THE FAILURE OF ANY INDEMNIFIED PARTY TO GIVE NOTICE AS
PROVIDED HEREIN SHALL NOT RELIEVE THE INDEMNIFYING PARTY OF ITS OBLIGATIONS
UNDER THIS AGREEMENT TO THE EXTENT THAT THE FAILURE TO GIVE NOTICE DID NOT
RESULT IN HARM TO THE INDEMNIFYING PARTY;
(C)
NO INDEMNIFYING PARTY, IN THE DEFENSE OF ANY SUCH CLAIM.
DEMAND OR LITIGATION, SHALL, EXCEPT WITH THE APPROVAL OF EACH INDEMNIFIED PARTY
WHICH APPROVAL SHALL NOT BE UNREASONABLY WITHHELD, CONSENT TO ENTRY OF ANY
JUDGMENT OR ENTER INTO ANY SETTLEMENT WHICH (I) WOULD RESULT IN INJUNCTIVE OR
OTHER RELIEF BEING IMPOSED AGAINST THE INDEMNIFIED PARTY; OR (II) DOES
[***]
Information redacted pursuant to a confidential treatment request.
An unredacted version of this exhibit has been filed separately with the
Commission.
43
NOT INCLUDE AS AN UNCONDITIONAL TERM THEREOF THE GIVING BY THE CLAIMANT OR
PLAINTIFF TO SUCH INDEMNIFIED PARTY OF A RELEASE FROM ALL LIABILITY IN RESPECT
TO SUCH CLAIM OR LITIGATION.
THE INDEMNIFIED PARTY SHALL HAVE NO RIGHT TO
SETTLE OR COMPROMISE ANY SUCH CLAIM, DEMAND OR LITIGATION WITHOUT THE
INDEMNIFYING PARTY'S PRIOR WRITTEN CONSENT; AND
(D)
EACH INDEMNIFIED PARTY SHALL FURNISH SUCH INFORMATION
AND ASSISTANCE REGARDING ITSELF OR THE CLAIM OR DEMAND IN QUESTION AS AN
INDEMNIFYING PARTY MAY REASONABLY REQUEST IN WRITING AND SHALL BE REASONABLY
REQUIRED IN CONNECTION WITH THE DEFENSE OF SUCH CLAIM, DEMAND OR LITIGATION
RESULTING THEREFROM.
12.4
LIMITATION OF LIABILITY.
EXCEPT WITH RESPECT
TO THIRD-PARTY ACTIONS, SUITS, CLAIMS OR DEMANDS SUBJECT TO INDEMNIFICATION
PURSUANT TO SECTIONS 12.1 AND 12.2 ABOVE, NEITHER PARTY SHALL BE LIABLE TO THE
OTHER FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL
DAMAGES ARISING OUT OF OR RESULTING FROM THIS AGREEMENT.
12.5
INSURANCE.
EACH PARTY SHALL MAINTAIN AND KEEP
IN FORCE FOR THE TERM OF THIS AGREEMENT INSURANCE THAT SHALL BE ADEQUATE TO
COVER ITS INDEMNIFICATION OBLIGATIONS HEREUNDER AND THAT IS COMMENSURATE WITH
THE INSURANCE THAT SUCH PARTY MAINTAINS WITH RESPECT TO OTHER COMPARABLE
PHARMACEUTICAL OR BIOTECHNOLOGY PRODUCTS IT IS DEVELOPING AND/OR
COMMERCIALIZING.
IT IS UNDERSTOOD THAT SUCH INSURANCE SHALL NOT BE CONSTRUED TO
LIMIT A PARTY'S LIABILITY WITH RESPECT TO SUCH INDEMNIFICATION OBLIGATIONS.
SUCH INSURANCE SHALL BE PLACED WITH A FIRST CLASS INSURANCE CARRIER WITH AT
LEAST A BBB RATING BY STANDARD & POOR.
ARTICLE XIII - MISCELLANEOUS PROVISIONS
13.1
WAIVER.
NO PROVISION OF THE AGREEMENT MAY BE
WAIVED EXCEPT IN WRITING BY BOTH PARTIES HERETO.
NO FAILURE OR DELAY BY EITHER
PARTY HERETO IN EXERCISING ANY RIGHT OR REMEDY HEREUNDER OR UNDER APPLICABLE LAW
WILL OPERATE AS A WAIVER THEREOF, OR A WAIVER OF THAT OR ANY OTHER RIGHT OR
REMEDY ON ANY SUBSEQUENT OCCASION.
13.2
FORCE MAJEURE.
NEITHER PARTY WILL BE IN BREACH
HEREOF BY REASON OF ITS DELAY IN THE PERFORMANCE OF OR FAILURE TO PERFORM ANY OF
ITS OBLIGATIONS HEREUNDER, IF THAT DELAY OR FAILURE IS CAUSED BY FIRE, FLOODS,
EMBARGOES, WAR, TERRORISM, INSURRECTIONS, RIOTS, CIVIL COMMOTIONS, STRIKES,
LOCKOUTS OR OTHER LABOR DISTURBANCES, SABOTAGE, ACTS OF GOD, OMISSIONS OR DELAYS
IN ACTING BY ANY GOVERNMENTAL AUTHORITY, ACTS OF A GOVERNMENT