(II) IF AT THE TIME THAT A CLAIM FOR WHICH INDEMNIFICATION
MAY BE SOUGHT UNDER THIS SECTION 10.2, OR AT ANY TIME THEREAFTER PRIOR TO THE
FINAL RESOLUTION OF SUCH CLAIM, A BANKRUPTCY EVENT OF INCYTE HAS OCCURRED,
NOVARTIS SHALL HAVE THE RIGHT TO CONTROL THE DEFENSE, LITIGATION, SETTLEMENT,
APPEAL OR OTHER DISPOSITION OF THE CLAIM AT INCYTE'S EXPENSE.
10.3
Limitation of Liability.
EXCEPT WITH RESPECT TO
A BREACH OF ARTICLE XII OR A PARTY'S LIABILITY PURSUANT TO ARTICLE X, NEITHER
PARTY SHALL BE LIABLE FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER
INDIRECT OR REMOTE DAMAGES, OR, EXCEPT WITH RESPECT TO A BREACH OF ARTICLE II OR
SECTION 4.1(A) OR (B), FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES,
IN EACH CASE ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE EXERCISE OF ITS
RIGHTS HEREUNDER, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY
OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES OR LOSS.
10.4
Insurance.
Each Party shall use all commercially
reasonable efforts to maintain Third Party insurance and/or self-insurance, as
applicable, including product liability insurance, with respect to its
activities hereunder in amounts customary to such insurance and sufficient to
meet its obligations under this Agreement, and shall claim upon such insurance
policy according to such policy's relevant terms and conditions before relying
upon indemnification from the other Party.
67
ARTICLE XI
REPRESENTATIONS AND WARRANTIES AND COVENANTS
11.1
Representation Of Authority; Consents.
Incyte
and Novartis each represents and warrants to the other Party that:
(A)
AS OF THE EFFECTIVE DATE, IT
HAS FULL RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT;
(B)
AS OF THE EFFECTIVE DATE, THIS
AGREEMENT HAS BEEN DULY EXECUTED BY SUCH PARTY AND CONSTITUTES A LEGAL, VALID
AND BINDING OBLIGATION OF SUCH PARTY, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS,
EXCEPT AS ENFORCEABILITY MAY BE LIMITED BY BANKRUPTCY, FRAUDULENT CONVEYANCE,
INSOLVENCY, REORGANIZATION, MORATORIUM AND OTHER LAWS RELATING TO OR AFFECTING
CREDITORS' RIGHTS GENERALLY AND BY GENERAL EQUITABLE PRINCIPLES AND PUBLIC
POLICY CONSTRAINTS (INCLUDING THOSE PERTAINING TO LIMITATIONS AND/OR EXCLUSIONS
OF LIABILITY, COMPETITION LAWS, PENALTIES AND JURISDICTIONAL ISSUES INCLUDING
CONFLICTS OF LAWS); AND
(C)
AS OF THE EFFECTIVE DATE, ALL
NECESSARY CONSENTS, APPROVALS AND AUTHORIZATIONS OF ALL GOVERNMENT AUTHORITIES
AND OTHER PERSONS REQUIRED TO BE OBTAINED BY SUCH PARTY IN CONNECTION WITH THE
EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT HAVE BEEN AND SHALL BE
OBTAINED.
11.2
No Conflict.
Each Party represents and warrants
to the other Party that the execution and delivery of this Agreement and the
performance of such Party's obligations hereunder (a) do not conflict with or
violate such Party's corporate charter and bylaws or any requirement of
applicable Laws and (b) do not and shall not conflict with, violate or breach or
constitute a default or require any consent under, any oral or written
contractual obligation of such Party.
Each Party agrees that it shall not
during the term of this Agreement grant any right,
license, consent or