SHALL BE REIMBURSED ON A
CALENDAR QUARTER BASIS BY THE INDEMNIFYING PARTY, WITHOUT PREJUDICE TO THE
INDEMNIFYING PARTY'S RIGHT TO CONTEST THE INDEMNIFIED PARTY'S RIGHT TO
INDEMNIFICATION AND SUBJECT TO REFUND IN THE EVENT THE INDEMNIFYING PARTY IS
ULTIMATELY HELD NOT TO BE OBLIGATED TO INDEMNIFY THE INDEMNIFIED PARTY.
SECTION 11.5
INSURANCE.
EACH PARTY SHALL MAINTAIN AT ITS SOLE COST AND
EXPENSE, AN ADEQUATE LIABILITY INSURANCE OR SELF-INSURANCE PROGRAM (INCLUDING
CLINICAL TRIALS AND PRODUCT LIABILITY INSURANCE) TO PROTECT AGAINST POTENTIAL
LIABILITIES AND RISK ARISING OUT OF ACTIVITIES TO BE PERFORMED UNDER THIS
AGREEMENT AND ANY AGREEMENT RELATED HERETO AND UPON SUCH TERMS (INCLUDING
COVERAGES, DEDUCTIBLE LIMITS AND SELF-INSURED RETENTIONS) AS ARE CUSTOMARY IN
THE U.S. PHARMACEUTICAL INDUSTRY FOR THE ACTIVITIES TO BE CONDUCTED BY SUCH
PARTY UNDER THIS AGREEMENT.
AS APPLICABLE, BMS WILL NAME ISIS AS AN ADDITIONAL
INSURED AND WILL UPON REQUEST PROVIDE ISIS
39
WITH A CERTIFICATE OF INSURANCE.
BMS WILL PROMPTLY NOTIFY ISIS OF ANY MATERIAL
CHANGE IN INSURANCE OR SELF-INSURANCE COVERAGE OR LAPSE IN COVERAGE IN THAT
REGARD.
SECTION 11.6
LIMITATION OF LIABILITY.
NEITHER PARTY HERETO WILL BE
LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR
MULTIPLE DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT OR THE EXERCISE OF
ITS RIGHTS HEREUNDER, OR FOR LOST PROFITS ARISING FROM OR RELATING TO ANY BREACH
OF THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF SUCH DAMAGES, PROVIDED HOWEVER,
THAT THIS SECTION 11.6 SHALL NOT LIMIT OR RESTRICT (I) DAMAGES AVAILABLE FOR
BREACHES OF CONFIDENTIALITY OBLIGATIONS ARTICLE 7 AND (II) DAMAGES AVAILABLE FOR
WILLFUL BREACHES OF ARTICLE 12.
IN ADDITION, THE RIGHTS OF TERMINATION BY ISIS
UNDER SECTION 9.4 AND THE EFFECT OF SUCH TERMINATION AS SET FORTH IN SECTIONS
9.5 AND 10.1 SHALL BE ISIS'S ONLY REMEDY AND BMS'S ONLY LIABILITY WITH RESPECT
TO OR RESULTING FROM BMS'S BREACH OF ITS OBLIGATIONS AS SET FORTH IN SECTION
4.1.
ARTICLE 12 -
REPRESENTATIONS AND WARRANTIES
SECTION 12.1
REPRESENTATIONS, WARRANTIES AND COVENANTS.
EACH PARTY
HEREBY REPRESENTS AND WARRANTS AS OF THE EFFECTIVE DATE AND COVENANTS TO THE
OTHER PARTY THAT:
(a)
it has the power and authority and the legal right to enter into this
Agreement and perform its obligations hereunder, and that it has taken all
necessary action on its part required to authorize the execution and delivery of
this Agreement and the performance of its obligations hereunder;
(b)
this Agreement has been duly executed and delivered on behalf of such Party
and constitutes a legal, valid and binding obligation of such Party and is
enforceable against it in accordance with its terms subject to the effects of
bankruptcy, insolvency or other laws of general application affecting the
enforcement of creditor rights and judicial principles affecting the
availability of specific performance and general principles of equity, whether
enforceability is considered a proceeding at law or equity;
(c)
all necessary consents, approvals and authorizations of all Regulatory
Authorities and other parties required to be obtained by such Party in
connection with the execution and delivery of this Agreement and the