREXIGEN LICENSED SERVICES in connection with a clinical trial). DUKE shall have the right to ascertain from time to time that any required coverage under this Section 14.02 15.02 exists, such right to be exercised by DUKE in a reasonable manner.
15.03 DUKE represents and warrants to COMPANY that, to the best knowledge of the DUKE University Office of Science and Technology, (i) DUKE has not received any notice of infringement from any THIRD PARTY relating to the INVENTIONS or the DUKE PATENT RIGHTS; (ii) no claim, suit or action has been made, brought or threatened by any THIRD PARTY with respect to the INVENTIONS or the DUKE PATENT RIGHTS, and there is no basis for any such claim, suit or action; (iii) DUKE has the authority to enter into this AGREEMENT; (iv) DUKE has the authority to grant the LICENSES herein without the consent of any THIRD PARTY; (v) the execution, delivery and performance of this AGREEMENT by DUKE does not violate any covenant or agreement to which DUKE is a party or by which it is bound; and (vi) except for rights owned by The Regents of the University of California in DUKE University Office of Science and Technology File #2087 INVENTION, DUKE owns all right, title, and interest, in and to the INVENTIONS and the DUKE PATENT RIGHTS.
15.04 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 15.03, DUKE MAKES NO REPRESENTATIONS NOR EXTENDS ANY WARRANTIES OF ANY KIND. IN PARTICULAR, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE USE OF THE DUKE PATENT RIGHTS AND/OR KNOW-HOW DOES NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER RIGHTS. IN ADDITION, NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO BE A REPRESENTATION OR WARRANTY BY DUKE OF THE VALIDITY OF ANY OF THE DUKE PATENT RIGHTS OR THE ACCURACY, SAFETY, EFFICACY, OR USEFULNESS, FOR ANY PURPOSE, OF THE DUKE PATENT RIGHTS OR KNOW-HOW. DUKE SHALL HAVE NO OBLIGATION, EXPRESS OR IMPLIED, TO SUPERVISE, MONITOR, REVIEW OR OTHERWISE ASSUME RESPONSIBILITY FOR THE PRODUCTION, MANUFACTURE, TESTING, MARKETING OR SALE OF ANY LICENSED PRODUCT. (FOR AVOIDANCE OF DOUBT, IT IS UNDERSTOOD AND AGREED THAT ANY SUCH ACTIVITY DESCRIBED IN THE PRECEDING SENTENCE BY ONE OR MORE OF THE INVENTORS OR ANY OTHER DUKE TRUSTEE, FACULTY MEMBER, EMPLOYEE, STUDENT, AND/OR AGENT SHALL BE DEEMED TO BE OUTSIDE THEIR RESPECTIVE CAPACITY AS A DUKE TRUSTEE, FACULTY MEMBER, EMPLOYEE, STUDENT, AND/OR AGENT, AS THE CASE MAY BE.) FURTHER, DUKE SHALL HAVE NO LIABILITY WHATSOEVER TO COMPANY, ITS AFFILIATES, SUBLICENSEES, OR ANY THIRD PARTIES FOR OR ON ACCOUNT OF ANY INJURY, LOSS, OR DAMAGE, OF ANY KIND OR NATURE, SUSTAINED BY, OR ANY DAMAGE ASSESSED OR ASSERTED AGAINST, OR ANY OTHER LIABILITY INCURRED BY OR IMPOSED UPON COMPANY OR ANY OTHER PERSON OR ENTITY, ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM:
(a) the production, use, practice, offering, lease, or sale of any LICENSED PRODUCT and/or LICENSED SERVICES;
(b) the use of the DUKE PATENT RIGHTS, DUKE MATERIALS, and/or KNOW-HOW; or
(c) any advertising or other promotional activities with respect to any of the foregoing.
15.05 Neither party hereto is an agent of the other party for any purpose whatsoever.
Appears in 1 contract
Samples: License Agreement (Viela Bio, Inc.)
INDEMNITY, INSURANCE, REPRESENTATIONS, STATUS. 14.01 DUKE, and its trustees, officers, employees, faculty members, students, and agents (collectively, “DUKE Indemnitees”) will be indemnified, defended by counsel reasonably acceptable to DUKE, and held harmless by OREXIGEN LICENSEE and appertaining AFFILIATES and SUBLICENSEES, as the case may be, from and against any claim, liability, cost, expense, damage, deficiency, loss or obligation, of any kind or nature (including, without limitation, reasonable attorneys’ fees and other costs and expenses of defense) (collectively, “CLAIMS”) based upon, arising out of, or otherwise relating to this AGREEMENT including, but not limited to, (i) any action relating to product liability, and (ii) any CLAIM that a LICENSED PRODUCT and/or LICENSED PROCESS and/or practice of any of the DUKE PATENT RIGHTS and/or OREXIGEN PATENT RIGHTS infringes the intellectual property of a THIRD PARTY. However, the foregoing indemnity shall not apply to CLAIMS to the extent that they are (x) caused by the gross negligence of DUKE, DUKE employees, DUKE faculty members, students, and/or agents acting solely within the performance of their respective responsibilities at DUKE, (y) caused by a material breach of this AGREEMENT by DUKE, and/or (z) pertain solely to claims that the activities of DUKE employees, faculty members, students, and/or agents in their performance of their respective responsibilities at DUKE (excluding any research or other responsibilities such individuals may have as a result of an association each may have with OREXIGEN LICENSEE and/or AFFILIATES and/or SUBLICENSEES) infringe the intellectual property of a THIRD PARTY.
