INDEMNIFIED PARTY MAY PARTICIPATE
THEREIN THROUGH COUNSEL OF ITS CHOICE, BUT THE COST OF SUCH COUNSEL SHALL BE
BORNE SOLELY BY THE INDEMNIFIED PARTY.
15.2
INDEMNIFICATION OF UNIVERSITY.
LICENSEE AGREES THAT IT WILL DEFEND,
INDEMNIFY AND HOLD HARMLESS UNIVERSITY, ITS FACULTY MEMBERS, SCIENTISTS,
36
RESEARCHERS, EMPLOYEES, OFFICERS, TRUSTEES, AGENTS AND EACH OF THEM (THE
"UNIVERSITY INDEMNIFIED PARTIES"), FROM AND AGAINST ANY AND ALL CLAIMS FILED OR
OTHERWISE INSTITUTED AGAINST ANY OF THE UNIVERSITY INDEMNIFIED PARTIES RELATED
DIRECTLY OR INDIRECTLY TO OR ARISING OUT OF THE DESIGN, PROCESS, MANUFACTURE, OR
USE BY ANY PERSON OR PARTY OF PRODUCT OR AS A RESULT OF THE EXERCISE BY
LICENSEE, ITS AFFILIATES OR SUBLICENSEES OF ANY RIGHTS GRANTED HEREUNDER,
INCLUDING WITHOUT LIMITATION ANY CLAIM BY A THIRD PARTY FOR INFRINGEMENT EVEN
THOUGH SUCH CLAIMS AND THE COSTS (INCLUDING BUT NOT LIMITED TO, THE PAYMENT OF
ALL REASONABLE ATTORNEYS' FEES AND COSTS OF LITIGATION OR OTHER DEFENSE) RELATED
THERETO ARE BASED UPON DOCTRINES OF STRICT LIABILITY OR PRODUCT LIABILITY;
PROVIDED, HOWEVER, THAT SUCH INDEMNITY WILL NOT APPLY TO ANY CLAIMS (I) ARISING
FROM GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT OF ANY UNIVERSITY
INDEMNIFIED PARTY, OR (II) WITH RESPECT TO WHICH LICENSOR IS OBLIGATED TO
INDEMNIFY LICENSEE PURSUANT TO SECTION 15.1, AND WHICH OBLIGATION LICENSOR HAS
ACKNOWLEDGED IN WRITING WITH RESPECT TO THE CLAIM.
LICENSEE WILL ALSO ASSUME
RESPONSIBILITY FOR ALL COSTS AND EXPENSES RELATED TO SUCH CLAIMS FOR WHICH IT IS
OBLIGATED TO INDEMNIFY THE UNIVERSITY INDEMNIFIED PARTIES PURSUANT TO THIS
SECTION 15, INCLUDING, BUT NOT LIMITED TO, THE PAYMENT OF ALL REASONABLE
ATTORNEYS' FEES AND COSTS OF LITIGATION OR OTHER DEFENSE.
UNIVERSITY SHALL BE
AN EXPRESS THIRD PARTY BENEFICIARY OF THIS SECTION 15.2.
15.3
NO CONSEQUENTIAL DAMAGES.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PARTY FOR ANY SPECIAL, CONSEQUENTIAL, LOST PROFIT, EXPECTATION, PUNITIVE OR
OTHER INDIRECT DAMAGES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATED TO
THIS AGREEMENT, WHETHER GROUNDED IN TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY, CONTRACT, OR OTHERWISE.
15.4
INSURANCE.
PRIOR TO THE ADMINISTRATION OF PRODUCT TO ANY HUMAN
BEING, LICENSEE WILL OBTAIN AND FOR THREE (3) YEARS FOLLOWING THE END OF THE
TERM, MAINTAIN COMPREHENSIVE GENERAL LIABILITY INSURANCE, INCLUDING PRODUCT
37
LIABILITY INSURANCE, WITH A REPUTABLE AND FINANCIALLY SECURE INSURANCE CARRIER
CONSISTENT WITH INDUSTRY STANDARDS, TO COVER THE ACTIVITIES OF LICENSEE, ITS
AFFILIATES AND SUBLICENSEES WITH ANNUAL COVERAGE LIMITS OF AT LEAST [*
*
*]
PER OCCURRENCE AND [*
*
*] IN THE AGGREGATE.
SUCH INSURANCE SHALL NAME
LICENSOR AND UNIVERSITY AS ADDITIONAL INSUREDS.
SUCH INSURANCE SHALL COVER
CLAIMS RELATING TO PRODUCT INCURRED, DISCOVERED, MANIFESTED OR MADE DURING OR
AFTER THE TERM OF THIS AGREEMENT. WITHIN FIFTEEN (15) DAYS OF THE EFFECTIVE DATE
OF SUCH INSURANCE, LICENSEE WILL FURNISH A CERTIFICATE OF INSURANCE EVIDENCING
COMPLIANCE WITH THESE COVERAGE REQUIREMENTS.
LICENSEE WILL PROVIDE LICENSOR AND
UNIVERSITY WITH PROMPT WRITTEN NOTICE OF CANCELLATION OR MATERIAL CHANGE
AFFECTING THESE COVERAGE REQUIREMENTS. SUCH INSURANCE WILL BE PRIMARY COVERAGE;
AND THE INSURANCE OF LICENSOR AND UNIVERSITY SHALL BE EXCESS AND
NONCONTRIBUTORY.
UNIVERSITY