Common use of WARRANTY, LIABILITY AND INDEMNIFICATION Clause in Contracts

WARRANTY, LIABILITY AND INDEMNIFICATION. 9.1 Licensor warrants that the Services, when operated in accordance with the Documentation, will substantially conform to the Documentation during the term of the Order. Except as expressly stated in this subsection: (a) no warranties, guarantees or assurances of any kind, express or implied (in law or in fact), are made by Licensor to Licensee, including any implied warranties of merchantability, quality or fitness for any particular purpose, which are specifically excluded; and (b) Licensor does not warrant that any information, computer program, software or Services provided by Licensor or any third-party provider will fulfil any of Licensee’s particular purposes or needs, nor does Licensor warrant that access to or operation of the Services will be uninterrupted or defect-free. 9.2 Except in relation to death or personal injury caused by the negligence of Licensor or any other liability which may not be excluded or limited at law, Licensor shall not be liable to Licensee for loss of profits, loss of contracts or any indirect or consequential loss arising from negligence, breach of contract or howsoever caused. Licensor's total liability under this EULA in aggregate shall be limited to the annual fees payable by Licensee to Licensor under the Order for the provision of the Services. 9.3 Licensor shall indemnify Licensee against any claim that the normal use of the Services is a direct infringement of the intellectual property rights of any third party in the Territory provided that Licensee: (a) provides prompt notice of the claim to Licensor; (b) does not prejudice Licensor’s defence of such claim; and (c) gives Licensor all reasonable assistance and grants sole authority to control the defence and any related settlement of any such claim. 9.4 Licensee will defend, indemnify, and hold Licensor harmless from and against all claims, demands, actions, suits, discovery demands, including, without limitation, third party subpoenas, government investigations or enforcement actions brought against Licensor by a third party and any damages, liabilities, losses, settlements, judgments, costs and expenses (including, without limitation, attorney’s fees and costs) related thereto alleging that: 9.4.1 Licensee’s use of any feature of the Services is in violation of Licensee’s contractual, regulatory, or other legal obligations; 9.4.2 Licensor’s use of any Licensee Data as permitted by this XXXX infringes or misappropriates: (a) a third party’s intellectual property rights, or (b) a Non-Licensor Application provided by Licensee; or 9.4.3 the combination of any Non-Licensor Application provided by Licensee and used with the Services, infringes or misappropriates any third party’s intellectual property rights.