14.02 OREXIGEN will purchase and maintain in effectDUKE MAKES NO REPRESENTATIONS NOR EXTENDS ANY WARRANTIES OF ANY KIND. IN PARTICULAR, at its sole expenseTHERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE USE OF THE PATENT RIGHTS DOES NOT INFRINGE ANY PATENT, with reputable insurance companiesCOPYRIGHT, appropriate insurance policiesTRADEMARK OR OTHER RIGHTS. IN ADDITION, includingNOTHING IN THIS AGREEMENT SHALL BE DEEMED TO BE A REPRESENTATION OR WARRANTY BY DUKE OF THE VALIDITY OF ANY OF THE PATENT RIGHTS OR THE ACCURACY, but not limited to a policy of product liability insurance and a policy of general liability insuranceSAFETY, in such amounts as is reasonably sufficient and commercially reasonable to protect against its liability under Section 14.01 above. FurtherEFFICACY, OREXIGEN will require that every SUBLICENSEEOR USEFULNESS, purchase and maintain in effectFOR ANY PURPOSE, at its sole expenseOF THE PATENT RIGHTS DUKE SHALL HAVE NO OBLIGATION, with reputable insurance companiesEXPRESS OR IMPLIED, appropriate insurance policiesTO SUPERVISE, includingMONITOR, but not limited to a policy of product liability insurance and a policy of general liability insuranceREVIEW OR OTHERWISE ASSUME RESPONSIBILITY FOR THE PRODUCTION, in such amounts as is reasonably sufficient and commercially reasonable to protect against their respective liability as regards Section 14.01 above. It is understood and agreed that OREXIGEN and/or SUBLICENSEES (as the case may be) shall not be required to possess product liability insurance under this Section 14.02 until the first of the following to occur as regards OREXIGEN and/or appertaining SUBLICENSEES (i) commencement of clinical trials of DUKE MANUFACTURE, TESTING, MARKETING OR SALE OF ANY LICENSED PRODUCT and/or OREXIGEN OR LICENSED PRODUCT; or PROCESS. (iiFOR AVOIDANCE OF DOUBT, IT IS UNDERSTOOD AND AGREED THAT ANY SUCH ACTIVITY DESCRIBED IN THE PRECEDING SENTENCE BY ONE OR MORE OF THE INVENTORS OR ANY OTHER DUKE TRUSTEE, FACULTY MEMBER, EMPLOYEE, STUDENT, AND/OR AGENT SHALL BE DEEMED TO BE OUTSIDE THEIR RESPECTIVE CAPACITY AS A DUKE TRUSTEE, FACULTY MEMBER, EMPLOYEE, STUDENT, AND/OR AGENT, AS THE CASE MAY BE.) commencement of saleFURTHER, DUKE SHALL HAVE NO LIABILITY WHATSOEVER TO LICENSEE, ITS AFFILIATES, SUBLICENSEES, OR ANY THIRD PARTIES FOR OR ON ACCOUNT OF ANY INJURY, LOSS, OR DAMAGE, OF ANY KIND OR NATURE, SUSTAINED BY, OR ANY DAMAGE ASSESSED OR ASSERTED AGAINST, OR ANY OTHER LIABILITY INCURRED BY OR IMPOSED UPON LICENSEE OR ANY OTHER PERSON OR ENTITY, ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM:
(a) the production, use, practice, offering, lease, or provision sale of any LICENSED PRODUCTS PRODUCT or LICENSED PROCESS;
(including, but not limited b) the use of the PATENT RIGHTS; or
(c) any advertising or other promotional activities with respect to provision any of DUKE LICENSED SERVICES or OREXIGEN LICENSED SERVICES in connection with a clinical trial). DUKE shall have the right to ascertain from time to time that foregoing.
14.03 Neither party hereto is an agent of the other party for any required coverage under this Section 14.02 exists, such right to be exercised by DUKE in a reasonable mannerpurpose whatsoever.
Appears in 1 contract
