Common use of Warranty and Indemnification Clause in Contracts

Warranty and Indemnification. MEGABIOS shall defend, ------------- ---------------------------- indemnify and hold harmless LILLY against any direct loss or injury by reason of any third party action in which it is determined or alleged that LILLY's practice of the inventions claimed in the MEGABIOS Patent Rights, or the use of MEGABIOS Information, or Project Information generated or developed by MEGABIOS, in the Field misappropriates that third party's rights arising out of any contractual obligation on the part of MEGABIOS to such third party. If MEGABIOS is required to pay any such third party a royalty or make any payment of any kind for LILLY's right to use MEGABIOS Patent Rights, MEGABIOS Information, or Project Information in the Field, in a particular country, MEGABIOS shall be solely responsible for the payment of such royalty or other payment. In the event that LILLY is seeking indemnification under this Section 11.5, it shall inform MEGABIOS of a claim as soon as reasonably practicable after it receives notice of the claim, shall permit MEGABIOS to assume direction and control of the defense of the claim (including the right to settle the claim solely for monetary consideration to be paid by or on behalf of MEGABIOS), and shall cooperate as requested (at the expense of MEGABIOS) in the defense of the claim. LILLY may elect at any time to acquire the third party rights and offset payments due to the third party for such rights against royalties due to MEGABIOS pursuant to Sections 11.1 and 11.3, in lieu of the indemnification provided for in this Section 11.5. If, prior to or during the pendency of any action described in the first paragraph of this Section 11.5 LILLY reasonably believes the indemnification provided by MEGABIOS under this Section 11.5 is inadequate due to bankruptcy, insolvency or otherwise, LILLY may withhold payment to MEGABIOS of [ * ] of royalties owed to MEGABIOS in connection with Net Sales in the country(ies) where such third party claims misappropriated rights. Such royalties shall be paid to MEGABIOS upon conclusion of such action, or offset against any outstanding obligation of MEGABIOS to indemnify LILLY, at LILLY's election. [ * ] Certain information on this page has been omitted and filed separately with the Commission. Confidential Treatment has been requested with respect to the omitted portions. Article XII ----------- Indemnification ---------------

Warranty and Indemnification. MEGABIOS shall defendParent represents and warrants that (a) it owns all right, ------------- ---------------------------- indemnify title and hold harmless LILLY interest in and to the Licensed Marks; (b) it has the right to grant the licenses granted in this Agreement; (c) to Parent’s knowledge, there is no pending, existing or threatened opposition or other legal or governmental proceeding before any court or registration authority against or involving the Licensed Marks; (d) except as Parent has disclosed in the Seller Disclosure Schedule of the SPA, no claims have been made by Parent against any direct loss third party alleging that such third party is interfering with, infringing upon or injury by reason misappropriating any of the Licensed Marks; (e) the grant of rights as set forth in Section 2.1 will not require any approval of any Governmental Entity or the consent of any third party action in respect of the Licensed Marks; (f) to Parent’s knowledge, the Acquired Companies’ use of the Licensed Marks pursuant to the terms of this Agreement will not interfere with, infringe upon, dilute or misappropriate any intellectual property right of any third party; (g) as of the Closing Date, there are no settlements, judgments, orders or other agreements which restrict the rights of Parent, and which may restrict the rights of the Acquired Companies, to use the Licensed Marks as permitted under the terms of this Agreement; and (h) the Licensed Marks identified as registered marks include all registered marks used in the Business as of the Closing Date. Parent agrees to indemnify, hold harmless and defend each Acquired Company against any third party claim, demand, cause of action, debt, expense or liability (including reasonable attorney’s fees and costs), to the extent that it is determined or alleged based upon a claim that LILLY's practice as a result of the inventions claimed in material uncured breach of one of the MEGABIOS Patent Rightsforegoing warranties, or the an Acquired Company’s use of MEGABIOS Information, the registered Licensed Marks as permitted in this Agreement is an infringement or Project Information generated or developed by MEGABIOS, in other violation of the Field misappropriates that third party's rights arising out of any contractual obligation on the part of MEGABIOS to such third party. If MEGABIOS is required to pay any such third party a royalty or make any payment of any kind for LILLY's right to use MEGABIOS Patent Rights, MEGABIOS Information, or Project Information in the Field, in a particular country, MEGABIOS shall be solely responsible for the payment of such royalty or other payment. In the event that LILLY is seeking indemnification under this Section 11.5, it shall inform MEGABIOS of an Acquired Company indemnified party has a claim as soon as reasonably practicable after it receives notice for indemnity against Parent under the terms of the claimSPA, the parties shall permit MEGABIOS to assume direction follow the procedures set forth in Section 7.4(a) and control 7.4(b) of the defense of SPA and the claim (including indemnity shall be subject to the right to settle the claim solely for monetary consideration to be paid by or on behalf of MEGABIOS), limits and shall cooperate as requested (at the expense of MEGABIOS) other terms regarding indemnification set forth in the defense of the claim. LILLY may elect at any time to acquire the third party rights and offset payments due to the third party for such rights against royalties due to MEGABIOS pursuant to Sections 11.1 and 11.3, in lieu of the indemnification provided for in SPA as well as this Section 11.5. If, prior to or during the pendency of any action described in the first paragraph of this Section 11.5 LILLY reasonably believes the indemnification provided by MEGABIOS under this Section 11.5 is inadequate due to bankruptcy, insolvency or otherwise, LILLY may withhold payment to MEGABIOS of [ * ] of royalties owed to MEGABIOS in connection with Net Sales in the country(ies) where such third party claims misappropriated rights. Such royalties shall be paid to MEGABIOS upon conclusion of such action, or offset against any outstanding obligation of MEGABIOS to indemnify LILLY, at LILLY's election. [ * ] Certain information on this page has been omitted and filed separately with the Commission. Confidential Treatment has been requested with respect to the omitted portions. Article XII ----------- Indemnification ---------------Agreement.