Appears in 1 contract

Samples: End User License Agreement

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WARRANTY, LIABILITY AND INDEMNIFICATION. 9.1 Licensor warrants 12.1 DSM Biologics does not grant any warranty, either expressed or implied, legal or conventional, with regard to the Project other than as explicitly contained or incorporated in this Agreement and disclaims all implied warranties of merchantability and fitness for a particular purpose except to the extent of DSM Biologics' own processes and facilities. DSM Biologics in particular does not warrant, either expressed or implied, that the Services, when operated performance by it of the activities contemplated by the Project in accordance with this Agreement will not infringe upon Intellectual Property Rights of any third party. 12.2 DSM Biologics shall indemnify, defend and hold harmless CYTOGEN against and in respect of any and all Claims arising out of or based upon: i) the Documentationbreach by DSM Biologics of any representations, will substantially conform warranties, covenants or terms contained or incorporated in this Agreement; or ii) any gross negligence or willful misconduct by DSM Biologics or its employees, agents, sub-contractors or suppliers of raw materials in connection with the performance of the Project; except to the Documentation during the term extent of the Order. Except as expressly stated in this subsection: (a) no warranties, guarantees Claims being due to CYTOGEN's or assurances of any kind, express its supplier's negligence or implied (in law or in fact), are made by Licensor to Licensee, including any implied warranties of merchantability, quality or fitness for any particular purpose, which are specifically excluded; fault and (b) Licensor does not warrant provided that any information, computer program, software or Services provided by Licensor or any third-party provider will fulfil any of Licensee’s particular purposes or needs, nor does Licensor warrant that access to or operation of the Services will be uninterrupted or defect-free. 9.2 Except in relation to death or personal injury caused by the negligence of Licensor or any other liability which may not be excluded or limited at law, Licensor DSM Biologics shall not be liable to Licensee for loss of profitsany consequential, loss of contracts or any indirect or consequential loss arising from negligenceexemplary damages suffered by CYTOGEN and provided further that the total of any damages, breach other than as to Claims against CYTOGEN for personal injury, to be paid by DSM Biologics shall not exceed the Price. DSM Biologics shall, at the request of contract CYTOGEN, assume the defense of any demand, claim, action, suit or howsoever caused. Licensor's total liability under this EULA in aggregate proceeding brought against CYTOGEN by reason of the foregoing and shall be limited pay any and all damages up to the annual fees Price that are assessed or that are payable by Licensee to Licensor under the Order for the provision CYTOGEN as a result of the Services. 9.3 Licensor shall indemnify Licensee against any claim that the normal use of the Services is a direct infringement of the intellectual property rights of any third party in the Territory provided that Licensee: (a) provides prompt notice of the claim to Licensor; (b) does not prejudice Licensor’s defence of such claim; and (c) gives Licensor all reasonable assistance and grants sole authority to control the defence and any related settlement disposition of any such demand, claim, action, suit or proceeding. Notwithstanding the foregoing, CYTOGEN may be represented in any such action, suit or proceeding at its own expense and by its own counsel. 9.4 Licensee will defend, 12.3 CYTOGEN shall indemnify, defend and hold Licensor harmless DSM Biologics against and in respect of any and all Claims arising out of or based upon: i) the breach by CYTOGEN of any representations, warranties, covenants or terms contained or incorporated in this Agreement; or ii) any gross negligence or willful misconduct by CYTOGEN or its employees, agents, or suppliers of raw materials in connection with the performance of the Project; except to the extent of Claims being due to DSM Biologics' or its supplier's negligence or fault and provided that CYTOGEN shall not be liable for any consequential, indirect or exemplary damages suffered by DSM Biologics and provided further that the total of any damages, other than as to Claims against DSM Biologics for personal injury, to be paid by CYTOGEN shall not exceed the Price. 12.4 CYTOGEN shall, at the request of DSM Biologics' assume the defense of any demand, claim, action, suit or proceeding brought against DSM Biologics by reason of the foregoing and shall pay any and all damages up to the Price that are assessed or that are payable by DSM Biologics as a result of the disposition of any such demand, claim, action, suit or proceeding. Notwithstanding the foregoing, DSM Biologics may be represented in any such action, suit or proceeding at its own expense and by its own counsel. Furthermore, CYTOGEN agrees to indemnify DSM Biologics and save and hold it harmless from and against all claimsany Claims which DSM Biologics is or may become liable for or may incur or may be called upon to pay or may pay and that result from or are alleged to result from the infringement of any Intellectual Property Rights through the use by DSM Biologics or its subcontractors of CYTOGEN Technology, demandsor the development, actionsuse or manufacturing by DSM Biologics or its subcontractors of the Process or the Product, suitsprovided that DSM Biologics notifies CYTOGEN immediately of any demand, discovery demandsclaim, includingaction, without limitationsuit or other proceeding. CYTOGEN shall however not be liable to indemnify or hold harmless DSM Biologics for payment of any settlement unless . : CYTOGEN has consented to the settlement. CYTOGEN shall, third party subpoenasat the request of DSM Biologics, government investigations assume the defense of any demand, claim, action, suit or enforcement actions proceeding brought against Licensor DSM Biologics by reason of the foregoing and pay any and all damages assessed or that are payable by DSM Biologics as a third party and any damages, liabilities, losses, settlements, judgments, costs and expenses (including, without limitation, attorney’s fees and costs) related thereto alleging that: 9.4.1 Licensee’s use result of the disposition of any feature such demand, claim, action, suit or proceeding. Notwithstanding the foregoing, DSM Biologics may be represented in any such action, suit or proceeding at its own expense and by its own counsel. 12.5 DSM Biologics agrees to indemnify CYTOGEN and save and hold it harmless from and against any Claims which CYTOGEN is or may become liable for or may incur or may be called upon to pay or may pay and that result from or are alleged to result from the infringement of any Intellectual Property Rights through the use by DSM Biologics or its subcontractors of DSM Biologics Technology for the Project, provided that CYTOGEN notifies DSM Biologics immediately of any demand, claim, action, suit or other proceeding. DSM Biologics shall however not be liable to indemnify or hold harmless CYTOGEN for payment of any settlement unless DSM Biologics has consented to the settlement. DSM Biologics shall, at the request of CYTOGEN, assume the defense of any demand, claim, action, suit or proceeding brought against CYTOGEN by reason of the Services is in violation foregoing and pay any and all damages assessed or that are payable by CYTOGEN as a result of Licensee’s contractual, regulatory, or other legal obligations; 9.4.2 Licensor’s use the disposition of any Licensee Data as permitted such demand, claim, action, suit or proceeding. Notwithstanding the foregoing. CYTOGEN may be represented in any such action, suit or proceeding at its own expense and by this XXXX infringes or misappropriates: (a) a third party’s intellectual property rights, or (b) a Non-Licensor Application provided by Licensee; or 9.4.3 the combination of any Non-Licensor Application provided by Licensee and used with the Services, infringes or misappropriates any third party’s intellectual property rightsits own counsel.

