PAID BY TMC, NYCOMED SHALL REIMBURSE THE AMOUNT THEREOF TO TMC. NYCOMED
REMAINS RESPONSIBLE TO THE LOCAL VAT AUTHORITIES FOR INTRODUCING ANY PERIODICAL
VAT RETURNS AND PAYING ANY VAT DUE WITH RESPECT TO THE SERVICE FEE, IF REQUIRED
TO DO SO UNDER THE APPLICABLE VAT LAW AND REGULATIONS. TMC SHALL PROVIDE NYCOMED
WITH A CERTIFICATE OF RESIDENCE AND OTHER DOCUMENTS WHICH NYCOMED MAY REASONABLY
REQUEST IN ORDER TO DEMONSTRATE THAT TMC IS A TAX RESIDENT OF THE UNITED STATES.
10.4.
PAYMENT DATES. TMC SHALL PAY NYCOMED'S INVOICES FOR THE SERVICE FEE
ON A QUARTERLY BASIS IN ACCORDANCE WITH SECTION 8 OF THE TRANSITION AGREEMENT.
10.5.
ALL INCLUSIVE. OTHER THAN THE PAYMENT OBLIGATIONS IN THIS SECTION
10, TMC SHALL HAVE NO OTHER PAYMENT OBLIGATIONS TO NYCOMED WITH RESPECT TO THE
SERVICES UNDER THIS AGREEMENT AND THE PHARMACOVIGILANCE QP AGREEMENT. FOR THE
SAKE OF CLARITY, THE FTE COSTS COVER, WITHOUT ANY ADDITIONAL CHARGE TO TMC, THE
COSTS OF SUPPORTING THE NYCOMED EMPLOYEES AND THE PROVISION OF THE SERVICES
(INCLUDING ALL COSTS OF TRAVEL, AUTOMOBILES, OTHER TRANSPORTATION,
16
LODGING, MEALS, USE OF COMPUTERS AND COMPUTING FACILITIES, OFFICE SPACE,
ADMINISTRATIVE SUPPORT, CORPORATE EXECUTIVE SUPPORT AND OTHER INFRASTRUCTURE),
CONSISTENT WITH NYCOMED'S PAST PRACTICES UNDER THE FORMER DISTRIBUTION AGREEMENT
AND THE MANNER IN WHICH NYCOMED SUPPORTS ITS OTHER EMPLOYEES PERFORMING SIMILAR
ACTIVITIES.
11.
WARRANTY AND INDEMNIFICATION
11.1.
PERFORMANCE BY NYCOMED. NYCOMED HEREBY WARRANTS THAT (A) NYCOMED
WILL USE COMMERCIALLY REASONABLE EFFORTS TO PERFORM THE SERVICES IN A
PROFESSIONAL, TIMELY, COMPETENT AND EFFICIENT MANNER; (B) SUBJECT TO SECTION
4.1, NYCOMED HAS THE RESOURCES AND SKILLED EMPLOYEES TO PERFORM ITS OBLIGATIONS
UNDER THIS AGREEMENT; AND (C) NYCOMED SHALL ABIDE BY ALL LAWS THAT APPLY TO THE
PERFORMANCE OF THE SERVICES TO BE PERFORMED HEREUNDER.
11.2.
NYCOMED NOT AUTHORIZED TO BIND TMC. NOTHING IN THIS AGREEMENT SHALL
BE DEEMED TO AUTHORIZE NYCOMED TO ACT FOR, REPRESENT, OR BIND TMC OR ANY OF ITS
AFFILIATES OTHER THAN AS SPECIFICALLY PROVIDED BY THIS AGREEMENT.
11.3.
INDEMNIFICATIONS.
(A)
NYCOMED HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS TMC,
ALL AFFILIATES OF TMC AND ALL OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS THEREOF
FROM ALL LIABILITIES, CLAIMS, DAMAGES, LOSSES, COSTS, EXPENSES, DEMANDS, SUITS
AND ACTIONS (INCLUDING WITHOUT LIMITATION ATTORNEYS' FEES, EXPENSES AND
SETTLEMENT COSTS) (COLLECTIVELY, "DAMAGES") ARISING OUT OF:
(I) NYCOMED'S
BREACH OF ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR THE PHARMACOVIGILANCE
QP AGREEMENT; OR (II) NYCOMED'S MAKING REPRESENTATIONS OR WARRANTIES WHICH ARE
NOT AUTHORIZED BY TMC HEREUNDER.
(B)
TMC HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS NYCOMED,
AFFILIATES OF NYCOMED AND ALL OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS THEREOF
FROM ALL DAMAGES ARISING OUT OF TMC'S BREACH OF ANY OF ITS OBLIGATIONS UNDER
THIS AGREEMENT OR THE PHARMACOVIGILANCE QP AGREEMENT.
(C)
IN THE EVENT A CLAIM IS BASED PARTIALLY ON AN INDEMNIFIED CLAIM
DESCRIBED IN SECTIONS 11.3(A) AND/OR 11.3(B) ABOVE AND PARTIALLY ON A
NON-INDEMNIFIED CLAIM, OR IS BASED PARTIALLY ON A CLAIM DESCRIBED IN SECTION
11.3(A) ABOVE AND PARTIALLY ON A CLAIM DESCRIBED IN SECTION 11.3(B) ABOVE, ANY
PAYMENTS AND REASONABLE