Representations Warranties and Indemnification. 10.1 RCC represents and warrants that: (a) it has full power and authority to enter into this Agreement; (b) it has the right, under its agreements with its suppliers and manufacturers, to sell the RCC Products to RII for further resale by RII to end users; (c) it either owns or has a valid license to use the RCC Marks and Related Content and has sufficient right and authority to grant to RII all licenses and rights granted by RCC hereunder; (d) the RCC Marks and Related Content and the use thereof as permitted pursuant to this Agreement will not violate any law or infringe upon or violate any rights of any Person; (e) the execution, delivery and performance by RCC of this Agreement will not conflict with, or result in a breach or termination of or constitute a default under, any lease, agreement, commitment or other instrument to which RCC is a party; (f) it has not represented to any Person that RCC is an agent or representative of RII for any purpose and will not do so during the Term; (g) it has not represented to any Person that RCC and RII are not separate entities and will not do so during the Term; (h) it has not represented to any Person that RCC is a subsidiary or parent of RII and will not do so during the Term; (i) it has not represented to any Person that RCC and RII do not operate separate businesses and will not do so during the Term; and (j) this Agreement constitutes the valid and binding obligations of RCC enforceable against it in accordance with its terms. 10.2 RII represents and warrants that: (a) it has the full power and authority to enter into and fully perform this Agreement; (b) this Agreement constitutes the valid and binding obligations of RII enforceable against it in accordance with its terms; (c) the execution, delivery and performance by RII of this Agreement will not conflict with, or result in a breach or termination of or constitute a default under, any lease, agreement, commitment or other instrument to which RII is a party; (d) it has not represented to any Person that RCC is an agent or representative of RII for any purpose and will not do so during the Term; (e) it has not represented to any Person that RCC and RII are not separate entities and will not do so during the Term; (f) it has not represented to any Person that RCC is a subsidiary or parent of RII and will not do so during the Term; (g) it has not represented to any Person that RCC and RII do not operate separate businesses and will not do so during the Term; and (h) the RII Network will be maintained and operated in material compliance with all applicable federal, state, local and foreign laws. 10.3 RII shall defend, indemnify, and hold RCC harmless from, against, and in respect of any and all claims, costs, expenses (including reasonable fees of counsel), liabilities, obligations, losses, damages, actions, suits or proceedings, of any nature (i) arising in connection with the breach of this Agreement by RII; (ii) arising from or in connection with the assertion against RCC of any claim, whether at law or in equity, in contract or in tort, or arising under or by virtue of any statute, regulation or common law theory of liability, including any claim for payment or performance of any obligation, debt, or liability, whether fixed or contingent, in connection with RII's use of the RCC Marks and/or Related Content, (iii) resulting from the negligence or willful misconduct of RII, its officers, directors, employees, agents or contractors, (iv) resulting from, or arising out of any RII Customer Sales/Use Tax Event (as such term is defined in SECTION 9.3), or (v) arising from or in connection with the assertion against RCC of any claim, whether at law or in equity, in contract or in tort, associated with the sale of RCC Products or RCC Auction Products by RII, but excluding any such claim that arises from any conduct or omission of RCC. Notwithstanding the foregoing, RII shall not have any obligation to RCC under this SECTION 10.3 with respect to any claims arising in connection with a breach by RCC of its representations in SECTION 10.1(d), or if such claim is a result of RCC providing an infringing or defective product. 10.4 RCC shall defend, indemnify, and hold RII harmless from, against, and in respect of any and all claims, costs, expenses (including reasonable fees of counsel), liabilities, obligations, losses, damages, actions, suits or proceedings, of any nature (i) arising in connection with the breach of this Agreement by RCC (including, but not limited to any claims arising in connection with a breach by RCC of its representations in SECTION 10.1(d)); (ii) arising from or in connection with the assertion against RII of any claim, whether at law or in equity, in contract or in tort, or arising under or by virtue of any statute, regulation or common law theory of liability, including any claim for payment or performance of any obligation, debt, or liability, whether fixed or contingent, in connection with RCC's use of the RCC Marks and/or Related Content; or (iii) resulting from the negligence or willful misconduct of RCC, its officers, directors, employees, agents or contractors. 10.5 With respect to any claim made by party pursuant to SECTION 10.3 or SECTION 10.4 (each such claim is referred to herein as a "Claim"), the party obligated to provide indemnification hereunder (the "Indemnifying Party") shall, at its expense, have the right to participate in, and, at its option, to assume the defense of each such Claim. Promptly upon becoming aware of such Claim, the party entitled to indemnification hereunder (the "Indemnified Party"), shall give the Indemnifying Party written notice thereof; provided, however, that the failure of the Indemnified Party to notify the Indemnifying Party of a Claim shall not relieve the Indemnifying Party of any liability it may have to the Indemnified Party, except to the extent that the Indemnifying Party is actually prejudiced by such failure. If the Indemnifying Party elects to assume the defense of a Claim, following its written notice of such election to the Indemnified Party, the Indemnifying Party shall not be liable to the Indemnified Party in connection with any costs incurred by the Indemnified Party after the date of such notice for the defense of such Claim. Any settlement of any Claim by the Indemnifying Party shall not require the consent of the Indemnified Party so long as the settlement includes a full release of the Indemnified Party with respect to the Claim. Once the Indemnifying Party has assumed the defense of a Claim, so long as the Indemnifying Party is reasonably pursuing the defense of the Claim, the Indemnified Party shall not settle any such Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the right of the Indemnifying Party to assume the defense of any Claim, the Indemnified Party shall have the right, at its expense, to employ separate counsel and to participate in the defense of such Claim. 10.6 The indemnification obligations and procedures set forth in SECTIONS 10.3 - 10.5 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Second Amended and Restated Agreement (Ritz Interactive, Inc.)
Representations Warranties and Indemnification. 10.1 RCC 5.01 Grace represents and warrants that:
(a) it Grace owns all rights, title and interest in and to the Patent Rights and Related Technology;
(b) As of the date of the Option Agreement (May 1, 1998), Grace was not aware of any patent or other intellectual property rights of third parties which would be infringed by practice of the Patent Rights or Related Technology;
(c) Grace has full power and authority the right to enter into this Agreement;
(b) it has the right, under its agreements with its suppliers and manufacturers, to sell fully comply with the RCC Products to RII for further resale by RII to end users;
(c) it either owns or has a valid license to use the RCC Marks terms and Related Content conditions of this Agreement and has sufficient right and authority to grant to RII all BioMarin the rights and licenses and rights granted by RCC hereunder;herein; and
(d) the RCC Marks and Related Content and the use thereof as permitted pursuant to this Agreement will not violate any law or infringe upon or violate any rights of any Person;
(e) the execution, delivery and performance by RCC of this Agreement will not conflict with, or result in a breach or termination of or constitute a default under, any lease, agreement, commitment or other instrument to which RCC is a party;
(f) it Grace has not represented to executed any Person agreement or contract that RCC is an agent or representative of RII for any purpose inconsistent with the rights and will not do so during the Term;
(g) it has not represented to any Person that RCC and RII are not separate entities and will not do so during the Term;
(h) it has not represented to any Person that RCC is a subsidiary or parent of RII and will not do so during the Term;
(i) it has not represented to any Person that RCC and RII do not operate separate businesses and will not do so during the Term; and
(j) this Agreement constitutes the valid and binding obligations of RCC enforceable against it in accordance with its termslicenses granted hereunder.
10.2 RII 5.02 BioMarin represents and warrants that:
(a) it BioMarin has the full power and authority right to enter into this Agreement and to fully perform comply with the terms and conditions of this Agreement;
(b) BioMarin shall use its best efforts to commence clinical testing of Licensed Products after the Effective Date of this Agreement; and
(c) BioMarin shall use its best efforts to obtain regulatory clearance for and to commercialize Licensed Product.
5.03 Nothing in this Agreement constitutes shall be read or construed as:
(a) a warranty or representation as to the valid and binding obligations commercial utility of RII enforceable against it in accordance with its termsthe Licensed Product or any product based on the Patent Rights or Related Technology;
(b) a warranty or representation that any pending application within the Patent Rights will mature into an issued patent;
(c) a warranty or representation as to the execution, delivery and performance by RII validity or scope of this Agreement will not conflict with, or result in a breach or termination of or constitute a default under, any lease, agreement, commitment or other instrument to which RII is a party;Patent Rights; or
(d) it has not represented to any Person a warranty or representation that RCC anything made, used, or otherwise disposed of under this Agreement is an agent or representative will be free from infringement of RII for any purpose and will not do so during the Term;patents, copyrights or trademarks of third parties; or
(e) it has not represented an obligation on the part of Grace to bring or prosecute actions or suits against third parties for infringement.
5.04 As between Grace and BioMarin, BioMarin shall have sole control and responsibility for the manufacture, use and/or sale of Licensed Products. BioMarin shall bear the full responsibility for any liability to any Person customers and others for any Licensed Product made by or on behalf of BioMarin or any BioMarin sublicensee or any BioMarin distributor, and shall indemnify and hold Grace and its corporate Affiliates harmless from any judgment, claim, expense or liability arising out of the sale of Licensed Product(s) by or on behalf of BioMarin and/or any BioMarin sublicensee and/or any BioMarin distributor (including direct, consequential and punitive damages).
5.05 BioMarin further warrants that RCC and RII are not separate entities and will not do so during the Term;
(fany manufacture, use and/or sale of Licensed Product(s) it has not represented to by or on behalf of BioMarin or any Person that RCC is a subsidiary or parent of RII and will not do so during the Term;
(g) it has not represented to any Person that RCC and RII do not operate separate businesses and will not do so during the Term; and
(h) the RII Network will BioMarin sublicensee shall be maintained and operated in material substantial compliance with all applicable federalmaterial laws, state, local and foreign laws.
10.3 RII shall defend, indemnifyregulations, and hold RCC harmless from, against, necessary governmental permits and in respect of any and all claims, costs, expenses (including reasonable fees of counsel), liabilities, obligations, losses, damages, actions, suits or proceedings, of any nature (i) arising in connection with the breach of this Agreement by RII; (ii) arising from or in connection with the assertion against RCC of any claim, whether at law or in equity, in contract or in tort, or arising under or by virtue of any statute, regulation or common law theory of liability, including any claim for payment or performance of any obligation, debt, or liability, whether fixed or contingent, in connection with RII's use of the RCC Marks and/or Related Content, (iii) resulting from the negligence or willful misconduct of RII, its officers, directors, employees, agents or contractors, (iv) resulting from, or arising out of any RII Customer Sales/Use Tax Event (as such term is defined in SECTION 9.3), or (v) arising from or in connection with the assertion against RCC of any claim, whether at law or in equity, in contract or in tort, associated with the sale of RCC Products or RCC Auction Products by RII, but excluding any such claim approvals that arises from any conduct or omission of RCC. Notwithstanding the foregoing, RII shall not have any obligation to RCC under this SECTION 10.3 with respect to any claims arising in connection with a breach by RCC of its representations in SECTION 10.1(d), or if such claim is a result of RCC providing an infringing or defective productare applicable.
10.4 RCC shall defend, indemnify, and hold RII harmless from, against, and in respect of any and all claims, costs, expenses (including reasonable fees of counsel), liabilities, obligations, losses, damages, actions, suits or proceedings, of any nature (i) arising in connection with the breach of this Agreement by RCC (including, but not limited to any claims arising in connection with a breach by RCC of its representations in SECTION 10.1(d)); (ii) arising from or in connection with the assertion against RII of any claim, whether at law or in equity, in contract or in tort, or arising under or by virtue of any statute, regulation or common law theory of liability, including any claim for payment or performance of any obligation, debt, or liability, whether fixed or contingent, in connection with RCC's use of the RCC Marks and/or Related Content; or (iii) resulting from the negligence or willful misconduct of RCC, its officers, directors, employees, agents or contractors.
