CLAIM INDEMNIFICATION UNDER THIS ARTICLE XII (THE
"INDEMNITEE") SHALL PROMPTLY NOTIFY THE OTHER PARTY (THE "INDEMNITOR") OF ANY
LOSS, CLAIM, DAMAGE, LIABILITY OR ACTION IN RESPECT OF WHICH THE INDEMNITEE
INTENDS TO CLAIM SUCH INDEMNIFICATION, AND THE INDEMNITOR SHALL ASSUME THE
DEFENSE THEREOF, WITH COUNSEL REASONABLY SATISFACTORY TO THE INDEMNITEE, WHETHER
OR NOT SUCH CLAIM IS RIGHTFULLY BROUGHT; PROVIDED, HOWEVER, THAT AN INDEMNITEE
SHALL HAVE THE RIGHT TO RETAIN ITS OWN COUNSEL, WITH THE FEES AND EXPENSES TO BE
PAID BY THE INDEMNITOR IF INDEMNITOR DOES NOT ASSUME THE DEFENSE, OR IF
REPRESENTATION
34
OF SUCH INDEMNITEE BY THE COUNSEL RETAINED BY THE INDEMNITOR WOULD BE
INAPPROPRIATE DUE TO DIFFERING INTERESTS BETWEEN SUCH INDEMNITEE AND ANY OTHER
PERSON REPRESENTED BY SUCH COUNSEL IN SUCH PROCEEDINGS.
THE INDEMNITY AGREEMENT
IN THIS ARTICLE XII SHALL NOT APPLY TO AMOUNTS PAID IN SETTLEMENT OF ANY LOSS,
CLAIM, DAMAGE, LIABILITY OR ACTION IF SUCH SETTLEMENT IS EFFECTED WITHOUT THE
CONSENT OF THE INDEMNITOR, WHICH CONSENT SHALL NOT BE WITHHELD OR DELAYED
UNREASONABLY.
THE FAILURE TO DELIVER NOTICE TO THE INDEMNITOR WITHIN A
REASONABLE TIME AFTER THE COMMENCEMENT OF ANY SUCH ACTION, ONLY TO THE EXTENT
PREJUDICIAL TO ITS ABILITY TO DEFEND SUCH ACTION, SHALL RELIEVE SUCH INDEMNITOR
OF LIABILITY TO THE INDEMNITEE UNDER THIS ARTICLE XII, BUT THE OMISSION SO TO
DELIVER NOTICE TO THE INDEMNITOR WILL NOT RELIEVE IT OF ANY LIABILITY THAT IT
MAY HAVE TO ANY INDEMNITEE OTHERWISE THAN UNDER THIS ARTICLE XII.
THE
INDEMNITEE UNDER THIS ARTICLE XII, ITS EMPLOYEES AND AGENTS, SHALL COOPERATE
FULLY WITH THE INDEMNITOR AND ITS LEGAL REPRESENTATIVES IN THE INVESTIGATIONS OF
ANY ACTION, CLAIM OR LIABILITY COVERED BY THIS INDEMNIFICATION.
ANY ACTIONS
TAKEN OR PAYMENTS MADE BY AN INDEMNITOR HEREUNDER SHALL BE WITHOUT PREJUDICE TO
THE INDEMNITOR'S RIGHT TO CONTEST THE INDEMNITEE'S RIGHT TO INDEMNIFICATION AND
SUBJECT TO REFUND IF THE INDEMNITOR IS ULTIMATELY HELD NOT TO BE OBLIGATED TO
INDEMNIFY THE INDEMNITEE.
SECTION 12.04
LIMITATIONS.
(A)
LIMITED WARRANTY.
THE WARRANTIES HEREIN
ARE IN LIEU OF ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, AND EXCEPT AS SET
FORTH HEREIN, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE OR
ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICES.
(B)
LIMITATION OF LIABILITY.
NEITHER PARTY
SHALL HAVE ANY LIABILITY TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY SPECIAL,
CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT
OF OR RELATED TO THIS AGREEMENT HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY
(INCLUDING NEGLIGENCE), WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING IS NOT INTENDED TO LIMIT THE
INDEMNIFICATION OBLIGATIONS OF EITHER PARTY FOR SUCH DAMAGES CLAIMED BY A THIRD
PARTY OR TO LIMIT A PARTY'S LIABILITY FOR BREACH OF ITS OBLIGATIONS UNDER
ARTICLE X (CONFIDENTIALITY).
ARTICLE XIII
ADDITIONAL COVENANTS
SECTION 13.01
SALES FORECASTS.
COMMENCING ON THE DATE
OF THE INITIAL PRODUCT LAUNCH AND CONTINUING THROUGH THE