Appears in 1 contract

Samples: Development and Manufacturing Agreement (Cytogen Corp)

WARRANTY, LIABILITY AND INDEMNIFICATION. 9.1 Licensor warrants that the Services11.1 Epro does not grant any warranty, when operated in accordance either expressed or implied, legal or conventional, with the Documentation, will substantially conform regard to the Documentation during the term of the Order. Except Project other than as expressly stated explicitly contained or incorporated in this subsection: (a) no warranties, guarantees or assurances of any kind, express or implied (in law or in fact), are made by Licensor to Licensee, including any Agreement and disclaims all implied warranties of merchantability, quality or merchantability and fitness for any a particular purpose, which are specifically excluded; and (b) Licensor does not warrant that any information, computer program, software or Services provided by Licensor or any third-party provider will fulfil any of Licensee’s particular purposes or needs, nor does Licensor warrant that access to or operation of the Services will be uninterrupted or defect-free. 9.2 Except in relation to death or personal injury caused by the negligence of Licensor or any other liability which may not be excluded or limited at law, Licensor 11.2 Epro shall not be liable to Licensee for loss of profits, loss of contracts or any indirect or consequential loss arising from negligence, breach of contract or howsoever caused. Licensor's total liability under this EULA in aggregate shall be limited to the annual fees payable by Licensee to Licensor under the Order for the provision of the Services. 9.3 Licensor shall indemnify Licensee against any claim that the normal use of the Services is a direct infringement of the intellectual property rights of any third party in the Territory provided that Licensee: (a) provides prompt notice of the claim to Licensor; (b) does not prejudice Licensor’s defence of such claim; and (c) gives Licensor all reasonable assistance and grants sole authority to control the defence and any related settlement of any such claim. 9.4 Licensee will defend, indemnify, defend and hold Licensor harmless BioMarin against and from any and against all claims, demands, actionslosses, suits, discovery demands, including, without limitation, third party subpoenas, government investigations or enforcement actions brought against Licensor by a third party and any damagesobligations, liabilities, lossesdamages, deficiencies, actions, settlements, judgments, costs and expenses which BioMarin may incur or suffer (includingincluding reasonable costs and legal fees incident thereto or in seeking indemnification therefore), without limitation, attorney’s fees and costs(jointly “Claims”) related thereto alleging that: 9.4.1 Licensee’s use arising out of any feature of the Services is in violation of Licensee’s contractual, regulatory, or other legal obligations; 9.4.2 Licensor’s use of any Licensee Data as permitted by this XXXX infringes or misappropriatesbased upon: (a) a third party’s intellectual property rightsthe breach by Epro of any of its representations, warranties, covenants or obligations contained or incorporated in this Agreement; or (b) a Nonany gross negligence or willful misconduct by Epro or its employees, agents, sub-Licensor Application provided by Licenseecontractors or suppliers of raw materials in connection with the performance of the Project; or 9.4.3 the combination of any Non-Licensor Application provided by Licensee and used with the Services, infringes (c) alleged to result from or misappropriates any resulting from Epro Proprietary Information infringing on a third party’s intellectual property rightsright; except to the extent of Claims being due primarily to BioMarin’s or its supplier’s gross negligence willful misconduct; provided, however, that IN NO EVENT WILL EPRO BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT OR EXEMPLARY DAMAGES SUFFERED BY BIOMARIN. Epro shall, at the request of BioMarin, assume the defense of any Claim brought against BioMarin by reason of the foregoing, using counsel reasonably acceptable to BioMarin, and shall pay any and all damages assessed or that are payable by BioMarin as a result of the disposition of any such Claim. Notwithstanding the foregoing, BioMarin may be represented in any such action, suit or proceeding by its own counsel. Such separate counsel shall be at the expense of BioMarin unless: (a) the use of counsel chosen by Epro to represent