10.5 With respect to any claim made by party pursuant to SECTION 10.3 or SECTION 10.4 (each such claim is referred to herein as a "Claim"), the party obligated to provide indemnification hereunder (the "Indemnifying Party") shall, at its expense, have the right to participate in, and, at its option, to assume the defense of each such Claim. Promptly upon becoming aware of such Claim, the party entitled to indemnification hereunder (the "Indemnified Party"), shall give the Indemnifying Party written notice thereof; provided, however, that the failure of the Indemnified Party to notify the Indemnifying Party of a Claim shall not relieve the Indemnifying Party of any liability it may have to the Indemnified Party, except to the extent that the Indemnifying Party is actually prejudiced by such failure. If the Indemnifying Party elects to assume the defense of a Claim, following its written notice of such election to the Indemnified Party, the Indemnifying Party shall not be liable to the Indemnified Party in connection with any costs incurred by the Indemnified Party after the date of such notice for the defense of such Claim. Any settlement of any Claim by the Indemnifying Party shall not require the consent of the Indemnified Party so long as the settlement includes a full release of the Indemnified Party with respect to the Claim. Once the Indemnifying Party has assumed the defense of a Claim, so long as the Indemnifying Party is reasonably pursuing the defense of the Claim, the Indemnified Party shall not settle any such Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the right of the Indemnifying Party to assume the defense of any Claim, the Indemnified Party shall have the right, at its expense, to employ separate counsel and to participate in the defense of such Claim.
10.6 The indemnification obligations and procedures set forth in SECTIONS 10.3 - 10.5 shall survive the termination of this Agreement.
Appears in 1 contract
Representations Warranties and Indemnification. 10.1 RCC 11.1 Each Party represents and warrants thatto the other that as of the Effective Date:
(a) it is duly organized and validly existing under the laws of its state of incorporation and has full power and authority to enter into this Agreement;
(b) it has the right, under its agreements with its suppliers and manufacturers, to sell the RCC Products to RII for further resale by RII to end users;
(c) it either owns or has a valid license to use the RCC Marks and Related Content and has sufficient right and authority to grant to RII all licenses and rights granted by RCC hereunder;
(d) the RCC Marks and Related Content and the use thereof as permitted pursuant to this Agreement will not violate any law or infringe upon or violate any rights of any Person;
(e) the execution, delivery execution and performance by RCC of this Agreement will does not conflict with, or result in a breach or termination of or constitute a default under, with any lease, other agreement, commitment oral or other instrument written, to which RCC it is a party;
(f11.2 Sirna represents that as of the Effective Date:
a) it is the sole owner of the Sirna Patents and has not represented sufficient rights to any Person that RCC is an agent or representative grant the licenses of RII for any purpose and will not do so during the TermSection 4;
(gb) it no third party has not represented to any Person interest in the Sirna Patents and Sirna Know-How that RCC would impair Allergan’s use of such patents and RII are not separate entities and will not do so during know-how in the TermField;
(hc) it has not represented to there are no unresolved claims that Sirna’s manufacture, use, sale, offer for sale, or import of any Person that RCC is a subsidiary Compound infringe or parent of RII and will not do so during the Term;
(i) it has not represented to may infringe any Person that RCC and RII do not operate separate businesses and will not do so during the Termthird party patents or other intellectual property right; and
(jd) this Agreement constitutes the Sirna Patents are valid and binding obligations in full force, and are not the subject of RCC enforceable against it in accordance with its termsany interference or opposition proceeding or any litigation.
10.2 RII represents and warrants that:
11.3 EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE 11, NO PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES AS TO ANY MATTER WHATSOEVER. ACCORDINGLY, EACH PARTY HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AGAINST NON-INFRINGEMENT OR THE LIKE, INCLUDING (a) it has the full power and authority to enter into and fully perform this Agreement;
THAT THE SIRNA PATENT OR TECHNOLOGY OR THE PRACTICE THEREOF OR ANY LICENSED PRODUCTS WILL BE FREE FROM CLAIMS OF PATENT INFRINGEMENT, INTERFERENCE OR UNLAWFUL USE OF PROPRIETARY INFORMATION OF ANY PERSON AND (b) this Agreement constitutes the valid and binding obligations of RII enforceable against it in accordance with its terms;
(c) the executionOF THE ACCURACY, delivery and performance by RII of this Agreement will not conflict withRELIABILITY, or result in a breach or termination of or constitute a default underTECHNOLOGICAL OR COMMERCIAL VALUE OR MERCHANTABILITY OF THE LICENSED PATENT RIGHTS OR TECHNOLOGY OR ANY LICENSED PRODUCTS, any leaseOR THEIR SUITABILITY OR THE FITNESS THEREOF FOR ANY PARTICULAR PURPOSE, agreementINCLUDING, commitment or other instrument to which RII is a party;
(d) it has not represented to any Person that RCC is an agent or representative of RII for any purpose and will not do so during the Term;
(e) it has not represented to any Person that RCC and RII are not separate entities and will not do so during the Term;
(f) it has not represented to any Person that RCC is a subsidiary or parent of RII and will not do so during the Term;
(g) it has not represented to any Person that RCC and RII do not operate separate businesses and will not do so during the Term; and
(h) the RII Network will be maintained and operated in material compliance with all applicable federalWITHOUT LIMITATION, stateTHE DESIGN, local and foreign lawsDEVELOPMENT, MANUFACTURE, USE OR SALE OF ANY SUCH LICENSED PRODUCTS.
10.3 RII shall defend11.4 EXCEPT FOR THOSE CLAIMS OF A THIRD PARTY AS MAY BE PAYABLE PURSUANT TO THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, NEITHER OF SIRNA, ON THE ONE HAND, AND ALLERGAN, ON THE OTHER HAND, NOR ANY OF THEIR AFFILIATES, LICENSEES OR REPRESENTATIVES WILL BE LIABLE TO THE OTHER PARTY, ITS AFFILIATES OR ANY OF THEIR LICENSEES OR REPRESENTATIVES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY), INDEMNITY OR CONTRIBUTION, AND IRRESPECTIVE OF WHETHER THAT PARTY OR ANY REPRESENTATIVE OF THAT PARTY HAS BEEN ADVISED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF, ANY SUCH LOSS OR DAMAGE. IN ADDITION, THE LIABILITY OF SIRNA WITH RESPECT TO THE SUBJECT MATTER OF ARTICLE 8 HEREOF (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, IN TORT OR OTHERWISE) WILL BE LIMITED TO THE AGGREGATE AMOUNT ACTUALLY PAID BY ALLERGAN TO SIRNA FOR SINA COMPONENT.
11.5 Allergan hereby agrees to indemnify, defend and hold RCC harmless fromSirna, againstits Affiliates, and in respect of their respective directors, officers, employees, agents and their respective successors, heirs and assigns (the “Sirna Indemnitees”) harmless from and against any and all claimslosses, costs, claims, damages, liabilities or expenses (including reasonable attorneys’ and professional fees and other expenses of counsel)litigation) (collectively, liabilities, obligations, losses, damages, actions, suits or proceedings, of any nature (i“Liabilities”) arising out of claims, suits, actions or demands, in each case brought by a third party or judgments arising therefrom (including those arising out of personal injury claims) (each a “Claim”) as a result of (a) activities of Allergan, its Affiliates, or any third party acting on behalf of or under authorization by Allergan in connection with Allergan’s development, manufacture (to the extent Allergan manufactures Licensed Products hereunder), commercialization, or other use or handling of Lead Compounds, Development Compounds, and Licensed Products, or (b) a breach of the terms and conditions of this Agreement by RII; (ii) arising from Allergan or in connection with the assertion against RCC of any claim, whether at law or in equity, in contract or in tort, or arising under or by virtue of any statute, regulation or common law theory of liability, including any claim for payment or performance of any obligation, debt, or liability, whether fixed or contingent, in connection with RII's use of the RCC Marks and/or Related Content, (iii) resulting from the negligence or willful misconduct of RII, its officers, directors, employees, agents or contractors, (iv) resulting from, or arising out of any RII Customer Sales/Use Tax Event (as such term is defined in SECTION 9.3), or (v) arising from or in connection with the assertion against RCC of any claim, whether at law or in equity, in contract or in tort, associated with the sale of RCC Products or RCC Auction Products by RII, but excluding any such claim that arises from any conduct or omission of RCC. Notwithstanding the foregoing, RII shall not have any obligation to RCC under this SECTION 10.3 with respect to any claims arising in connection with a breach by RCC of its representations in SECTION 10.1(d), or if such claim is a result of RCC providing an infringing or defective product.
10.4 RCC shall defend, indemnify, and hold RII harmless from, against, and in respect of any and all claims, costs, expenses (including reasonable fees of counsel), liabilities, obligations, losses, damages, actions, suits or proceedings, of any nature (i) arising in connection with the breach of this Agreement by RCC (including, but not limited to any claims arising in connection with a breach by RCC of its representations in SECTION 10.1(d)); (ii) arising from or in connection with the assertion against RII of any claim, whether at law or in equity, in contract or in tort, or arising under or by virtue of any statute, regulation or common law theory of liability, including any claim for payment or performance of any obligation, debt, or liability, whether fixed or contingent, in connection with RCC's use of the RCC Marks and/or Related Content; or (iii) resulting from the negligence or willful misconduct of RCC, its officers, directors, employees, agents or contractors.
10.5 With respect to any claim warranties made by party pursuant to SECTION 10.3 or SECTION 10.4 (each such claim is referred to herein as a "Claim"), the party obligated to provide indemnification hereunder (the "Indemnifying Party") shall, at its expense, have the right to participate in, and, at its option, to assume the defense of each such Claim. Promptly upon becoming aware of such Claim, the party entitled to indemnification hereunder (the "Indemnified Party"), shall give the Indemnifying Party written notice thereofAllergan in this Agreement; provided, however, that Allergan’s obligations pursuant to this Paragraph 11.5 will not apply to the failure extent such Claims result from (i) the gross negligence, recklessness, bad faith, intentional wrongful acts or omissions of any of the Sirna Indemnitees or (ii) material breach of the terms and conditions of this Agreement by any of the Sirna Indemnitees.
11.6 Sirna hereby agrees to indemnify, defend and hold Allergan, its Affiliates, and their respective directors, officers, employees, agents and their respective successors, heirs and assigns (the “Allergan Indemnitees”) harmless from and against any Liabilities arising out of Claims as a result of: (a) the gross negligence, recklessness, bad faith, intentional wrongful acts or omissions of Sirna, its Affiliates, or any third party acting on behalf of or under authorization by Sirna, including in connection with Sirna’s manufacture of siNA component of the Licensed Product or (b) activities of Sirna, its Affiliates, or any third party acting on behalf of or under authorization by Sirna in connection with Sirna’s manufacture of any Compound and its development or other use or handling of Leads to the extent relating to the negligence or misconduct of Sirna, its Affiliates or such third parties, or (c) a breach of the terms and conditions of this Agreement by Sirna or a breach of the representations and warranties made by Sirna in this Agreement; provided, however, that Sirna’s obligations pursuant to this Paragraph 11.6 will not apply to the extent such Claims result from (i) the negligence, recklessness, bad faith, intentional wrongful acts or omissions of any of the Allergan Indemnitees or (ii) breach of the terms and conditions of this Agreement by any of the Allergan Indemnitees.