Warranty and Indemnification. MEGABIOS Parkdale represents and warrants as follows: (1) the Yarn delivered hereunder shall conform in all material respects to the Specifications and applicable laws, rules and regulations and shall be manufactured, produced and shipped in accordance with the Specifications and applicable laws, rules and regulations; (2) the Yarn shall be free from defects in materials and workmanship and that, at the time of delivery, Parkdale shall have good title and right to transfer and sell the same and that the same shall be delivered free of encumbrances; and (3) the Yarn shall be free from the claim of any person or entity arising from patent, trade secret, trademark, copyright or other proprietary or intellectual property right infringement except to the extent that any such claim arises as a result of the Specifications or other instructions provided to Parkdale by Delta. If Parkdale fails to deliver any Yarn hereunder free of encumbrances, Delta may reject such Yarn pursuant to SECTION 6 or Delta may, upon written notice to Parkdale, require that Parkdale, at its expense, defend the title thereto and promptly cause any security interest, claim, demand, lien, or other encumbrance to be removed. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 5, PARKDALE MAKES NO OTHER WARRANTIES OF QUALITY, AND PARKDALE HEREBY DISCLAIMS ALL OTHER WARRANTIES OF QUALITY, WHETHER EXPRESS OR IMPLIED, WHETHER CREATED BY CONTRACT OR BY OPERATION OF LAW, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. Parkdale shall defend, ------------- ---------------------------- indemnify and hold harmless LILLY Delta from and against any direct loss or injury and all damages, claims, losses, expenses, costs, obligations, and liabilities, including without limiting the generality of the foregoing, liabilities for reasonable and documented attorney's fees (“Claims”), suffered by Delta directly by reason of any third party action in which it is determined or alleged that LILLY's practice of the inventions claimed in the MEGABIOS Patent Rights, or the use of MEGABIOS Information, or Project Information generated or developed by MEGABIOS, in the Field misappropriates that third party's rights arising out of any contractual obligation on the part of MEGABIOS to such third party. If MEGABIOS is required to pay any such third party a royalty or make any payment breach of any kind for LILLYrepresentation or warranty made by Parkdale under this Agreement, except to the extent that any Claim arises as a result of Delta's right to use MEGABIOS Patent Rightsnegligence, MEGABIOS Informationbad faith or willful misconduct. Delta shall defend, indemnify and hold harmless Parkdale from and against any Claims brought against or Project Information in incurred by Parkdale caused by the Field, in a particular country, MEGABIOS shall be solely responsible for the payment of such royalty Specifications or other payment. In the event that LILLY is seeking indemnification under this Section 11.5, it shall inform MEGABIOS of a claim as soon as reasonably practicable after it receives notice of the claim, shall permit MEGABIOS to assume direction and control of the defense of the claim (including the right to settle the claim solely for monetary consideration to be paid by or on behalf of MEGABIOS), and shall cooperate as requested (at the expense of MEGABIOS) in the defense of the claim. LILLY may elect at any time to acquire the third party rights and offset payments due to the third party for such rights against royalties due to MEGABIOS pursuant to Sections 11.1 and 11.3, in lieu of the indemnification provided for in this Section 11.5. If, prior to or during the pendency of any action described in the first paragraph of this Section 11.5 LILLY reasonably believes the indemnification explicit written instructions provided by MEGABIOS under this Section 11.5 is inadequate due Delta to bankruptcy, insolvency or otherwise, LILLY may withhold payment to MEGABIOS of [ * ] of royalties owed to MEGABIOS Parkdale in connection with Net Sales in the country(ies) where such third party claims misappropriated rights. Such royalties shall be paid to MEGABIOS upon conclusion supply of such actionYarn under this Agreement, or offset against any outstanding obligation of MEGABIOS to indemnify LILLY, at LILLY's election. [ * ] Certain information on this page has been omitted and filed separately with the Commission. Confidential Treatment has been requested with respect except to the omitted portions. Article XII ----------- Indemnification ---------------extent that any Claim arises as a result of Parkdale's negligence, bad faith or willful misconduct.

