Recipient Indemnification. The Recipient hereby agrees to Indemnify BMS, its Affiliates, and its and their agents, directors, officers, employees and subcontractors (the “BMS Indemnitees”) from and against any and all Losses resulting from Third Party Claims to the extent that they arise or result from (a) the negligence or intentional misconduct of any Recipient Indemnitee or any (sub)licensee of the Recipient conducting activities on behalf of the Recipient under this Agreement, (b) any breach by the Recipient of any provision of this Agreement, (c) any injury to a subject in the Combined Therapy Clinical Trial not caused by the BMS Study Drug, or (d) the use by the Recipient, its Affiliates, contractors or (sub)licensees of Combined Therapy Study Data, Recipient Study Data, Recipient Study Inventions, Recipient Study Patent Rights, Combined Therapy Inventions and Combined Therapy Patent Rights (other than with respect to Third Party Claims that are covered under Section 6.4); but excluding, in each case ((a) through (d)), any such Losses to the extent arising or resulting from a cause or event for which BMS is obligated to Indemnify the Recipient Indemnitees pursuant to Section 11.1.
Recipient Indemnification. This indemnification provision did not exist in the IFA. This section explains that the FHT will agree to protect the Ministry from any claims brought against it as a result of the actions of the FHT. The protection the FHT grants the Ministry is limited to the extent to which the insurance policies described in section 11.2 respond to claims. The protection does not extend to claims caused by the Ministry. It should be noted that the FHT is responsible for protecting the Ministry for “all claims, causes of actions, demands, liabilities…attributable to anything done or omitted to be done by the Recipient…” This means that the FHT is responsible for any outcome. This is unusual for a commercial agreement. Typically, indemnification is limited to negligence or wilful conduct. Sections 13.1 & 13.2 – Dispute Resolution These provisions state that the FHT is required to have various mechanisms in place to deal with disputes and complaints. In our discussions with the Ministry, the OMA did not understand the need for these mechanisms, as most of the issues would be addressed via governance (e.g., corporate bylaws) and contracts (e.g., employment agreements). However, the Ministry insisted on their inclusion in the Agreement. Thus, each FHT should ensure that appropriate dispute mechanisms are put in place, and if new policies are adopted, that they are consistent with any governing documents and/or contracts. Conclusions As indicated above, the risks inherent to the FHT Funding Agreement are borne by the FHT. In most cases, the FHT is a corporate entity. For the most part, physicians associated with FHTs are inherently protected by corporate FHTs. Each FHT must review the new FHT Funding Agreement to evaluate the level of risk it may be exposed to. If a FHT determines that this Agreement is problematic, the concerns should be brought to the attention of the Ministry to determine whether they can be addressed. It is our understanding that it is unlikely that the Ministry is willing to make any amendments to this Agreement. If this is the case, and the FHT has significant concerns regarding this Agreement, the FHT may have to make a difficult decision as to whether it wishes to continue its participation in the FHT initiative.
Recipient Indemnification. Recipient will indemnify, hold harmless and defend Supplier and its Affiliates and their respective directors, officers and employees (“Indemnified Parties”), from and against any and all liabilities, damages, penalties, judgments, assessments, losses, costs and expenses in any case, whether arising under strict liability or otherwise (including reasonable outside attorneys’ fees) (collectively, “Damages”) suffered or otherwise incurred due to a Third Party Claim arising from or out of or relating to this Agreement, including the performance (or failure to perform) by Supplier of its obligations under this Agreement; provided, however, that to the extent and in the proportion Damages also arise out of or relate to the gross negligence or willful misconduct of any Indemnified Party, then the indemnity under this Section 13.1(a) will not apply.