11.7 In the event a Claim is made against a Sirna Indemnitee or Allergan Indemnitee, as applicable, (each, an “Indemnified Party”) with respect to which it is entitled to indemnification under this Article 11, such Indemnified Party will promptly notify the Party having such indemnification obligation (the “Indemnifying Party”) of such Claim and the facts constituting the basis for the Claim and the Indemnifying Party may, at its option, elect to assume control of the defense of such Claim with counsel reasonably acceptable to such Indemnified Party; provided, however, that (a) the Indemnified Party will be entitled to participate therein (through counsel of its own choosing) at the Indemnified Party’s sole cost and expense, and provided, further, that, if the litigants in any such action include both the Indemnified Party and the Indemnifying Party and reputable legal counsel for the Indemnified Party will have reasonably concluded in a written legal opinion delivered to the Indemnifying Party that, by reason of certain bona fide defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party, the interests of the Indemnified Party to notify materially conflict with the interests of the Indemnifying Party such that it would be unethical under applicable rules relating to attorney conflicts of a Claim shall not relieve interest for the Indemnifying Party of any liability it may have and such Indemnified Party to be represented by the Indemnified Partysame counsel with respect to such defense, except to the extent that the Indemnifying Party is actually prejudiced by such failure. If the Indemnifying Party elects to assume the defense of a Claim, following its written notice of such election to the Indemnified Party, the Indemnifying Party shall not be liable to the Indemnified Party in connection will have the right to select a separate counsel and to assume such legal defenses, with any costs incurred by the Indemnified Party after the date reasonable expenses and fees of such notice for the defense of separate counsel and other expenses related to such Claim. Any settlement of any Claim participation to be reimbursed by the Indemnifying Party shall not require the consent of the Indemnified Party so long as the settlement includes a full release of the Indemnified Party with respect to the Claim. Once and when incurred and (b) the Indemnifying Party has assumed the defense of a Claim, so long as the Indemnifying Party is reasonably pursuing the defense of the Claim, the Indemnified Party shall will not settle or compromise any such Claim without the prior written consent of the Indemnifying PartyIndemnified Parties, which consent shall not be unreasonably withheld unless such settlement or delayed. Notwithstanding compromise consists solely of the right payment of money by the Indemnifying Party to assume the defense and includes a general release of any Claim, the Indemnified Party shall have Parties from any and all liability with respect thereto. The Indemnified Parties will reasonably cooperate with and provide full information with respect to any Claim for which the right, at its expense, to employ separate counsel and to participate in the defense of such ClaimIndemnified Parties seek indemnification hereunder.
10.6 The indemnification 11.8 Nothing in this Article 11 relieves Sirna of its obligations and procedures set forth in SECTIONS 10.3 - 10.5 shall survive the termination under Article 9 of this Agreement.
Appears in 1 contract
Sources: Strategic Alliance Agreement (Sirna Therapeutics Inc)
Representations Warranties and Indemnification. 10.1 RCC 8.1 Subject to Section 8.2 and 8.3, FATE shall use the PATENT RIGHTS at its own risk. FATE understands and acknowledges that MDC, by this AGREEMENT, makes no representation as to the operability or fitness for any use, safety, efficacy, approvability by regulatory authorities, time and cost of development, patentability, and/or breadth of the MDC TECHNOLOGY. MDC, by this AGREEMENT, also makes no representation as to whether there are any patents now held, or which will be held, by others or by MDC which may be dominant or subordinate to the PATENT RIGHTS, nor does MDC make any representation that the inventions contained in PATENT RIGHTS do not infringe any other patents now held or that will be held by others or by MDC. With respect to patent prosecution, MDC’s diligence shall be limited to (a) managing and overseeing the work conducted by qualified patent counsel of its choice to the same degree of care and diligence generally exercised by research institutions, and (b) reasonably responding to requests made by outside patent counsel in a prompt manner. MDC’s liability for payment of damages for patent prosecution shall be limited to those arising from its gross negligence. MDC shall not be liable for mistakes made by its competent outside patent counsel.
8.2 Each PARTY represents and warrants that:
(a) that it has full power and authority to enter into execute the license and undertake the obligations therein. Each PARTY represents and warrants that the execution of this Agreement;Agreement by such PARTY does not create a breach or default under any other agreement to which it is a party or by which it is bound, nor violate any Law or regulation of any court, governmental body or administrative or other agency having jurisdiction over such PARTY.
(b) 8.3 MDC represents that it has the right, under its agreements with its suppliers and manufacturers, to sell the RCC Products to RII for further resale by RII to end users;
(c) it either owns or has a valid license to use the RCC Marks and Related Content and has sufficient right and authority to grant to RII all licenses the rights in the EXCLUSIVE LICENSE under the PATENT RIGHTS and the LICENSED KNOW-HOW and that the PATENT RIGHTS are free and clear of any liens, charges and encumbrances that would adversely affect the rights granted by RCC to FATE hereunder;
(d) the RCC Marks and Related Content and the use thereof as permitted pursuant to this Agreement will not violate any law or infringe upon or violate any rights of any Person;
(e) the execution, delivery and performance by RCC of this Agreement will not conflict with, or result in a breach or termination of or constitute a default under, any lease, agreement, commitment or other instrument to which RCC is a party;
(f) it has not represented to any Person that RCC is an agent or representative of RII for any purpose and will not do so during the Term;
(g) it has not represented to any Person that RCC and RII are not separate entities and will not do so during the Term;
(h) it has not represented to any Person that RCC is a subsidiary or parent of RII and will not do so during the Term;
(i) it has not represented to any Person that RCC and RII do not operate separate businesses and will not do so during the Term; and
(j) this Agreement constitutes the valid and binding obligations of RCC enforceable against it in accordance with its terms.
10.2 RII . MDC represents and warrants that:
(a) it has that on the full power and authority to enter into and fully perform this Agreement;
(b) this Agreement constitutes the valid and binding obligations of RII enforceable against it in accordance with its terms;
(c) the execution, delivery and performance by RII of this Agreement will not conflict with, or result in a breach or termination of or constitute a default under, any lease, agreement, commitment or other instrument to which RII is a party;
(d) it has not represented to any Person that RCC is an agent or representative of RII for any purpose and will not do so during the Term;
(e) it has not represented to any Person that RCC and RII EFFECTIVE DATE there are not separate entities and will not do so during the Term;
(f) it has not represented to any Person that RCC is a subsidiary or parent of RII and will not do so during the Term;
(g) it has not represented to any Person that RCC and RII do not operate separate businesses and will not do so during the Term; and
(h) the RII Network will be maintained and operated in material compliance with all applicable federal, state, local and foreign laws.
10.3 RII shall defend, indemnify, and hold RCC harmless from, against, and in respect of any and all claims, costs, expenses (including reasonable fees of counsel), liabilities, obligations, losses, damages, no actions, suits or proceedingsclaims pending, asserted, or threatened challenging MDC’s ownership or control of the PATENT RIGHTS. MDC represents and warrants that to the best of its knowledge or what reasonably should have been known as of the EFFECTIVE DATE, it is the exclusive owner of the PATENT RIGHTS and that it has received all assignments of rights and interests from each inventor of the PATENT RIGHTS. Should MDC’s actual knowledge of any nature of the representations and warranties made in this Section 8.3 materially change, MDC shall notify FATE in due course of business.
8.4 MDC represents and warrants that it shall not (ia) arising enter into any agreement, instrument or understanding, oral or written, with any third party or (b) grant any license to any third party relating to any of the intellectual property rights it controls, in connection each case (a) or (b) which would conflict or interfere with any of the breach rights or licenses granted to FATE hereunder during the term of this Agreement by RII; AGREEMENT.
8.5 FATE agrees to hold harmless and indemnify the MDC, as well as their officers, employees and agents (iicollectively, “INDEMNITEES”) from and against any claims, demands, or causes of action whatsoever, including without limitation those arising from or in connection with the assertion against RCC on account of any claim, whether at law injury or in equity, in contract death of persons or in tortdamage to property caused by, or arising under or by virtue of any statute, regulation or common law theory of liability, including any claim for payment or performance of any obligation, debtout of, or liabilityresulting from, whether fixed the exercise or contingent, in connection with RII's use practice of the RCC Marks and/or Related Content, (iii) resulting from the negligence or willful misconduct of RIIlicense granted hereunder by FATE, its AFFILIATES and SUBLICENSEES or their respective officers, directors, employees, agents or contractorsrepresentatives.
8.6 MDC and FATE are not acting as agents or contractors for the respective other party. This AGREEMENT shall not create a partnership among the PARTIES.
8.7 FATE, (iv) resulting fromby execution of this AGREEMENT, acknowledges and agrees that it has not been induced in any way by MDC or any of their employees or agents to enter into this AGREEMENT.
8.8 Neither PARTY shall use the name, trademarks, or arising out of any RII Customer Sales/Use Tax Event (as such term is defined in SECTION 9.3), or (v) arising from or in connection with the assertion against RCC of any claim, whether at law or in equity, in contract or in tort, associated with the sale of RCC Products or RCC Auction Products by RII, but excluding any such claim that arises from any conduct or omission of RCC. Notwithstanding the foregoing, RII shall not have any obligation to RCC under this SECTION 10.3 with respect to any claims arising in connection with a breach by RCC of its representations in SECTION 10.1(d), or if such claim is a result of RCC providing an infringing or defective product.
10.4 RCC shall defend, indemnify, and hold RII harmless from, against, and in respect of any and all claims, costs, expenses (including reasonable fees of counsel), liabilities, obligations, losses, damages, actions, suits or proceedings, of any nature (i) arising in connection with the breach of this Agreement by RCC (including, but not limited to any claims arising in connection with a breach by RCC of its representations in SECTION 10.1(d)); (ii) arising from or in connection with the assertion against RII of any claim, whether at law or in equity, in contract or in tort, or arising under or by virtue of any statute, regulation or common law theory of liability, including any claim for payment or performance of any obligation, debt, or liability, whether fixed or contingent, in connection with RCC's use other marks of the RCC Marks and/or Related Content; or (iii) resulting from the negligence or willful misconduct of RCC, other PARTY without its officers, directors, employees, agents or contractorsadvance written consent.
10.5 With respect to any claim made by party pursuant to SECTION 10.3 or SECTION 10.4 (each such claim is referred to herein as a "Claim"), the party obligated to provide indemnification hereunder (the "Indemnifying Party") shall, at its expense, have the right to participate in, and, at its option, to assume the defense of each such Claim. Promptly upon becoming aware of such Claim, the party entitled to indemnification hereunder (the "Indemnified Party"), shall give the Indemnifying Party written notice thereof; provided, however, that the failure of the Indemnified Party to notify the Indemnifying Party of a Claim shall not relieve the Indemnifying Party of any liability it may have to the Indemnified Party, except to the extent that the Indemnifying Party is actually prejudiced by such failure. If the Indemnifying Party elects to assume the defense of a Claim, following its written notice of such election to the Indemnified Party, the Indemnifying Party shall not be liable to the Indemnified Party in connection with any costs incurred by the Indemnified Party after the date of such notice for the defense of such Claim. Any settlement of any Claim by the Indemnifying Party shall not require the consent of the Indemnified Party so long as the settlement includes a full release of the Indemnified Party with respect to the Claim. Once the Indemnifying Party has assumed the defense of a Claim, so long as the Indemnifying Party is reasonably pursuing the defense of the Claim, the Indemnified Party shall not settle any such Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the right of the Indemnifying Party to assume the defense of any Claim, the Indemnified Party shall have the right, at its expense, to employ separate counsel and to participate in the defense of such Claim.
