SUPERGEN, ASSIST SUPERGEN IN EFFECTING A RECALL, OR
PROVIDING OR DISSEMINATING INFORMATION, ALL ON A TIME AND MATERIALS BASIS.
SUPERGEN IS RESPONSIBLE FOR COMPLIANCE WITH THE REQUIREMENTS OF THE REGULATORY
AUTHORITIES CONCERNING THE REPORTING OF ADVERSE EFFECTS WHICH MAY OCCUR AS THE
RESULT OF THE USE OF THE API.
16.
FORCE MAJEURE
16.1
EXCUSING PERFORMANCE.
EITHER PARTY SHALL BE EXCUSED FROM PERFORMING
ITS OBLIGATIONS UNDER THIS AGREEMENT TO THE EXTENT THAT ITS PERFORMANCE IS
DELAYED OR PREVENTED BY AN EVENT BEYOND SUCH PARTY'S REASONABLE CONTROL,
INCLUDING, BUT NOT LIMITED TO, ACTS OF GOD, FIRE, FLOOD, EARTHQUAKE, EXPLOSION,
WEATHER, DISEASE, WAR, INSURRECTION, CIVIL STRIFE, RIOTS, GOVERNMENT ACTION, OR
POWER FAILURE (SUCH EVENT, A "FORCE MAJEURE EVENT").
UPON THE OCCURRENCE OF A
FORCE MAJEURE EVENT, THE PARTY WHOSE PERFORMANCE IS SO AFFECTED SHALL PROMPTLY
GIVE WRITTEN NOTICE TO THE OTHER PARTY OF THE OCCURRENCE OR CIRCUMSTANCES UPON
WHICH IT INTENDS TO RELY TO EXCUSE ITS PERFORMANCE.
DUTIES AND OBLIGATIONS OF
BOTH PARTIES SHALL BE SUSPENDED FOR THE DURATION OF THE FORCE MAJEURE EVENT;
PROVIDED, HOWEVER, A PARTY SHALL NOT BE RELIEVED OF ITS OBLIGATION TO MAKE
PAYMENTS ALREADY DUE AND PAYABLE FOR SERVICES PERFORMED PRIOR TO THE FORCE
MAJEURE EVENT.
16.2
RESUMPTION.
EACH PARTY SHALL EMPLOY REASONABLE EFFORTS, AT ITS COST,
TOWARD RESUMPTION OF ITS PERFORMANCE HEREUNDER IF SUCH PERFORMANCE IS DELAYED OR
INTERRUPTED BY REASON OF A FORCE MAJEURE EVENT.
17.
INDEMNIFICATION AND LIMIT OF LIABILITY
17.1
SUPERGEN'S INDEMNIFICATION.
SUPERGEN SHALL DEFEND, INDEMNIFY, AND HOLD
HARMLESS HAUSER, ITS OFFICERS, AGENTS, EMPLOYEES AND AFFILIATES FROM ANY LOSS,
CLAIM, ACTION, DAMAGE, EXPENSE OR LIABILITY (INCLUDING REASONABLE DEFENSE COSTS
AND REASONABLE ATTORNEYS' FEES) (A "HAUSER LOSS") ARISING OUT OF OR RELATING TO:
(A)
THE BREACH OF ANY REPRESENTATION, WARRANTY OR OBLIGATION
MADE BY SUPERGEN HEREIN; OR
(B)
THE HANDLING, POSSESSION, USE, SALE OR DISTRIBUTION BY
SUPERGEN OR ITS AFFILIATES OF PENTOSTATIN CRUDE CONCENTRATE OR API, INCLUDING
PACKAGED API, INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS ARISING OUT OF OR IN
CONNECTION WITH THE DESIGN, DEVELOPMENT, MANUFACTURE, ASSEMBLY, PACKAGING OR
LABELING OF API OR PACKAGED API; OR
(C)
INFRINGEMENT OF A TRADEMARK OWNED BY A THIRD PARTY
RELATING TO THE PROCESSING; OR
15
(D)
NEGLIGENCE OR WILLFUL MISCONDUCT OF SUPERGEN OR ITS
OFFICERS, AGENTS OR EMPLOYEES.
SUPERGEN'S INDEMNIFICATION OBLIGATION PURSUANT TO THIS SECTION 17.1 SHALL BE
LIMITED PROPORTIONATELY (BUT NOT EXTINGUISHED) TO THE EXTENT ANY SUCH HAUSER
LOSS IS DUE TO THE NEGLIGENCE OR WILLFUL MISCONDUCT OF HAUSER OR ITS AFFILIATES,
OFFICERS, AGENTS, OR EMPLOYEES, DUE TO A BREACH BY HAUSER OF ANY OF ITS
REPRESENTATIONS, WARRANTIES OR OBLIGATIONS IN THIS AGREEMENT, OR TO THE EXTENT
HAUSER IS REQUIRED TO INDEMNIFY SUPERGEN WITH RESPECT TO THE SAME CIRCUMSTANCE.
SUPERGEN SHALL NOT BE LIABLE FOR ANY CIVIL OR REGULATORY LIABILITIES RELATING TO
THE DISPOSAL BY HAUSER OF ANY HAZARDOUS OR NON-HAZARDOUS WASTE GENERATED BY
HAUSER.
17.2
HAUSER'S INDEMNIFICATION.
HAUSER SHALL DEFEND, INDEMNIFY, AND HOLD
HARMLESS SUPERGEN, ITS OFFICERS, AGENTS, EMPLOYEES AND AFFILIATES FROM ANY LOSS,
CLAIM, ACTION, DAMAGE, EXPENSE OR LIABILITY (INCLUDING REASONABLE DEFENSE COSTS