THE INDEMNIFIED PARTY OF, RECORDS AND INFORMATION THAT ARE
REASONABLY RELEVANT TO SUCH THIRD PARTY CLAIM, AND MAKING INDEMNIFIED PARTIES
AND OTHER EMPLOYEES AND AGENTS AVAILABLE ON A MUTUALLY CONVENIENT BASIS TO
PROVIDE ADDITIONAL INFORMATION AND EXPLANATION OF ANY MATERIAL PROVIDED
HEREUNDER, AND THE INDEMNIFYING PARTY SHALL REIMBURSE THE INDEMNIFIED PARTY FOR
ALL ITS REASONABLE OUT-OF-POCKET COSTS AND EXPENSES IN CONNECTION THEREWITH.
(E)
COSTS AND EXPENSES.
EXCEPT AS PROVIDED
ABOVE IN THIS SECTION 10.4, THE COSTS AND EXPENSES, INCLUDING ATTORNEYS' FEES
AND EXPENSES, INCURRED BY THE INDEMNIFIED PARTY IN CONNECTION WITH ANY CLAIM
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 10.5
INSURANCE.
EACH PARTY SHALL MAINTAIN AT
ITS SOLE COST AND EXPENSE, AN ADEQUATE LIABILITY INSURANCE OR SELF-INSURANCE
PROGRAM (INCLUDING, IN THE CASE OF BMS, 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.
SECTION 10.6
LIMITATION OF LIABILITY.
NEITHER PARTY
HERETO WILL BE LIABLE FOR THE OTHER PARTY'S INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL, EXEMPLARY, PUNITIVE OR MULTIPLE DAMAGES ARISING IN
26
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 10.6 SHALL NOT LIMIT OR RESTRICT (I) DAMAGES AVAILABLE FOR BREACHES OF
CONFIDENTIALITY OBLIGATIONS SET FORTH IN ARTICLE 7 AND (II) DAMAGES AVAILABLE
FOR WILLFUL BREACHES OF ARTICLE 11.
ARTICLE 11 -
REPRESENTATIONS AND WARRANTIES
SECTION 11.1
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