10.6 The indemnification obligations and procedures set forth in SECTIONS 10.3 - 10.5 shall survive the termination of this Agreement.
Appears in 1 contract
Representations Warranties and Indemnification. 10.1 RCC Pioneer will comply fully and ensure its Affiliates and allowed sublicensees similarly comply fully with all applicable laws and regulations of applicable Governmental Bodies regarding the growing, conditioning/processing, treatment, packaging, testing, transportation, importation, handling, storage, distribution and disposal of Germplasm, Progeny Germplasm and Traited Germplasm. NEITHER PARTY MAKES ANY OTHER REPRESENTATIONS, EXTENDS ANY OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, OR ASSUMES ANY RESPONSIBILITIES WHATSOEVER WITH RESPECT TO: THE PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE GERMPLASM, PROGENY GERMPLASM OR TRAITED GERMPLASM THE SUITABILITY, COMPLETENESS OR ACCURACY OF INFORMATION OR OTHER DATA PROVIDED IN CONNECTION WITH THIS AGREEMENT; THE SCOPE OR VALIDITY OF ANY PATENT OR PVP/PBR CERTIFICATES OF THE GERMPLASM, PROGENY GERMPLASM OR TRAITED GERMPLASM; OR ANY GERMPLASM, PROGENY GERMPLASM OR TRAITED GERMPLASM BEING FREE FROM INFRINGEMENT OF PATENTS To Licensor's knowledge, the Germplasm are distinct, uniform and stable alfalfa varieties. Each Party hereby represents and warrants that:
(a) that any information transmitted to the other Party under this Agreement has not been received or generated under any restrictions from, or in any manner as to obligate an employee of Licensor, to any third party, and that the transfer of such information to Pioneer is free and unencumbered by said third parties. Each Party represents and warrants that it has full power and authority is not under any obligation to enter or restriction by any third party that would prevent it from entering into this Agreement;
(b) it has . Licensor warrants the right, under its agreements with its suppliers and manufacturers, to sell the RCC Products to RII for further resale by RII to end users;
(c) it either owns or has a valid license to use the RCC Marks and Related Content and has sufficient right and authority Licensor is legally entitled to grant the license granted in Article II(1). Pioneer agrees to RII all licenses and rights granted by RCC hereunder;
(d) the RCC Marks and Related Content and the use thereof as permitted pursuant to this Agreement will not violate any law or infringe upon or violate any rights of any Person;
(e) the executionsave, delivery and performance by RCC of this Agreement will not conflict with, or result in a breach or termination of or constitute a default under, any lease, agreement, commitment or other instrument to which RCC is a party;
(f) it has not represented to any Person that RCC is an agent or representative of RII for any purpose and will not do so during the Term;
(g) it has not represented to any Person that RCC and RII are not separate entities and will not do so during the Term;
(h) it has not represented to any Person that RCC is a subsidiary or parent of RII and will not do so during the Term;
(i) it has not represented to any Person that RCC and RII do not operate separate businesses and will not do so during the Term; and
(j) this Agreement constitutes the valid and binding obligations of RCC enforceable against it in accordance with its terms.
10.2 RII represents and warrants that:
(a) it has the full power and authority to enter into and fully perform this Agreement;
(b) this Agreement constitutes the valid and binding obligations of RII enforceable against it in accordance with its terms;
(c) the execution, delivery and performance by RII of this Agreement will not conflict with, or result in a breach or termination of or constitute a default under, any lease, agreement, commitment or other instrument to which RII is a party;
(d) it has not represented to any Person that RCC is an agent or representative of RII for any purpose and will not do so during the Term;
(e) it has not represented to any Person that RCC and RII are not separate entities and will not do so during the Term;
(f) it has not represented to any Person that RCC is a subsidiary or parent of RII and will not do so during the Term;
(g) it has not represented to any Person that RCC and RII do not operate separate businesses and will not do so during the Term; and
(h) the RII Network will be maintained and operated in material compliance with all applicable federal, state, local and foreign laws.
10.3 RII shall defend, indemnify, indemnify and hold RCC Licensor, its Affiliates and their respective members, shareholders, employees, directors, officers, representatives and agents harmless from, against, from and in respect of against any and all claims, costsdemands, expenses suits and actions, causes of action for any loss, liability, obligation, injury, damage, costs and expenses, (including reasonable without limitation fees and expenses of counsel)attorneys, liabilitiesinvestigators, obligationsand experts and other costs and expenses incident to any suit, losses, damages, actions, suits action or proceedings, proceeding) of any nature kind whatsoever (i"Claims") arising in connection with against Licensor resulting from any wrongful use by Pioneer or its Affiliates of the Germplasm, Progeny Germplasm, Traited Germplasm or Traits including Claims resulting solely from the gross negligence, misconduct, deliberate misrepresentation, or breach of this Agreement by RII; (ii) arising from Pioneer, as adjudicated by decision of a court of competent jurisdiction, unappealable or in connection with unappealed within the assertion against RCC of any claimtime provided by law. Licensor agrees to save, whether at law or in equitydefend, in contract or in tort, or arising under or by virtue of any statute, regulation or common law theory of liability, including any claim for payment or performance of any obligation, debt, or liability, whether fixed or contingent, in connection with RII's use of the RCC Marks and/or Related Content, (iii) resulting from the negligence or willful misconduct of RIIindemnify and hold Pioneer, its officersAffiliates and their respective members, shareholders, employees, directors, employeesofficers, representatives and agents or contractors, (iv) resulting from, or arising out of any RII Customer Sales/Use Tax Event (as such term is defined in SECTION 9.3), or (v) arising harmless from or in connection with the assertion and against RCC of any claim, whether at law or in equity, in contract or in tort, associated with the sale of RCC Products or RCC Auction Products by RII, but excluding any such claim that arises from any conduct or omission of RCC. Notwithstanding the foregoing, RII shall not have any obligation to RCC under this SECTION 10.3 with respect to any claims arising in connection with a breach by RCC of its representations in SECTION 10.1(d), or if such claim is a result of RCC providing an infringing or defective product.
10.4 RCC shall defend, indemnify, and hold RII harmless from, against, and in respect of any and all claimsClaims against Pioneer resulting from any wrongful use by Licensor or its Affiliates of the Germplasm, costsProgeny Germplasm, expenses (Traited Germplasm or Traits including reasonable fees of counsel)Claims resulting solely from the gross negligence, liabilitiesmisconduct, obligationsdeliberate misrepresentation, losses, damages, actions, suits or proceedings, of any nature (i) arising in connection with the breach of this Agreement by RCC (includingLicensor, but not limited to any claims arising in connection with a breach as adjudicated by RCC of its representations in SECTION 10.1(d)); (ii) arising from or in connection with the assertion against RII of any claim, whether at law or in equity, in contract or in tort, or arising under or by virtue of any statute, regulation or common law theory of liability, including any claim for payment or performance of any obligation, debt, or liability, whether fixed or contingent, in connection with RCC's use of the RCC Marks and/or Related Content; or (iii) resulting from the negligence or willful misconduct of RCC, its officers, directors, employees, agents or contractors.
10.5 With respect to any claim made by party pursuant to SECTION 10.3 or SECTION 10.4 (each such claim is referred to herein as a "Claim"), the party obligated to provide indemnification hereunder (the "Indemnifying Party") shall, at its expense, have the right to participate in, and, at its option, to assume the defense of each such Claim. Promptly upon becoming aware of such Claim, the party entitled to indemnification hereunder (the "Indemnified Party"), shall give the Indemnifying Party written notice thereof; provided, however, that the failure of the Indemnified Party to notify the Indemnifying Party decision of a Claim shall not relieve court of competent jurisdiction, unappealable or unappealed within the Indemnifying Party of any liability it may have to the Indemnified Party, except to the extent that the Indemnifying Party is actually prejudiced time provided by such failure. If the Indemnifying Party elects to assume the defense of a Claim, following its written notice of such election to the Indemnified Party, the Indemnifying Party shall not be liable to the Indemnified Party in connection with any costs incurred by the Indemnified Party after the date of such notice for the defense of such Claim. Any settlement of any Claim by the Indemnifying Party shall not require the consent of the Indemnified Party so long as the settlement includes a full release of the Indemnified Party with respect to the Claim. Once the Indemnifying Party has assumed the defense of a Claim, so long as the Indemnifying Party is reasonably pursuing the defense of the Claim, the Indemnified Party shall not settle any such Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the right of the Indemnifying Party to assume the defense of any Claim, the Indemnified Party shall have the right, at its expense, to employ separate counsel and to participate in the defense of such Claimlaw.
10.6 The indemnification obligations and procedures set forth in SECTIONS 10.3 - 10.5 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Non Exclusive Alfalfa Licensing and Assignment Agreement (S&W Seed Co)
Representations Warranties and Indemnification. 10.1 RCC represents A. The Sellers hereby represent and warrants thatwarrant to Ryan Beck:
(ai) it has they have full limited liabilit▇ ▇▇▇▇▇▇▇ power and authority to enter into execute and deliver this AgreementAgreement and to perform their obligations hereunder and to consummate the transactions contemplated hereby;
(bii) it has the rightexecution and delivery by them of this Agreement, under its agreements with its suppliers and manufacturersthe performance by them of their obligations hereunder, including the authority to sell sell, assign and transfer to Ryan Beck all of the RCC Products to RII for further resale equity interests of GM▇ ▇▇▇▇ ▇▇ any lien or encumbrance, have been duly and validly authorized by RII to end userstheir respective Executive Committees, no other action on their part being necessary;
(ciii) it either owns or The GMS Group, L.L.C. is a limited liability company duly organized, validly existing and in good standing under the laws of the state of Delaware and the sole member of GMS has a valid license authorized the sale of its entire equity interest in GMS to use the RCC Marks and Related Content and has sufficient right and authority to grant to RII all licenses and rights granted by RCC hereunderRyan Beck as contemplated herein;
(div) the RCC Marks Sellers have title to all of the Acquired Assets, free and Related Content and the use thereof as permitted pursuant to this Agreement will not violate any law or infringe upon or violate any rights clear of any Personlien, except that some of the real property leases, furniture, fixture and equipment, and third party vendor contracts may be subject to non-assignment or non-sublet provisions or be subject to leases, liens or other encumbrances.
(v) the Termination and Settlement Agreement, dated the date hereof, among Sellers, Ryan Beck and Ladenburg has been executed a▇▇ ▇▇ ▇▇▇ective.
(vi) There is not a material level of deficit Customer Accounts.
B. Ryan Beck hereby represents and warrants to the Sellers:
(▇) after the Closing Date, Ryan Beck will be solvent and able to meet ▇▇▇ ▇▇▇▇▇ations in the ordinary course of its business;
(eii) after the executionClosing Date, delivery and performance by RCC of this Agreement Ryan Beck will not conflict with, or result in a breach or termination of or constitute a default under, any lease, agreement, commitment or other instrument to which RCC is a partymeet all regulatory capital ▇▇▇▇▇▇▇▇▇nts;
(fiii) after the Closing Date, Ryan Beck will be financially able to, and ▇▇▇▇, ▇▇▇form the obligations assumed by it has not represented to any Person that RCC is an agent or representative of RII for any purpose and will not do so during the Termhereunder in accordance with their terms;
(giv) it Ryan Beck has not represented full limited liability company power ▇nd authority to any Person that RCC execute and RII are not separate entities deliver this Agreement and will not do so during to perform its obligations hereunder and to consummate the Termtransactions contemplated hereby;
(hv) it has not represented to any Person that RCC Ryan Beck is a subsidiary or parent limited liability company duly ▇▇▇▇▇▇zed, validly existing and in good standing under the laws of RII and will not do so during the Term;
(i) it has not represented to any Person that RCC and RII do not operate separate businesses and will not do so during the Termstate of New Jersey; and
(jvi) the execution and delivery by it of this Agreement constitutes Agreement, and the valid performance by it of its obligations hereunder, have been duly and binding obligations of RCC enforceable against it in accordance with validly authorized by its termsExecutive Management Committee and its sole member, no other action on its part being necessary.