BioMarin would present such counsel with a conflict of interest, as reasonably determined by BioMarin’s counsel; or (ii) the actual or potential defendants in, or targets of, any such action include both Epro and BioMarin and BioMarin’s counsel shall have reasonably concluded that there may be legal defenses available to BioMarin that are different from or additional to those available to Epro. Portions of this document have been redacted pursuant to a Request for Confidential Treatment. Redacted portions are indicated with the notation “[*****]” 11.3 BioMarin shall indemnify, defend and hold harmless Epro against and from any and all Claims arising out of or based upon: (a) the breach by BioMarin of any of its representations, warranties, covenants or obligations contained or incorporated in this Agreement; or (b) any gross negligence or willful misconduct by BioMarin or its employees, agents, or suppliers of raw materials in connection with the performance of the Project; or (c) alleged to result from or resulting from BioMarin Proprietary Information infringing on a third party’s right; except to the extent of Claims being due primarily to Epro’s or its supplier’s gross negligence willful misconduct; provided, however, that IN NO EVENT WILL BIOMARIN BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT OR EXEMPLARY DAMAGES SUFFERED BY EPRO. BioMarin shall, at the request of Epro, assume the defense of any Claim brought against Epro by reason of the foregoing, using counsel reasonably acceptable to Epro, and shall pay any and all damages assessed or that are payable by Epro as a result of the disposition of any such Claim. Notwithstanding the foregoing, Epro may be represented in any such action, suit or proceeding by its own counsel. Such separate counsel shall be at the expense of Epro unless: (a) the use of counsel chosen by BioMarin to represent Epro would present such counsel with a conflict of interest, as reasonably determined by Epro’s counsel; or (ii) the actual or potential defendants in, or targets of, any such action include both Epro and BioMarin and Epro’s counsel shall have reasonably concluded that there may be legal defenses available to Epro that are different from or additional to those available to BioMarin. During the term of this Agreement, each of Epro and BioMarin shall procure and maintain a third party and product liability insurance policy with an insurer reasonably acceptable to the other Party, on which the non-procuring Party is named as an additional insured, with loss limits of at least $10,000,000 per claim with no limits on claims in a year, and provide the non-procuring Party with a certificate from the insurer providing full information on the insurance policy on commencement of this Agreement and at the renewal dates of the policy or its replacement. 11.4 During the term of this Agreement and for a period of two (2) years thereafter, except in compliance with portions of the Commercial Supply and License Agreement that will be included as contemplated by the section of the Term Sheet titled “Other fields/indications of Portions of this document have been redacted pursuant to a Request for Confidential Treatment. Redacted portions are indicated with the notation “[*****]” use” each of Epro and its officers and directors will not, directly or indirectly, solicit or encourage any inquires or proposals or enter into or continue any discussions, negotiations or agreements relating to the development, manufacture or supply of the Product for use in the production of a pharmaceutical product (including any Agreements with any Affiliates) in BioMarin’s Field of Use, with any person other than BioMarin or its affiliates, or provide any assistance or any information to or otherwise cooperate with any person in connection with such inquiry, proposal or transaction. In addition, except in compliance with portions of the Commercial Supply and License Agreement that will be included as contemplated by the section of the Term Sheet titled “Other fields/indications of use,” Epro may not transfer or assign any of the Project Intellectual Property Rights to any third party without BioMarin’s written consent, which may be withheld for any reason whatsoever . Without limiting BioMarin’s ability to recover any other damages that may be caused by Epro’s breach of the restrictions in this Section 11.4, in the event Epro breaches its obligations above, Epro shall immediately refund all payments made by BioMarin pursuant to Section 6.2.

