THAT TMC MAY CHANGE THE SPECIFICATIONS IN
ORDER TO CONFORM TO APPLICABLE REGULATORY REQUIREMENTS IN ONE OR MORE
JURISDICTIONS, PROVIDED THAT TMC INFORMS LONZA IMMEDIATELY OF SUCH REQUIREMENTS.
COSTS ARISING OUT OF SUCH CHANGES TO THE SPECIFICATIONS SHALL BE BORNE BY TMC.
ANY CHANGES TO THE SPECIFICATION FOR OTHER REASONS SHALL BE SUBJECT TO THE
MUTUAL AGREEMENT OF THE PARTIES.
11.3
LONZA'S WARRANTY OBLIGATIONS DO NOT EXTEND TO ANY PRODUCT
WHICH HAS BEEN MIS­USED, MISTREATED OR IMPROPERLY STORED. UPON LEARNING OF THE
BREACH OF ANY WARRANTY, TMC SHALL TAKE APPROPRIATE AND REASONABLE MEASURES TO
MINIMIZE DAM­AGES RESULTING THEREFROM.
11.4
ANY FURTHER WARRANTY OR LIABILITY OF LONZA, INCLUDING BUT
NOT LIMITED TO LIABILITY FOR CONSE­QUENTIAL AND INDIRECT DAMAGES, SUCH AS LOSS
OF PROFIT, LOSS OF PRODUCTION, CLAIMS BY THIRD PARTIES IS HEREBY EXPRESSLY
EXCLUDED.
11.5
EXCEPT TO THE EXTENT OF ANY CLAIM, INJURY OR DAMAGE ARISING
OUT OF A BREACH BY LONZA OF A REPRESENTATION, WARRANTY OR COVENANT UNDER THIS
AGREEMENT OR OUT OF THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF LONZA, TMC
AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS LONZA,
ITS OFFICERS, DIRECTORS,
EMPLOYEES AND AGENTS, FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, CAUSES OF
ACTION, LIABILITIES, PROCEEDINGS OR EXPENSES (INCLUDING REASONABLE ATTORNEYS
FEES, COURT COSTS AND SETTLEMENTS) WHICH MAY RESULT IN ANY WAY FROM THE USE OR
SALE OF THE PRODUCT AND PRODUCTS MADE THEREFROM. LONZA SHALL INFORM TMC IN
WRITING PROMPTLY OF ANY SUCH CLAIM OR LITIGATION AND SHALL COOPERATE WITH TMC IN
THE DEFENCE THEREOF.
11.6
Except to the extent that any claim, injury or damage is due
to the gross negligence or wilful misconduct of TMC, LONZA shall defend,
indemnify and hold harmless TMC, its officers, directors, employees and agents,
from against any and all claims, suits, causes of action,
12
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1934, AS AMENDED, AND RULE
24B-2 PROMULGATED THEREUNDER.
OMITTED INFORMATION HAS BEEN REPLACED WITH
ASTERISKS.
liabilities, proceedings or expenses
(including reasonable attorneys fees,
court costs and settlements) which may result in any way from: (i) any injury to
persons or to property during the progress of Work or performance of LONZA's
obligations under this Agreement; (ii)
any act or omission of LONZA, its
agents, employees, or subcontractors; and (iii) any breach by LONZA of any
representation, warranty or covenant under this Agreement.
11.7
LONZA shall maintain comprehensive general liability
(including contractual liability coverage insuring the liabilities assumed
above) and employer's liability insurance with limits as reasonably required by
TMC. At TMC's request, LONZA shall furnish to TMC a Certificate of Insurance
completed by its insurance officer certifying that insurance coverages are in
effect and will not be cancelled or materially changed until ten days after
prior written notice has been delivered to TMC.
CLAUSE 12
MODIFICATIONS TO PROCESS
As more fully set forth in the Work Schedule, during the Development Phase LONZA
shall develop