10.2 RII represents C. the Sellers shall jointly and warrants that:
(a) it has the full power severally indemnify Ryan Beck and authority to enter into and fully perform this Agreement;
(b) this Agreement constitutes the valid and binding obligations of RII enforceable against it in accordance with its terms;
(c) the execution, delivery and performance by RII of this Agreement will not conflict with, or result in a breach or termination of or constitute a default under, any lease, agreement, commitment or other instrument to which RII is a party;
(d) it has not represented to any Person that RCC is an agent or representative of RII affiliates for any purpose and will not do so during the Term;
(e) it has not represented to losses any Person that RCC and RII are not separate entities and will not do so during the Term;
(f) it has not represented to any Person that RCC is a subsidiary or parent of RII and will not do so during the Term;
(g) it has not represented to any Person that RCC and RII do not operate separate businesses and will not do so during the Term; and
(h) the RII Network will be maintained and operated in material compliance with all applicable federal, state, local and foreign laws.
10.3 RII shall defend, indemnify, and hold RCC harmless from, against, and in respect of any and all claims, costs, expenses (including reasonable fees of counsel), liabilities, obligations, losses, damages, actions, suits or proceedings, of any nature (i) arising in connection with the breach of this Agreement by RII; (ii) t▇▇▇ ▇▇▇▇▇ins arising from or in connection with the assertion against RCC (i) a breach of any claimof the representations and warranties of the Sellers, whether at law (ii) other costs or in equity, in contract or in tort, or arising under or by virtue of any statute, regulation or common law theory of liability, including any claim for payment or performance of any obligation, debt, or liability, whether fixed or contingent, losses in connection with RII's use the operation of the RCC Marks and/or Related Contentbusiness prior to the Closing Date that do not constitute an Assumed Liability, or (iii) resulting from any Liabilities of the negligence or willful misconduct Sellers which are not expressly assumed by Ryan Beck.
D. Ryan Beck shall indemnify the Sellers an▇ ▇▇▇▇▇ ▇ffiliates for any losses any of RII, its officers, directors, employees, agents or contractors, (iv) resulting from, or arising out of any RII Customer Sales/Use Tax Event (as such term is defined in SECTION 9.3), or (v) them sustains arising from or in connection with the assertion against RCC (i) a breach of any claimof the representations and warranties of Ryan Beck, whether at law (ii) other costs or in equity, in contract or in tort, associated with the sale of RCC Products or RCC Auction Products by RII, but excluding any such claim that arises from any conduct or omission of RCC. Notwithstanding the foregoing, RII shall not have any obligation to RCC under this SECTION 10.3 with respect to any claims arising losses in connection with a breach by RCC of its representations in SECTION 10.1(d), or if such claim is a result of RCC providing an infringing or defective product.
10.4 RCC shall defend, indemnify, and hold RII harmless from, against, and in respect of any and all claims, costs, expenses (including reasonable fees of counsel), liabilities, obligations, losses, damages, actions, suits or proceedings, of any nature (i) arising in connection with the breach of this Agreement by RCC (including, but not limited to any claims arising in connection with a breach by RCC of its representations in SECTION 10.1(d)); (ii) arising from or in connection with the assertion against RII of any claim, whether at law or in equity, in contract or in tort, or arising under or by virtue of any statute, regulation or common law theory of liability, including any claim for payment or performance of any obligation, debt, or liability, whether fixed or contingent, in connection with RCC's use ▇▇▇ operation of the RCC Marks and/or Related Content; business after the Closing Date, or (iii) resulting from the negligence or willful misconduct of RCC, its officers, directors, employees, agents or contractorsany Assumed Liabilities.
10.5 With respect E. Losses indemnifiable by either party under paragraphs C or D above shall expressly exclude consequential damages, special or incidental damages, punitive damages, exemplary damages, enhanced damages, multiple damages, indirect damages and other penalty or speculative damages, except to any claim made the extent such damages are recovered by a third party pursuant to SECTION 10.3 or SECTION 10.4 (each such claim is referred to herein as a "Claim"), the party obligated to provide indemnification hereunder (the "Indemnifying Party") shall, at its expense, have the right to participate in, and, at its option, to assume the defense of each such Claim. Promptly upon becoming aware of such Claim, against the party entitled to indemnification hereunder (the "Indemnified Party"), shall give the Indemnifying Party written notice thereof; provided, however, that the failure of the Indemnified Party to notify the Indemnifying Party of a Claim shall not relieve the Indemnifying Party of any liability it may have to the Indemnified Party, except to the extent that the Indemnifying Party is actually prejudiced by such failure. If the Indemnifying Party elects to assume the defense of a Claim, following its written notice of such election to the Indemnified Party, the Indemnifying Party shall not be liable to the Indemnified Party in connection with any costs incurred by the Indemnified Party after the date of such notice for the defense of such Claim. Any settlement of any Claim by the Indemnifying Party shall not require the consent of the Indemnified Party so long as the settlement includes a full release of the Indemnified Party with respect to the Claim. Once the Indemnifying Party has assumed the defense of a Claim, so long as the Indemnifying Party is reasonably pursuing the defense of the Claim, the Indemnified Party shall not settle any such Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the right of the Indemnifying Party to assume the defense of any Claim, the Indemnified Party shall have the right, at its expense, to employ separate counsel and to participate in the defense of such Claimhereunder.
10.6 The indemnification obligations and procedures set forth in SECTIONS 10.3 - 10.5 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Acquisition of Certain Assets (Bankatlantic Bancorp Inc)
Representations Warranties and Indemnification. 10.1 RCC represents and warrants that:
(a14.01 Grace makes no representations or warranties with respect to its ability to obtain regulatory approval(s) it has full power and authority for any Cedars-Sinai LAD, or with respect to enter into this Agreement;
(b) it has the righttechnical, under its agreements with its suppliers and manufacturers, to sell the RCC Products to RII for further resale by RII to end users;
(c) it either owns economic or has a valid license to use the RCC Marks and Related Content and has sufficient right and authority to grant to RII all licenses and rights granted by RCC hereunder;
(d) the RCC Marks and Related Content and the use thereof as permitted pursuant to this Agreement will not violate any law or infringe upon or violate any rights commercial feasibility of any Person;
(e) the execution, delivery and performance by RCC of this Agreement will not conflict with, or result in a breach or termination of or constitute a default under, any lease, agreement, commitment or other instrument to which RCC is a party;
(f) it has not represented to any Person that RCC is an agent or representative of RII for any purpose and will not do so during the Term;
(g) it has not represented to any Person that RCC and RII are not separate entities and will not do so during the Term;
(h) it has not represented to any Person that RCC is a subsidiary or parent of RII and will not do so during the Term;
(i) it has not represented to any Person that RCC and RII do not operate separate businesses and will not do so during the Term; and
(j) this Agreement constitutes the valid and binding obligations of RCC enforceable against it in accordance with its termsCedars-Sinai LAD.
10.2 RII represents 14.02 Cedars-Sinai warrants the accuracy and warrants that:
(a) it has the full power and authority to enter into and fully perform this Agreement;
(b) this Agreement constitutes the valid and binding obligations of RII enforceable against it in accordance with its terms;
(c) the execution, delivery and performance by RII of this Agreement will not conflict with, or result in a breach or termination of or constitute a default under, any lease, agreement, commitment or other instrument to which RII is a party;
(d) it has not represented to any Person that RCC is an agent or representative of RII for any purpose and will not do so during the Term;
(e) it has not represented to any Person that RCC and RII are not separate entities and will not do so during the Term;
(f) it has not represented to any Person that RCC is a subsidiary or parent of RII and will not do so during the Term;
(g) it has not represented to any Person that RCC and RII do not operate separate businesses and will not do so during the Term; and
(h) the RII Network will be maintained and operated in material compliance with all applicable federal, state, local and foreign laws.
10.3 RII shall defend, indemnify, and hold RCC harmless from, against, and in respect authenticity of any and all claimsinformation, costsdata, expenses (including reasonable fees test results, and the like, with respect to prior investigations conducted by or at the direction of counsel)the Principal Investigator at Cedars-Sinai which Cedars-Sinai provides to Grace for purposes of obtaining regulatory approval for the Cedars-Sinai First Generation LAD, liabilitiesor for any subsequent LAD.
14.03 Cedars-Sinai makes no representations or warranties that any Cedars-Sinai patents or patent applications licensed hereunder are valid, obligationsor that the manufacture, lossesuse, damages, actions, suits sale or proceedings, other disposal of any nature (i) arising LAD utilizing Cedars-Sinai LAD Technology does not infringe upon any patent or other rights other than rights in connection with the breach Cedars-Sinai LAD Technology. Cedars-Sinai, however, knows of this Agreement by RII; (ii) arising from no patent or in connection with the assertion against RCC other rights of any claimthird party which would be so infringed.
14.04 As between Grace and Cedars-Sinai, whether at law or in equityGrace shall have sole control and responsibility for the manufacture, in contract or in tortsale, or arising under or by virtue of any statute, regulation or common law theory of liability, including any claim for payment or performance of any obligation, debt, or liability, whether fixed or contingent, in connection with RII's and/or commercial use of LADs hereunder. As between Grace and Cedars-Sinai, Grace shall bear the RCC Marks and/or Related Contentfull responsibility for any liability to any customers and others for any LAD made and sold or distributed by Grace or any Grace sublicensee, (iii) resulting from the negligence or willful misconduct of RIIand shall indemnify and hold Cedars-Sinai, its officers, directors, employeesemployees and agents harmless from any judgment, agents claim, expense or contractors, liability (ivincluding attorneys' fees) resulting from, or arising out of the sale or distribution of LADs by Grace and/or any RII Customer Sales/Use Tax Event (as Grace sublicensee; provided, however, that such term is defined in SECTION 9.3)indemnification shall not apply to the extent that the judgment, claim, expense, or liability is based on any actual direct conduct by any agent or employee of Cedars-Sinai (v) arising from or in connection with the assertion against RCC of any claim, whether at law or in equityfor example, in contract or in tort, associated with the sale of RCC Products or RCC Auction Products by RII, but excluding any such claim that arises from any conduct or omission of RCC. Notwithstanding the foregoing, RII shall not have any obligation to RCC under this SECTION 10.3 with respect to any claims arising in connection with a breach by RCC of its representations in SECTION 10.1(d), or if such claim is a result of RCC providing an infringing or defective product.
10.4 RCC shall defend, indemnify, and hold RII harmless from, against, and in respect of any and all claims, costs, expenses (including reasonable fees of counsel), liabilities, obligations, losses, damages, actions, suits or proceedings, of any nature (i) arising in connection with the breach of this Agreement by RCC (including, but not limited to any claims arising in connection with a breach by RCC of its representations in SECTION 10.1(d)); (ii) arising from or in connection with the assertion against RII of any claim, whether at law or in equity, in contract or in tort, or arising under or by virtue of any statute, regulation or common law theory of liability, including any claim for payment or performance of any obligation, debt, or liability, whether fixed or contingent, in connection with RCC's use conducting clinical trials of the RCC Marks and/or Related Content; LAD) or (iii) resulting from the negligence or willful misconduct of RCCis based on any inaccurate data which may have been supplied by Cedars-Sinai, its officers, directors, employeesemployees or agents, agents or contractors.