Appears in 1 contract

Samples: Development and Initial Supply Agreement

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WARRANTY, LIABILITY AND INDEMNIFICATION. 9.1 Licensor warrants that the Services11.1 Epro does not grant any warranty, when operated in accordance either expressed or implied, legal or conventional, with the Documentation, will substantially conform regard to the Documentation during the term of the Order. Except Project other than as expressly stated explicitly contained or incorporated in this subsection: (a) no warranties, guarantees or assurances of any kind, express or implied (in law or in fact), are made by Licensor to Licensee, including any Agreement and disclaims all implied warranties of merchantability, quality or merchantability and fitness for any a particular purpose, which are specifically excluded; and (b) Licensor does not warrant that any information, computer program, software or Services provided by Licensor or any third-party provider will fulfil any of Licensee’s particular purposes or needs, nor does Licensor warrant that access to or operation of the Services will be uninterrupted or defect-free. 9.2 Except in relation to death or personal injury caused by the negligence of Licensor or any other liability which may not be excluded or limited at law, Licensor 11.2 Epro shall not be liable to Licensee for loss of profits, loss of contracts or any indirect or consequential loss arising from negligence, breach of contract or howsoever caused. Licensor's total liability under this EULA in aggregate shall be limited to the annual fees payable by Licensee to Licensor under the Order for the provision of the Services. 9.3 Licensor shall indemnify Licensee against any claim that the normal use of the Services is a direct infringement of the intellectual property rights of any third party in the Territory provided that Licensee: (a) provides prompt notice of the claim to Licensor; (b) does not prejudice Licensor’s defence of such claim; and (c) gives Licensor all reasonable assistance and grants sole authority to control the defence and any related settlement of any such claim. 9.4 Licensee will defend, indemnify, defend and hold Licensor harmless BioMarin against and from any and against all claims, demands, actionslosses, suits, discovery demands, including, without limitation, third party subpoenas, government investigations or enforcement actions brought against Licensor by a third party and any damagesobligations, liabilities, lossesdamages, deficiencies, actions, settlements, judgments, costs and expenses which BioMarin may incur or suffer (includingincluding reasonable costs and legal fees incident thereto or in seeking indemnification therefore), without limitation, attorney’s fees and costs(jointly “Claims”) related thereto alleging that: 9.4.1 Licensee’s use arising out of any feature of the Services is in violation of Licensee’s contractual, regulatory, or other legal obligations; 9.4.2 Licensor’s use of any Licensee Data as permitted by this XXXX infringes or misappropriatesbased upon: (a) a third party’s intellectual property rightsthe breach by Epro of any of its representations, warranties, covenants or obligations contained or incorporated in this Agreement; or (b) a Nonany gross negligence or willful misconduct by Epro or its employees, agents, sub-Licensor Application provided by Licenseecontractors or suppliers of raw materials in connection with the performance of the Project; or 9.4.3 the combination of any Non-Licensor Application provided by Licensee and used with the Services, infringes (c) alleged to result from or misappropriates any resulting from Epro Proprietary Information infringing on a third party’s intellectual property rightsright; except to the extent of Claims being due primarily to BioMarin’s or its supplier’s gross negligence willful misconduct; provided, however, that IN NO EVENT WILL EPRO BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT OR EXEMPLARY DAMAGES SUFFERED BY BIOMARIN. Epro shall, at the request of BioMarin, assume the defense of any Claim brought against BioMarin by reason of the foregoing, using counsel reasonably acceptable to BioMarin, and shall pay any and all damages assessed or that are payable by BioMarin as a result of the disposition of any such Claim. Notwithstanding the foregoing, BioMarin may be represented in any such action, suit or proceeding by its own counsel. Such separate counsel