SELECTED, THE INDEMNIFYING
PARTY WILL NOT BE SUBJECT TO ANY LIABILITY FOR ANY SETTLEMENT OF SUCH CLAIMS
MADE BY THE INDEMNIFIED PARTY WITHOUT ITS CONSENT (BUT SUCH CONSENT WILL NOT BE
UNREASONABLY WITHHELD OR DELAYED), AND WILL NOT BE OBLIGATED TO PAY THE FEES AND
EXPENSE OF ANY SEPARATE COUNSEL RENAMED BY THE INDEMNIFIED PARTY WITH RESPECT TO
SUCH CLAIMS.
16.
INSURANCE.
A.
KYOSEI SHALL PROCURE AND MAINTAIN A POLICY
OR POLICIES OF COMPREHENSIVE GENERAL LIABILITY INSURANCE, INCLUDING BROAD FORM
AND CONTRACTUAL LIABILITY, IN A MINIMUM AMOUNT OF $1,000,000 COMBINED SINGLE
LIMIT PER OCCURRENCE AND IN THE AGGREGATE AS RESPECTS PERSONAL INJURY, BODILY
INJURY AND PROPERTY DAMAGE ARISING OUT OF KYOSEI'S PERFORMANCE UNDER THIS
AGREEMENT.
B.
AS LONG AS IT IS CONSISTENT WITH SOUND
AND REASONABLE BUSINESS PRACTICES, KYOSEI SHALL, UPON COMMENCEMENT OF CLINICAL
TRIALS INVOLVING IMAGENT, PROCURE AND MAINTAIN A POLICY OR POLICIES OF PRODUCT
LIABILITY INSURANCE IN A MINIMUM AMOUNT OF $3,000,000 COMBINED SINGLE LIMIT PER
OCCURRENCE AND IN THE AGGREGATE AS RESPECTS BODILY INJURY AND PROPERTY DAMAGE
ARISING OUT OF KYOSEI'S PERFORMANCE UNDER THIS AGREEMENT.
C.
THE POLICY OR POLICIES OF INSURANCE
SPECIFIED HEREIN SHALL BE ISSUED BY AN INSURANCE CARRIER WITH AN A.M. BEST
RATING OF "A" OR BETTER AND SHALL NAME IMCOR AS AN ADDITIONAL INSURED WITH
RESPECT TO IMCOR'S PERFORMANCE UNDER THIS AGREEMENT.
KYOSEI SHALL PROVIDE IMCOR
WITH CERTIFICATES EVIDENCING THE INSURANCE COVERAGE REQUIRED HEREIN AND ALL
SUBSEQUENT RENEWALS THEREOF.
SUCH CERTIFICATES SHALL PROVIDE THAT KYOSEI'S
INSURANCE CARRIER(S) NOTIFY IMCOR IN WRITING AT LEAST 30 DAYS PRIOR TO
CANCELLATION OR MATERIAL CHANGE IN COVERAGE.
D.
IMCOR AND KYOSEI SHALL PERIODICALLY REVIEW
THE ADEQUACY OF THE MINIMUM LIMITS OF LIABILITY SPECIFIED HEREIN.
IF IMCOR AND
KYOSEI AGREE, AND IF ADDITIONAL INSURANCE IS REASONABLY AVAILABLE, ADDITIONAL
INSURANCE WILL BE OBTAINED.
THE SPECIFIED MINIMUM INSURANCE AMOUNTS SHALL NOT
CONSTITUTE A LIMITATION ON KYOSEI'S OBLIGATION TO INDEMNIFY IMCOR UNDER THIS
AGREEMENT.
13
17.
INDEPENDENT CONTRACTOR.
NOTHING HEREIN
SHALL BE DEEMED TO ESTABLISH A RELATIONSHIP OF PRINCIPAL AND AGENT BETWEEN IMCOR
AND KYOSEI, NOR ANY OF THEIR AGENTS OR EMPLOYEES FOR ANY PURPOSE WHATSOEVER.
THIS AGREEMENT SHALL NOT BE CONSTRUED AS CONSTITUTING IMCOR AND KYOSEI AS
PARTNERS, OR AS CREATING ANY OTHER FORM OF LEGAL ASSOCIATION OR ARRANGEMENT
WHICH WOULD IMPOSE LIABILITY UPON ONE PARTY FOR THE ACT OR FAILURE TO ACT OF THE
OTHER PARTY.
18.
ARBITRATION.
UPON FAILURE TO RESOLVE ANY
DISPUTE CONTROVERSY OR CLAIM ARISING OUT OF, RELATING TO OR IN CONNECTION WITH
ANY PROVISION OF THIS AGREEMENT, SUCH CONTROVERSY OR CLAIM SHALL BE FINALLY
SETTLED BY ARBITRATION.
ARBITRATION SHALL BE HELD IN SAN DIEGO, CALIFORNIA IN
THE ENGLISH LANGUAGE AND CONDUCTED IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION
RULES OF THE AMERICAN ARBITRATION ASSOCIATION.
THE DECISION OF SUCH ARBITRATION
SHALL BE CONCLUSIVE AND BINDING UPON BOTH PARTIES.
IF A PARTY COMMENCES ANY
ARBITRATION OR PROCEEDING AGAINST THE OTHER PARTY TO ENFORCE THIS AGREEMENT OR
ANY RIGHTS RELATED THERETO, THE PREVAILING PARTY IN SUCH ACTION SHALL BE
ENTITLED TO RECOVERY FROM THE OTHER PARTY THE REASONABLE