10.5 With respect to any claim made by party pursuant to SECTION 10.3 or SECTION 10.4 (each such claim is referred to herein as a "Claim"), the party obligated to provide indemnification hereunder (the "Indemnifying Party") shall, at its expense, have the right to participate in, and, at its option, to assume the defense of each such Claim. Promptly upon becoming aware of such Claim, the party entitled to indemnification hereunder (the "Indemnified Party"), shall give the Indemnifying Party written notice thereof; provided, however, that the failure of the Indemnified Party to notify the Indemnifying Party of a Claim shall not relieve the Indemnifying Party of any liability it may have to the Indemnified Party, except to the extent that the Indemnifying Party is actually prejudiced by such failure. If the Indemnifying Party elects to assume the defense of a Claim, following its written notice of such election to the Indemnified Party, the Indemnifying Party shall not be liable to the Indemnified Party in connection with any costs incurred by the Indemnified Party after the date of such notice for the defense purpose of such Claim. Any settlement of any Claim by obtaining regulatory approval for the Indemnifying Party shall not require the consent of the Indemnified Party so long as the settlement includes a full release of the Indemnified Party with respect to the Claim. Once the Indemnifying Party has assumed the defense of a Claim, so long as the Indemnifying Party is reasonably pursuing the defense of the Claim, the Indemnified Party shall not settle any such Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the right of the Indemnifying Party to assume the defense of any Claim, the Indemnified Party shall have the right, at its expense, to employ separate counsel and to participate in the defense of such ClaimLAD.
10.6 The indemnification obligations and procedures set forth in SECTIONS 10.3 - 10.5 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Research, Technology Development and License Agreement (Circe Biomedical Inc)
Representations Warranties and Indemnification. 10.1 RCC represents and 9.1 The Licensor warrants that:
(a) to THE LIBRARY that it has full power and authority to enter into this Agreement;
(b) it has the right, under its agreements with its suppliers and manufacturers, to sell the RCC Products to RII for further resale by RII to end users;
(c) it either owns or has a valid license to use the RCC Marks and Related Content and has sufficient right and authority is entitled to grant to RII all licenses the license in this Sub-License and rights granted by RCC hereunder;
(d) the RCC Marks and Related Content and that the use thereof of the PROQUEST DATABASE as permitted pursuant to contemplated in this Agreement Sub-License will not violate infringe any law copyright or infringe upon other proprietary or violate any intellectual property rights of any Person;
(e) natural or legal person. The Licensor agrees that THE LIBRARY and the execution, delivery Institution shall have no liability and performance by RCC of this Agreement the Licensor will not conflict with, or result in a breach or termination of or constitute a default under, any lease, agreement, commitment or other instrument to which RCC is a party;
(f) it has not represented to any Person that RCC is an agent or representative of RII for any purpose and will not do so during the Term;
(g) it has not represented to any Person that RCC and RII are not separate entities and will not do so during the Term;
(h) it has not represented to any Person that RCC is a subsidiary or parent of RII and will not do so during the Term;
(i) it has not represented to any Person that RCC and RII do not operate separate businesses and will not do so during the Term; and
(j) this Agreement constitutes the valid and binding obligations of RCC enforceable against it in accordance with its terms.
10.2 RII represents and warrants that:
(a) it has the full power and authority to enter into and fully perform this Agreement;
(b) this Agreement constitutes the valid and binding obligations of RII enforceable against it in accordance with its terms;
(c) the execution, delivery and performance by RII of this Agreement will not conflict with, or result in a breach or termination of or constitute a default under, any lease, agreement, commitment or other instrument to which RII is a party;
(d) it has not represented to any Person that RCC is an agent or representative of RII for any purpose and will not do so during the Term;
(e) it has not represented to any Person that RCC and RII are not separate entities and will not do so during the Term;
(f) it has not represented to any Person that RCC is a subsidiary or parent of RII and will not do so during the Term;
(g) it has not represented to any Person that RCC and RII do not operate separate businesses and will not do so during the Term; and
(h) the RII Network will be maintained and operated in material compliance with all applicable federal, state, local and foreign laws.
10.3 RII shall defend, indemnify, defend and hold RCC THE LIBRARY and the Institution harmless from, against, and in respect of against any and all claims, costs, expenses (including reasonable fees of counsel)direct damages, liabilities, obligationsclaims, lossescauses of action, damages, actions, suits legal fees and costs incurred by the Institution in defending against any third party claim of intellectual property rights infringements or proceedings, threats of any nature (i) arising in connection claims thereof with respect of the breach of this Agreement by RII; (ii) arising from or in connection with the assertion against RCC of any claim, whether at law or in equity, in contract or in tort, or arising under or by virtue of any statute, regulation or common law theory of liability, including any claim for payment or performance of any obligation, debt, or liability, whether fixed or contingent, in connection with RIIInstitution's and Authorized Users use of the RCC Marks and/or Related ContentPROQUEST DATABASE, provided that: (iii1) resulting from the negligence or willful misconduct use of RII, its officers, directors, employees, agents or contractors, (iv) resulting from, or arising out of any RII Customer Sales/Use Tax Event (as such term is defined the PROQUEST DATABASE has been in SECTION 9.3), or (v) arising from or in connection full compliance with the assertion against RCC terms and conditions of any claim, whether at law or in equity, in contract or in tort, associated this License; (2) the Licensee provides the Licensor with the sale prompt notice of RCC Products or RCC Auction Products by RII, but excluding any such claim or threat of claim; (3) the Licensee co-operates fully with the Licensor in the defense or settlement of such claim; and (4) the Licensor has sole and complete control over the defense or settlement of such claim.
9.2 The Licensor reserves the right to change the content, presentation, user facilities or availability of parts of the PROQUEST DATABASE and to make changes in any software used to make the PROQUEST DATABASE available at their sole discretion. The Licensor will notify THE LIBRARY of any substantial change to the PROQUEST DATABASE.
9.3 While the Licensor has no reason to believe that arises from there are any conduct inaccuracies or omission defects in the information contained in the PROQUEST DATABASE, the Licensor makes no representation and gives no warranty express or implied with regard to the information contained in or any part of RCC. Notwithstanding the foregoingPROQUEST DATABASE including (without limitation) the fitness of such information or part for any purposes whatsoever and the Licensor accepts no liability for loss suffered or incurred by THE LIBRARY , RII shall not have any obligation to RCC under this SECTION 10.3 with respect to any claims arising in connection with a breach by RCC of its representations in SECTION 10.1(d), the Institution or if such claim is Authorized Users as a result of RCC providing an infringing or defective producttheir reliance on the PROQUEST DATABASE.
10.4 RCC shall defend9.4 In no circumstances will the Licensor be liable to the Licensee for any loss resulting from a cause over which the Licensor does not have direct control, indemnify, and hold RII harmless from, against, and in respect of any and all claims, costs, expenses (including reasonable fees of counsel), liabilities, obligations, losses, damages, actions, suits or proceedings, of any nature (i) arising in connection with the breach of this Agreement by RCC (including, but not limited to any claims arising failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, unauthorized access, theft, or operator errors.
9.5 The Institution agrees to THE LIBRARY immediately and provide full particulars in connection with a breach by RCC of its representations in SECTION 10.1(d)); (ii) arising from or in connection with the assertion against RII event that it becomes aware of any claim, whether at law actual or in equity, in contract or in tort, or arising under or threatened claims by virtue of any statute, regulation or common law theory of liability, including any claim for payment or performance of any obligation, debt, or liability, whether fixed or contingent, in connection with RCC's use of the RCC Marks and/or Related Content; or (iii) resulting from the negligence or willful misconduct of RCC, its officers, directors, employees, agents or contractors.
10.5 With respect to any claim made by third party pursuant to SECTION 10.3 or SECTION 10.4 (each such claim is referred to herein as a "Claim"), the party obligated to provide indemnification hereunder (the "Indemnifying Party") shall, at its expense, have the right to participate in, and, at its option, to assume the defense of each such Claim. Promptly upon becoming aware of such Claim, the party entitled to indemnification hereunder (the "Indemnified Party"), shall give the Indemnifying Party written notice thereof; provided, however, that the failure of the Indemnified Party to notify the Indemnifying Party of a Claim shall not relieve the Indemnifying Party of any liability it may have to the Indemnified Party, except to the extent that the Indemnifying Party is actually prejudiced by such failure. If the Indemnifying Party elects to assume the defense of a Claim, following its written notice of such election to the Indemnified Party, the Indemnifying Party shall not be liable to the Indemnified Party in connection with any costs incurred by works contained in the Indemnified Party after PROQUEST DATABASE. It is expressly agreed that upon such notification, or if the date Licensor becomes aware of such notice a claim from other sources, the Licensor may remove such work(s) from the PROQUEST DATABASE. Failure to report knowledge of any actual or threatened claim by any third party shall be deemed a material breach of this License.
9.6 Nothing in this Sub-License shall THE LIBRARY liable for breach of the defense terms of this Sub-License by any Authorized User provided that THE LIBRARY and the Institution did not cause, knowingly assist or condone the continuation of such Claim. Any settlement breach after becoming aware of an actual breach having occurred.
9.7 The Institution represents to THE LIBRARY and the Licensor that its computer system through which the PROQUEST DATABASE will be used is configured, and procedures are in place, to prohibit access to the PROQUEST DATABASE by any Claim by person other than an Authorized User; that it shall inform Institutions about the Indemnifying Party shall not require the consent conditions of use of the Indemnified Party so long as PROQUEST DATABASE; and that during the settlement includes a full release term of the Indemnified Party with respect to the Claim. Once the Indemnifying Party has assumed the defense of a Claim, so long as the Indemnifying Party is reasonably pursuing the defense of the Claimthis Sub-License, the Indemnified Party shall not settle any such Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the right of the Indemnifying Party Institution will continue to assume the defense of any Claim, the Indemnified Party shall have the right, at its expense, make all reasonable efforts to employ separate counsel bar non-permitted access and to participate in the defense of such Claimconvey appropriate use information to its Authorized Users.