shall be at the expense of BioMarin unless: (a) the use of counsel chosen by Epro to represent BioMarin would present such counsel with a conflict of interest, as reasonably determined by BioMarin’s counsel; or (ii) the actual or potential defendants in, or targets of, any such action include both Epro and BioMarin and BioMarin’s counsel shall have reasonably concluded that there may be legal defenses available to BioMarin that are different from or additional to those available to Epro. 11.3 BioMarin shall indemnify, defend and hold harmless Epro against and from any and all Claims arising out of or based upon: (a) the breach by BioMarin of any of its representations, warranties, covenants or obligations contained or incorporated in this Agreement; or (b) any gross negligence or willful misconduct by BioMarin or its employees, agents, or suppliers of raw materials in connection with the performance of the Project; or (c) alleged to result from or resulting from BioMarin Proprietary Information infringing on a third party’s right; except to the extent of Claims being due primarily to Epro’s or its supplier’s gross negligence willful misconduct; provided, however, that IN NO EVENT WILL BIOMARIN BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT OR EXEMPLARY DAMAGES SUFFERED BY EPRO. BioMarin shall, at the request of Epro, assume the defense of any Claim brought against Epro by reason of the foregoing, using counsel reasonably acceptable to Epro, and shall pay any and all damages assessed or that are payable by Epro as a result of the disposition of any such Claim. Notwithstanding the foregoing, Epro may be represented in any such action, suit or proceeding by its own counsel. Such separate counsel shall be at the expense of Epro unless: (a) the use of counsel chosen by BioMarin to represent Epro would present such counsel with a conflict of interest, as reasonably determined by Epro’s counsel; or (ii) the actual or potential defendants in, or targets of, any such action include both Epro and BioMarin and Epro’s counsel shall have reasonably concluded that there may be legal defenses available to Epro that are different from or additional to those available to BioMarin. During the term of this Agreement, each of Epro and BioMarin shall procure and maintain a third party and product liability insurance policy with an insurer reasonably acceptable to the other Party, on which the non-procuring Party is named as an additional insured, with loss limits of at least $10,000,000 per claim with no limits on claims in a year, and provide the non-procuring Party with a certificate from the insurer providing full information on the insurance policy on commencement of this Agreement and at the renewal dates of the policy or its replacement. 11.4 During the term of this Agreement and for a period of two (2) years thereafter, except in compliance with portions of the Commercial Supply and License Agreement that will be included as contemplated by the section of the Term Sheet titled “Other fields/indications of use” each of Epro and its officers and directors will not, directly or indirectly, solicit or encourage any inquires or proposals or enter into or continue any discussions, negotiations or agreements relating to the development, manufacture or supply of the Product for use in the production of a pharmaceutical product (including any Agreements with any Affiliates) in BioMarin’s Field of Use, with any person other than BioMarin or its affiliates, or provide any assistance or any information to or otherwise cooperate with any person in connection with such inquiry, proposal or transaction. In addition, except in compliance with portions of the Commercial Supply and License Agreement that will be included as contemplated by the section of the Term Sheet titled “Other fields/indications of use,” Epro may not transfer or assign any of the Project Intellectual Property Rights to any third party without BioMarin’s written consent, which may be withheld for any reason whatsoever . Without limiting BioMarin’s ability to recover any other damages that may be caused by Epro’s breach of the restrictions in this Section 11.4, in the event Epro breaches its obligations above, Epro shall immediately refund all payments made by BioMarin pursuant to Section 6.2.

Appears in 1 contract

Samples: Development and Initial Supply Agreement (Biomarin Pharmaceutical Inc)

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