Warranty and Indemnification. MEGABIOS Parkdale represents and warrants as follows: (1) the Yarn delivered hereunder shall conform in all material respects to the Specifications and applicable laws, rules and regulations and shall be manufactured, produced and shipped in accordance with the Specifications and applicable laws, rules and regulations; (2) the Yarn shall be free from defects in materials and workmanship and that, at the time of delivery, Parkdale shall have good title and right to transfer and sell the same and that the same shall be delivered free of encumbrances; and (3) the Yarn shall be free from the claim of any person or entity arising from patent, trade secret, trademark, copyright or other proprietary or intellectual property right infringement except to the extent that any such claim arises as a result of the Specifications or other instructions provided to Parkdale by Delta. If Parkdale fails to deliver any Yarn hereunder free of encumbrances, Delta may reject such Yarn pursuant to SECTION 6 or Delta may, upon written notice to Parkdale, require that Parkdale, at its expense, defend the title thereto and promptly cause any security interest, claim, demand, lien, or other encumbrance to be removed. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 5, PARKDALE MAKES NO OTHER WARRANTIES OF QUALITY, AND PARKDALE HEREBY DISCLAIMS ALL OTHER WARRANTIES OF QUALITY, WHETHER EXPRESS OR IMPLIED, WHETHER CREATED BY CONTRACT OR BY OPERATION OF LAW, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. Parkdale shall defend, ------------- ---------------------------- indemnify and hold harmless LILLY Delta from and against any direct loss or injury and all damages, claims, losses, expenses, costs, obligations, and liabilities, including without limiting the generality of the foregoing, liabilities for reasonable and documented attorney's fees (“Claims”), suffered by Delta directly by reason of any third party action in which it is determined or alleged that LILLY's practice of the inventions claimed in the MEGABIOS Patent Rights, or the use of MEGABIOS Information, or Project Information generated or developed by MEGABIOS, in the Field misappropriates that third party's rights arising out of any contractual obligation on the part of MEGABIOS to such third party. If MEGABIOS is required to pay any such third party a royalty or make any payment breach of any kind for LILLY's right representation or warranty made by Parkdale under this Agreement, except to use MEGABIOS Patent Rightsthe extent that any Claim arises as a result of Delta’s negligence, MEGABIOS Informationbad faith or willful misconduct. Delta shall defend, indemnify and hold harmless Parkdale from and against any Claims brought against or Project Information in incurred by Parkdale caused by the Field, in a particular country, MEGABIOS shall be solely responsible for the payment of such royalty Specifications or other payment. In the event that LILLY is seeking indemnification under this Section 11.5, it shall inform MEGABIOS of a claim as soon as reasonably practicable after it receives notice of the claim, shall permit MEGABIOS to assume direction and control of the defense of the claim (including the right to settle the claim solely for monetary consideration to be paid by or on behalf of MEGABIOS), and shall cooperate as requested (at the expense of MEGABIOS) in the defense of the claim. LILLY may elect at any time to acquire the third party rights and offset payments due to the third party for such rights against royalties due to MEGABIOS pursuant to Sections 11.1 and 11.3, in lieu of the indemnification provided for in this Section 11.5. If, prior to or during the pendency of any action described in the first paragraph of this Section 11.5 LILLY reasonably believes the indemnification explicit written instructions provided by MEGABIOS under this Section 11.5 is inadequate due Delta to bankruptcy, insolvency or otherwise, LILLY may withhold payment to MEGABIOS of [ * ] of royalties owed to MEGABIOS Parkdale in connection with Net Sales in the country(ies) where such third party claims misappropriated rights. Such royalties shall be paid to MEGABIOS upon conclusion supply of such actionYarn under this Agreement, or offset against any outstanding obligation of MEGABIOS to indemnify LILLY, at LILLY's election. [ * ] Certain information on this page has been omitted and filed separately with the Commission. Confidential Treatment has been requested with respect except to the omitted portions. Article XII ----------- Indemnification ---------------extent that any Claim arises as a result of Parkdale’s negligence, bad faith or willful misconduct.