10.6 The indemnification obligations and procedures set forth in SECTIONS 10.3 - 10.5 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Sub License Agreement
Representations Warranties and Indemnification. 10.1 RCC Supplier hereby represents and warrants that:
, at the time of delivery to Cardinal’s destinations designated in Cardinal’s orders the Products are and shall be manufactured and delivered to Cardinal in conformity with the Federal Food, Drug and Cosmetic Act, as amended, and all other applicable laws, rules, and regulations. *** 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. EXCEPT FOR THE FOREGOING WARRANTY, SUPPLIER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE, AND SPECIFICALLY DISCLAIMS (i) ANY WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO PRODUCTS, AND (ii) ANY LIABILITY WITH RESPECT TO ANY PRODUCTS THAT, AFTER DELIVERY TO CARDINAL, CARDINAL HAS ALTERED, MODIFIED OR TAMPERED WITH, SUBJECT TO MISUSE, NEGLIGENCE OR OTHERWISE DAMAGED, OR HAVE BEEN STORED, HANDLED, OR USED IN A MANNER CONTRARY TO APPLICABLE LAWS OR REGULATIONS OR SUPPLIER’S DIRECTION. Supplier farther represents and warrants that it is and throughout the term of this Agreement shall be an Authorized Manufacturer or Exclusive Distributor of the Products. For purposes of this Section 10, “Authorized Manufacturer” means a person or entity that (a) it has full power is authorized to engage in the manufacture, preparation, propagation, compounding, or processing, of the Products, as reflected in a registration with the United States Food and authority to enter into this Agreement;
Drug Administration (“FDA”), or (b) it submits listing information for the Products directly to the FDA and has been assigned a Labeler Code; and “Exclusive Distributor” means, in cases where an Authorized Manufacturer does not currently, and has no current plans to, directly supply the right, under its agreements with its suppliers and manufacturers, to sell the RCC Products to RII for further resale by RII Cardinal, the person or entity through whom the Authorized Manufacturer distributes or sells the Products. If Supplier provides the Products to end users;
Cardinal as an Exclusive Distributor, Supplier will also provide (cx) it either owns or has a valid license to use documentation on the RCC Marks and Related Content Authorized Manufacturer’s letterhead that indicates that the Authorized Manufacturer does not currently, and has sufficient right no current plans to, supply the Products directly to Cardinal and authority to grant to RII all licenses and rights granted by RCC hereunder;
(dy) the RCC Marks and Related Content and the use thereof as permitted pursuant to this Agreement will not violate any law or infringe upon or violate any rights of any Person;
(e) the execution, delivery and performance by RCC of this Agreement will not conflict with, or result in a breach or termination of or constitute a default under, any lease, agreement, commitment or other instrument to which RCC is a party;
(f) it documentation on Supplier’s letterhead that Supplier has not represented to any Person that RCC is an agent or representative of RII for any purpose and will not do so during only purchase the Term;
(g) it has not represented Products directly from the Authorized Manufacturer. If Supplier acquires the rights as the Authorized Manufacturer of the Products, Supplier will provide written documentation to any Person that RCC and RII are not separate entities and will not do so during Cardinal of the Term;
(h) it has not represented consummation of the acquisition to any Person that RCC is a subsidiary or parent support sales of RII and will not do so during the Term;
(i) it has not represented to any Person that RCC and RII do not operate separate businesses and will not do so during Products under the Term; and
(j) this Agreement constitutes the valid and binding obligations of RCC enforceable against it in accordance with its terms.
10.2 RII represents and warrants that:
(a) it has the full power and authority to enter into and fully perform this Agreement;
(b) this Agreement constitutes the valid and binding obligations of RII enforceable against it in accordance with its terms;
(c) the execution, delivery and performance by RII of this Agreement will not conflict with, or result in a breach or termination of or constitute a default under, any lease, agreement, commitment or other instrument to which RII is a party;
(d) it has not represented to any Person that RCC is an agent or representative of RII for any purpose and will not do so during the Term;
(e) it has not represented to any Person that RCC and RII are not separate entities and will not do so during the Term;
(f) it has not represented to any Person that RCC is a subsidiary or parent of RII and will not do so during the Term;
(g) it has not represented to any Person that RCC and RII do not operate separate businesses and will not do so during the Term; and
(h) the RII Network will be maintained and operated in material compliance with all applicable federal, state, local and foreign laws.
10.3 RII existing NDC number. Supplier shall defend, indemnify, and hold RCC harmless fromCardinal and its affiliates, againstsubsidiaries, directors, officers, employees and in respect of representatives from and against any and all third party claims, costs, expenses (including reasonable fees of counsel), liabilities, obligations, losses, damages, actionscosts, suits and expenses (including without limitation reasonable attorneys’ fees) arising directly or proceedings, indirectly out of: (a) the breech of any nature representation or warranty set forth in this Section; (ib) the fraud, intentional misconduct, omission or negligence of Supplier; (c) the manufacture, marketing, testing, shipping, sale, possession or use of the Products (occluding any claim, liability, loss, damage, cost or expense shown to be attributable to Cardinal’s intentional misconduct or negligence in handling such Products); (d) “class of trade” pricing, if any maintained by, Supplier from and after the effective date of this Agreement, including without limitation those arising out of Cardinal’s administration of Supplier Contracts; and (e) any intellectual property infringement actions (including patent, trademark, service ▇▇▇▇, copyright trade dress, trade secret and other proprietary rights) brought by a third party in connection with the breach Cardinal’s distribution of Products hereunder. The warranty and indemnification provisions of this Agreement by RII; (ii) arising from Section shall survive any termination or in connection expiration of this Agreement. *** Certain information on this page has been omitted and filed separately with the assertion against RCC of any claim, whether at law or in equity, in contract or in tort, or arising under or by virtue of any statute, regulation or common law theory of liability, including any claim for payment or performance of any obligation, debt, or liability, whether fixed or contingent, in connection with RII's use of the RCC Marks and/or Related Content, (iii) resulting from the negligence or willful misconduct of RII, its officers, directors, employees, agents or contractors, (iv) resulting from, or arising out of any RII Customer Sales/Use Tax Event (as such term is defined in SECTION 9.3), or (v) arising from or in connection with the assertion against RCC of any claim, whether at law or in equity, in contract or in tort, associated with the sale of RCC Products or RCC Auction Products by RII, but excluding any such claim that arises from any conduct or omission of RCCCommission. Notwithstanding the foregoing, RII shall not have any obligation to RCC under this SECTION 10.3 Confidential treatment has been requested with respect to any claims arising in connection with a breach by RCC of its representations in SECTION 10.1(d), or if such claim is a result of RCC providing an infringing or defective product.
10.4 RCC the omitted portions. Cardinal shall defend, indemnify, and hold RII held harmless fromSupplier and its affiliates, againstsubsidiaries, directors, officers, employees and in respect representatives from and against any Claims, to the extent arising directly or indirectly out of any and all claims, costs, expenses (including reasonable fees of counsel), liabilities, obligations, losses, damages, actions, suits or proceedings, of any nature (ia) arising in connection with the Cardinal’s breach of this Agreement by RCC (including, but not limited to any claims arising in connection with a breach by RCC of its representations in SECTION 10.1(d)); (ii) arising from or in connection with the assertion against RII of any claim, whether at law or in equity, in contract or in tortAgreement, or arising (b) the fraud, intentional misconduct or negligent act or omission of Cardinal; provided that Cardinal shall have no duty to indemnify, defend or hold harmless under or by virtue of any statute, regulation or common law theory of liability, including any claim for payment or performance of any obligation, debt, or liability, whether fixed or contingent, in connection with RCC's use of the RCC Marks and/or Related Content; or (iii) resulting from the negligence or willful misconduct of RCC, its officers, directors, employees, agents or contractors.
10.5 With respect to any claim made by party pursuant to SECTION 10.3 or SECTION 10.4 (each such claim is referred to herein as a "Claim"), the party obligated to provide indemnification hereunder (the "Indemnifying Party") shall, at its expense, have the right to participate in, and, at its option, to assume the defense of each such Claim. Promptly upon becoming aware of such Claim, the party entitled to indemnification hereunder (the "Indemnified Party"), shall give the Indemnifying Party written notice thereof; provided, however, that the failure of the Indemnified Party to notify the Indemnifying Party of a Claim shall not relieve the Indemnifying Party of any liability it may have to the Indemnified Party, except this paragraph to the extent that the Indemnifying Party is actually prejudiced by such failure. If the Indemnifying Party elects to assume the defense of a ClaimSupplier, following its written notice of such election affiliates, subsidiaries, directors, employees or representatives caused or contributed to the Indemnified Party, the Indemnifying Party shall not be liable Claims or to the Indemnified Party in connection with any costs incurred by extent that Supplier is obligated to indemnify Cardinal under the Indemnified Party after the date of such notice for the defense of such Claimpreceding paragraphs. Any settlement of any Claim by the Indemnifying Party shall not require the consent of the Indemnified Party so long as the settlement includes a full release of the Indemnified Party with respect to the Claim. Once the Indemnifying Party has assumed the defense of a ClaimNEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, so long as the Indemnifying Party is reasonably pursuing the defense of the ClaimINDIRECT, the Indemnified Party shall not settle any such Claim without the consent of the Indemnifying PartyPUNITIVE, which consent shall not be unreasonably withheld or delayed. Notwithstanding the right of the Indemnifying Party to assume the defense of any ClaimCONSEQUENTIAL OR SPECIAL DAMAGES, the Indemnified Party shall have the rightINCLUDING DAMAGES FOR LOSS OF PROFITS, at its expenseLOSS OF REVENUE OR LOSSES BY REASON OF COST OF CAPITAL, to employ separate counsel and to participate in the defense of such ClaimARISING FROM OR RELATING TO ANY PERFORMANCE OR LACK OF PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER A CLAIM IS BASED ON CONTRACT, TORT, OR VIOLATION OF ANY APPLICABLE LEGAL OR EQUITABLE PRINCIPLE.
10.6 The indemnification obligations and procedures set forth in SECTIONS 10.3 - 10.5 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Wholesale Purchase Agreement
Representations Warranties and Indemnification. 10.1 RCC 11.1 Each Party represents and warrants thatto the other that as of the Effective Date:
(a) it is duly organized and validly existing under the laws of its state of incorporation and has full power and authority to enter into this Agreement;
(b) it has the right, under its agreements with its suppliers and manufacturers, to sell the RCC Products to RII for further resale by RII to end users;
(c) it either owns or has a valid license to use the RCC Marks and Related Content and has sufficient right and authority to grant to RII all licenses and rights granted by RCC hereunder;
(d) the RCC Marks and Related Content and the use thereof as permitted pursuant to this Agreement will not violate any law or infringe upon or violate any rights of any Person;
(e) the execution, delivery execution and performance by RCC of this Agreement will does not conflict with, or result in a breach or termination of or constitute a default under, with any lease, other agreement, commitment oral or other instrument written, to which RCC it is a party;
(f11.2 Sirna represents that as of the Effective Date:
a) it is the [***]* Sirna Patents and has not represented sufficient rights to any Person that RCC is an agent or representative of RII for any purpose and will not do so during grant the Termlicenses granted to GSK under Article 4;
(gb) it no Third Party has not represented any interest in the Sirna Patents and Sirna Know-How that would impair or conflict with the rights and licenses granted hereunder to any Person that RCC GSK’s for the use of such Sirna Patents and RII are not separate entities Sirna Know-How and will not do so during the TermJoint Patents and Joint Know-How as provided herein;
(hc) it has not represented to [***]* that Sirna’s manufacture, use, sale, offer for sale, or import of any Person that RCC is a subsidiary Target Compound or parent of RII and will not do so during the TermCollaboration Compound as contemplated hereunder [***]* patents or other intellectual property right;
d) neither Sirna nor any of its Affiliates is in material breach or default of any provision or obligation under any of the Third Party License Agreements;
e) neither Sirna nor any of its Affiliates is [***]* as of the Effective Date which is not included under the Third Party License Agreements and licensed to GSK either exclusively (iwherever possible) it has not represented or non-exclusively (where an exclusive license is contractually prevented) under Article 4, which Sirna or its Affiliate [***]* for the Parties to any Person that RCC conduct the Research Collaboration and RII do not operate separate businesses and will not do so during for the TermDevelopment of Licensed Products as contemplated hereunder; and
(jf) this Agreement constitutes the Sirna Patents are valid and binding obligations in full force, and are not the subject of RCC enforceable against it any pending or to Sirna’s knowledge threatened interference or opposition proceeding or any infringement or enforcement or other litigation. In the event that at any time after the Effective Date, Sirna becomes aware that any representation made under this Section 11.2 is no longer accurate, Sirna shall immediately notify GSK in accordance writing and provide the facts and details with respect to such change in status. In the event of any bankruptcy or insolvency of Sirna, or in the event of any default or material breach by Sirna of the terms of any of the Third Party License Agreements, in any such case as a result of which Sirna would reasonably be expected to no longer have the right to grant to GSK any of the licenses granted under any of the Third Party Agreements, then, in order to preserve GSK’s rights to practice the licenses granted to GSK under Section 4 of this Agreement, Sirna hereby agrees to provide reasonable assistance in the event that GSK and/or its termsAffiliate desires to obtain contractual privity directly with any party to one of the Third Party License Agreements to establish GSK and/or its Affiliate as a stand-in licensee under any of the Third Party License Agreements such that GSK and/or its Affiliate may continue to practice as a licensee under any of the Third Party License Agreements.
