SUBSTANCE ADMINISTERED IN ANY CLINICAL TRIAL OR STUDY.
6.4
PROCEDURES.
THE INDEMNIFIED PARTY SHALL PROMPTLY
NOTIFY COMPANY OF ANY CLAIM OR ACTION GIVING RISE TO A LIABILITY SUBJECT TO THE
PROVISIONS OF SECTION ?6.2.
COMPANY SHALL HAVE THE RIGHT TO DEFEND ANY SUCH
CLAIM OR ACTION, AT ITS COST AND EXPENSE, WITH COUNSEL REASONABLY SATISFACTORY
TO WISTAR.
COMPANY SHALL NOT SETTLE OR COMPROMISE ANY SUCH CLAIM OR ACTION IN A
MANNER THAT (I) IMPOSES ANY RESTRICTIONS OR OBLIGATIONS ON ANY INDEMNIFIED PARTY
WITHOUT SUCH INDEMNIFIED PARTY'S PRIOR WRITTEN CONSENT, OR (II) GRANTS ANY
RIGHTS TO THE LICENSED PATENTS WITHOUT WISTAR'S PRIOR WRITTEN CONSENT.
IF
COMPANY FAILS OR DECLINES TO ASSUME THE DEFENSE OF ANY SUCH CLAIM OR ACTION
WITHIN THIRTY (30) DAYS AFTER NOTICE THEREOF, WISTAR MAY ASSUME THE DEFENSE OF
SUCH CLAIM OR ACTION FOR THE ACCOUNT AND AT THE RISK OF COMPANY, AND ANY
LIABILITY RELATED THERETO SHALL BE CONCLUSIVELY DEEMED A LIABILITY OF COMPANY.
COMPANY SHALL PAY PROMPTLY TO THE INDEMNIFIED PARTY ANY LIABILITIES TO WHICH THE
FOREGOING INDEMNITY RELATED, AS INCURRED.
THE INDEMNIFICATION RIGHTS OF THE
INDEMNIFIED PARTIES CONTAINED HEREIN ARE IN ADDITION TO ALL OTHER RIGHTS WHICH
SUCH INDEMNIFIED PARTIES MAY HAVE AT LAW OR IN EQUITY OR OTHERWISE.
6.5
INSURANCE.
COMPANY SHALL MAINTAIN GENERAL LIABILITY
AND PRODUCT LIABILITY INSURANCE AS FOLLOWS:
6.5.1.
BEGINNING WITH THE EFFECTIVE DATE AND FOR TEN (10) YEARS AFTER THE
DATE OF EXPIRATION OR TERMINATION OF THIS AGREEMENT, GENERAL LIABILITY INSURANCE
IN AMOUNTS NOT LESS THAN ONE MILLION U.S. DOLLARS ($1,000,000 USD) PER INCIDENT
AND TWO MILLION U.S. DOLLARS
($2,000,000 USD) IN THE AGGREGATE; AND
6.5.2.
BEGINNING WITH THE COMMENCEMENT OF CLINICAL TRIALS AND FOR TEN (10)
YEARS AFTER THE DATE OF EXPIRATION OR TERMINATION OF THIS AGREEMENT, PRODUCT
LIABILITY INSURANCE IN AMOUNTS NOT LESS THAN TEN MILLION U.S. DOLLARS
($10,000,000 USD) PER INCIDENT AND TEN MILLION DOLLARS U.S. ($10,000,000 USD) IN
THE AGGREGATE.
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6.5.3.
SUCH INSURANCE SHALL BE ISSUED BY AN INSURANCE COMPANY RATED AA OR
BETTER AND NAMING WISTAR AS AN ADDITIONAL INSURED.
THE MINIMUM INSURANCE
AMOUNTS SPECIFIED HEREIN SHALL NOT BE DEEMED A LIMITATION ON COMPANY'S
INDEMNIFICATION LIABILITY UNDER THIS AGREEMENT.
COMPANY SHALL PROVIDE WISTAR
WITH COPIES OF ENDORSEMENTS TO SUCH POLICIES.
COMPANY SHALL NOTIFY WISTAR AT
LEAST THIRTY (30) DAYS PRIOR TO CANCELLATION OF ANY SUCH COVERAGE.
TO THE
EXTENT COMPANY IS AWARDED A BUSINESS INTERRUPTION INSURANCE AWARD WHICH PROVIDES
FOR LOST PROFITS, COMPANY SHALL PAY TO WISTAR REASONABLE ROYALTIES FOR THE
PERIOD OF THE AWARD WHICH PAYMENT SHALL BE BASED UPON PROJECTIONS OF NET SALES
OF LICENSED PRODUCTS AND THE HISTORY OF ROYALTIES PAID HEREUNDER FOR SUCH NET
SALES.
6.5.4.
COMPANY SHALL REQUIRE ANY SUBLICENSEE TO MAINTAIN INSURANCE UNDER
THE SAME TERMS AS SET FORTH IN SECTIONS .16.5.1 AND .2 ABOVE,
INCLUDING NAMING WISTAR AS AN ADDITIONAL INSURED.
ARTICLE 7 - PATENTS AND INFRINGEMENT
7.1
PROSECUTION OF PATENTS.
7.1.1.
SUBJECT TO SECTION 7.1 AND ITS SUBSECTIONS, WISTAR SHALL HAVE THE
EXCLUSIVE RESPONSIBILITY AND CONTROL OVER THE PROSECUTION OF THE LICENSED
PATENTS.
UPON EXECUTION