OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS IN THE
COURSE OF PERFORMING ACTIVITIES
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UNDER THIS AGREEMENT, EXCEPT TO THE EXTENT THAT SUCH LOSSES ARE ATTRIBUTABLE TO
(I) GENENTECH'S BREACH OF ITS REPRESENTATIONS, WARRANTIES AND/OR COVENANTS UNDER
ARTICLE 11; (II) GENENTECH'S MATERIAL BREACH OF ITS OBLIGATIONS UNDER THIS
AGREEMENT; AND/OR (III) THE NEGLIGENCE OR WILLFUL MISCONDUCT OF THE INDEMNIFIED
PARTY(IES) IN THE COURSE OF PERFORMING ACTIVITIES UNDER THIS AGREEMENT.
(B)
INDEMNIFICATION PROCEDURES.
IN THE EVENT THAT GENENTECH SEEKS
INDEMNIFICATION UNDER THIS SECTION 12.3, IT SHALL (I) NOTIFY ARRAY OF ANY LOSSES
FOR WHICH IT CLAIMS SUCH INDEMNIFICATION WITHIN FIFTEEN (15) BUSINESS DAYS AFTER
IT RECEIVES NOTICE OF THE CLAIM; AND (II) IF REQUESTED BY GENENTECH, ASSUME
CONTROL OF THE DEFENSE THEREOF, WITH COUNSEL MUTUALLY SATISFACTORY TO THE
PARTIES.
IN THE EVENT GENENTECH REQUESTS THAT ARRAY ASSUME SUCH CONTROL,
GENENTECH SHALL (I) COOPERATE AS REASONABLY REQUESTED (AT THE EXPENSE OF ARRAY)
IN THE DEFENSE OF THE CLAIM; AND (II) ARRAY SHALL NOT SETTLE THE CLAIM WITHOUT
THE EXPRESS, PRIOR WRITTEN CONSENT OF GENENTECH.
12.4
LIMITATION ON LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE
FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER
CAUSED.
NOTHING IN THIS SECTION IS INTENDED TO LIMIT OR RESTRICT THE
INDEMNIFICATION RIGHTS OR OBLIGATIONS OF EITHER PARTY.
ARTICLE 13
INSURANCE
13.1
Coverages.
(A)
GENERAL.
EACH PARTY SHALL MAINTAIN, AT ITS OWN COST, AND PROVIDE EVIDENCE
OF THE INSURANCE COVERAGES AS SET FORTH IN THIS ARTICLE 13.
ALL INSURANCE
COVERAGES SHALL BE PRIMARY INSURANCE WITH RESPECT TO EACH PARTY'S OWN
PARTICIPATION UNDER THIS AGREEMENT, AND SHALL BE MAINTAINED WITH AN INSURANCE
COMPANY OR COMPANIES HAVING AN A.M. BEST'S RATING (OR ITS EQUIVALENT) OF A-XII
OR BETTER, IN THE CASE OF GENENTECH, AND A-VII OR BETTER, IN THE CASE OF ARRAY.
(B)
COMMERCIAL GENERAL LIABILITY.
FOR AS LONG AS A PARTY IS PERFORMING
OBLIGATIONS UNDER THE AGREEMENT, AND THEREAFTER FOR THE PERIOD OF TIME REQUIRED
UNDER THIS SECTION 13.1(B), EACH PARTY SHALL OBTAIN AND MAINTAIN, COMMERCIAL
GENERAL LIABILITY (CGL) INSURANCE, INCLUDING CONTRACTUAL LIABILITY, IN THE
MINIMUM AMOUNT OF [ * ].
THE CGL INSURANCE POLICIES SHALL BE AN OCCURRENCE
FORM, BUT IF ONLY A CLAIMS-MADE FORM IS AVAILABLE TO A PARTY, THEN IN SUCH A
CASE, SUCH PARTY SHALL MAINTAIN THE INSURANCE COVERAGE FOR AT LEAST [ * ]
FOLLOWING SUCH
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PARTY'S COMPLETING PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT.
EACH
PARTY'S AGGREGATE DEDUCTIBLES UNDER ITS CGL INSURANCE POLICIES SHALL BE
SATISFACTORY TO THE OTHER PARTY.
13.2
Additional Requirements.
(A)
ADDITIONAL INSURED.
WITH RESPECT TO THE INSURANCE COVERAGES SET FORTH IN
SECTION 13.1, EACH PARTY SHALL NAME THE OTHER PARTY AS AN ADDITIONAL INSURED BY
ENDORSEMENT UNDER ITS COMMERCIAL GENERAL LIABILITY INSURANCE POLICY.
(B)
CERTIFICATES OF INSURANCE.
PROMPTLY FOLLOWING THE EFFECTIVE DATE, EACH
PARTY SHALL PROVIDE TO THE OTHER PARTY ITS RESPECTIVE CERTIFICATES OF INSURANCE
EVIDENCING THE INSURANCE COVERAGES SET FORTH IN SECTION 13.1.
EACH PARTY SHALL
PROVIDE TO THE OTHER PARTY AT LEAST [ * ] PRIOR WRITTEN NOTICE OF ANY
CANCELLATION, NONRENEWAL OR MATERIAL