10.2 RII represents 11.3 EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, NO PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES AS TO ANY MATTER WHATSOEVER. ACCORDINGLY, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, EACH PARTY HEREBY EXPRESSLY DISCLAIMS ALL * Indicates that certain information contained herein has been omitted and warrants that:
filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AGAINST NON-INFRINGEMENT OR THE LIKE, INCLUDING (a) it has the full power and authority to enter into and fully perform this Agreement;
THAT ANY SIRNA PATENT OR TECHNOLOGY OR THE PRACTICE THEREOF OR ANY LICENSED PRODUCTS WILL IN THE FUTURE BE FREE FROM CLAIMS OF PATENT INFRINGEMENT, INTERFERENCE OR UNLAWFUL USE OF PROPRIETARY INFORMATION OF ANY PERSON AND (b) this Agreement constitutes the valid and binding obligations of RII enforceable against it in accordance with its terms;
(c) the executionOF THE RELIABILITY, delivery and performance by RII of this Agreement will not conflict withTECHNOLOGICAL OR COMMERCIAL VALUE OR MERCHANTABILITY OF THE SIRNA PATENTS OR ANY LICENSED PRODUCTS, or result in a breach or termination of or constitute a default under, any lease, agreement, commitment or other instrument to which RII is a party;
(d) it has not represented to any Person that RCC is an agent or representative of RII for any purpose and will not do so during the Term;
(e) it has not represented to any Person that RCC and RII are not separate entities and will not do so during the Term;
(f) it has not represented to any Person that RCC is a subsidiary or parent of RII and will not do so during the Term;
(g) it has not represented to any Person that RCC and RII do not operate separate businesses and will not do so during the Term; and
(h) the RII Network will be maintained and operated in material compliance with all applicable federal, state, local and foreign lawsOR THEIR FITNESS THEREOF FOR ANY PARTICULAR PURPOSE.
10.3 RII shall defend11.4 EXCEPT FOR THOSE CLAIMS OF A THIRD PARTY AS MAY BE PAYABLE PURSUANT TO THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, NEITHER SIRNA, ON THE O▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇ THE OTHER HAND, NOR ANY OF THEIR AFFILIATES, THIRD PARTY LICENSEES OR REPRESENTATIVES WILL BE LIABLE TO THE OTHER PARTY, ITS AFFILIATES OR ANY OF THEIR THIRD PARTY LICENSEES OR REPRESENTATIVES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY), INDEMNITY OR CONTRIBUTION, AND IRRESPECTIVE OF WHETHER THAT PARTY OR ANY REPRESENTATIVE OF THAT PARTY HAS BEEN ADVISED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF, ANY SUCH LOSS OR DAMAGE. IN ADDITION, THE LIABILITY OF SIRNA TO GSK WITH RESPECT TO THE SUBJECT MATTER OF ARTICLE 8 FOR ANY PRE-CLINICAL RESEARCH SUPPLY (NOT FOR USE IN HUMANS) HEREUNDER (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, IN TORT, OR OTHERWISE) WILL BE LIMITED TO THE AGGREGATE AMOUNT PAID BY GSK TO SIRNA FOR THE MANUFACTURE AND SUPPLY BY SIRNA TO GSK OF LEADS, LEAD COMPOUNDS, BACKUP COMPOUNDS, AND COMPOUNDS.
11.5 GSK hereby agrees to indemnify, defend and hold RCC harmless fromSirna, againstits Affiliates, and in respect of their respective directors, officers, employees, agents and their respective successors, heirs and assigns (the “Sirna Indemnitees”) harmless from and against any and all claimslosses, costs, claims, damages, liabilities or expenses (including reasonable attorneys’ and professional fees and other expenses of counsel)litigation) (collectively, liabilities, obligations, losses, damages, actions, suits or proceedings, of any nature (i“Liabilities”) arising out of claims, suits, actions or demands, in each case brought by a third party or judgments arising therefrom (including those arising out of personal injury claims) (each a “Claim”) as a result of (a) activities of GSK, its Affiliates or Third Party Licensees, or any Third Party acting on behalf of or under authorization by GSK in connection with GSK’s Development, manufacture (to the extent GSK or any Third Party acting on behalf of GSK manufactures Target Compounds, Lead Compounds, Backup Compounds or Licensed Products), commercialization, or other use or handling of Target Compounds, Lead Compounds, Backup Compounds and Licensed Products, or (b) a breach of the terms and conditions of this Agreement by RII; (ii) arising from GSK or in connection with the assertion against RCC of any claim, whether at law or in equity, in contract or in tort, or arising under or by virtue of any statute, regulation or common law theory of liability, including any claim for payment or performance of any obligation, debt, or liability, whether fixed or contingent, in connection with RII's use of the RCC Marks and/or Related Content, (iii) resulting from the negligence or willful misconduct of RII, its officers, directors, employees, agents or contractors, (iv) resulting from, or arising out of any RII Customer Sales/Use Tax Event (as such term is defined in SECTION 9.3), or (v) arising from or in connection with the assertion against RCC of any claim, whether at law or in equity, in contract or in tort, associated with the sale of RCC Products or RCC Auction Products by RII, but excluding any such claim that arises from any conduct or omission of RCC. Notwithstanding the foregoing, RII shall not have any obligation to RCC under this SECTION 10.3 with respect to any claims arising in connection with a breach by RCC of its representations in SECTION 10.1(d), or if such claim is a result of RCC providing an infringing or defective product.
10.4 RCC shall defend, indemnify, and hold RII harmless from, against, and in respect of any and all claims, costs, expenses (including reasonable fees of counsel), liabilities, obligations, losses, damages, actions, suits or proceedings, of any nature (i) arising in connection with the breach of this Agreement by RCC (including, but not limited to any claims arising in connection with a breach by RCC of its representations in SECTION 10.1(d)); (ii) arising from or in connection with the assertion against RII of any claim, whether at law or in equity, in contract or in tort, or arising under or by virtue of any statute, regulation or common law theory of liability, including any claim for payment or performance of any obligation, debt, or liability, whether fixed or contingent, in connection with RCC's use of the RCC Marks and/or Related Content; or (iii) resulting from the negligence or willful misconduct of RCC, its officers, directors, employees, agents or contractors.
10.5 With respect to any claim warranties made by party pursuant to SECTION 10.3 or SECTION 10.4 (each such claim is referred to herein as a "Claim"), the party obligated to provide indemnification hereunder (the "Indemnifying Party") shall, at its expense, have the right to participate in, and, at its option, to assume the defense of each such Claim. Promptly upon becoming aware of such Claim, the party entitled to indemnification hereunder (the "Indemnified Party"), shall give the Indemnifying Party written notice thereofGSK in this Agreement; provided, however, that GSK’s obligations pursuant to this Section 11.5 will not apply to the failure extent such Claims result from (i) the negligence, recklessness, bad faith, intentional wrongful acts or omissions of any of the Sirna Indemnitees or (ii) material breach of the terms and conditions of this Agreement by any of the Sirna Indemnitees.
11.6 Sirna hereby agrees to indemnify, defend and hold GSK, its Affiliates, and their respective directors, officers, employees, agents and their respective successors, heirs and assigns (the “GSK Indemnitees”) harmless from and against any Liabilities arising out of Claims, as a result of (a) activities of Sirna, its Affiliates, or any Third Party acting on behalf of or under authorization by Sirna in connection with Sirna’s performance of its responsibilities and activities under the Research Plan, or the development (where permitted hereunder), manufacture (to the extent Sirna or a Third Party acting on behalf of Sirna manufactures Target Compounds, Lead Compounds, Backup Compounds or Licensed Products hereunder), commercialization (where permitted hereunder), or other use or handling of any Leads, Target Compounds, Lead Compounds, Backup Compounds, or Licensed Products, or (b) a breach of the terms and conditions of this Agreement by Sirna or a breach of any of the representations and warranties made by Sirna in this Agreement; provided, however, that Sirna’s obligations pursuant to this Section 11.6 will not apply to the extent such Claims result from (i) the negligence, recklessness, bad faith, intentional wrongful acts or omissions of any of the GSK Indemnitees or (ii) material breach of the terms and conditions of this Agreement by any of the GSK Indemnitees.
11.7 In the event a Claim is made against a Sirna Indemnitee or GSK Indemnitee, as applicable (each, an “Indemnified Party”) with respect to which it is entitled to indemnification under this Article 11, such Indemnified Party will promptly notify the Party having such indemnification obligation (the “Indemnifying Party”) of such Claim and the facts constituting the basis for the Claim and the Indemnifying Party may, at its option, elect to assume control of the defense of such Claim with counsel reasonably acceptable to such Indemnified Party; provided, however, that (a) the Indemnified Party will be entitled to participate therein (through counsel of its own choosing) at the Indemnified Party’s sole cost and expense, and provided, further, that, if the litigants in any such action include both the Indemnified Party and the Indemnifying Party and reputable legal counsel for the Indemnified Party will have reasonably concluded in a written legal opinion delivered to the Indemnifying Party that, by reason of certain bona fide defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party, the interests of the Indemnified Party to notify materially conflict with the interests of the Indemnifying Party such that it would be unethical under applicable rules relating to attorney conflicts of a Claim shall not relieve interest for the Indemnifying Party of any liability it may have and such Indemnified Party to be represented by the Indemnified Partysame counsel with respect to such defense, except to the extent that the Indemnifying Party is actually prejudiced by such failure. If the Indemnifying Party elects to assume the defense of a Claim, following its written notice of such election to the Indemnified Party, the Indemnifying Party shall not be liable to the Indemnified Party in connection will have the right to select a separate counsel and to assume such legal defenses, with any costs incurred by the Indemnified Party after the date reasonable expenses and fees of such notice for the defense of separate counsel and other expenses related to such Claim. Any settlement of any Claim participation to be reimbursed by the Indemnifying Party shall not require the consent of the Indemnified Party so long as the settlement includes a full release of the Indemnified Party with respect to the Claim. Once and when incurred and (b) the Indemnifying Party has assumed the defense of a Claim, so long as the Indemnifying Party is reasonably pursuing the defense of the Claim, the Indemnified Party shall will not settle or compromise any such Claim without the prior written consent of the Indemnifying PartyIndemnified Parties, which consent shall not be unreasonably withheld unless such settlement or delayed. Notwithstanding compromise consists solely of the right payment of money by the Indemnifying Party to assume the defense and includes a general release of any Claim, the Indemnified Party shall have Parties from any and all liability with respect thereto. The Indemnified Parties will reasonably cooperate with and provide full information with respect to any Claim for which the right, at its expense, to employ separate counsel and to participate in the defense of such ClaimIndemnified Parties seek indemnification hereunder.
10.6 The indemnification 11.8 Nothing in this Article 11 relieves Sirna of its obligations and procedures set forth in SECTIONS 10.3 - 10.5 shall survive the termination under Article 9 of this Agreement.
Appears in 1 contract
Sources: Strategic Alliance Agreement (Sirna Therapeutics Inc)