Obligation of one party to pay the expenses and damages incurred by the other party

Obligation of one party to pay the expenses and damages incurred by the other party.

Clause:

7.1 Indemnification.

7.1.1 ACCESS shall defend, indemnify and hold harmless WYETH, its Affiliates, directors, officers, employees and agents from and against all damages, losses, liabilities, expenses, claims, demands, suits, penalties or judgments or administrative or judicial orders (including, without limitation, reasonable attorneys' fees and expenses) incurred, assessed or sustained by or against WYETH, its Affiliates, directors, officers, employees or agents with respect to a claim by a Third Party arising out of (a) the negligent acts or omissions of ACCESS; (b) any breach by ACCESS of this Agreement or its representations, warranties or covenants hereunder; (c) any Recall or Seizure attributable to ACCESS's performance (including, without limitation, amounts WYETH pays or credits to its customers for Product so Recalled or Seized); (d) product liability, tort, nuisance or other claim arising out of the defective manufacture, storage or supply of the Product by ACCESS; (e) any allegation that the manufacture, importation, sale, offer for sale or use of the Product infringes any patent or other intellectual property, proprietary or protected right within the Territory; provided that ACCESS will not be obligated to indemnify WYETH if and to the extent that the alleged infringement is caused by: (i) WYETH's (including, without limitation, its Affiliates, agents, contractors, and sub-distributors) or its customers misuse or modification of the Product; or (ii) WYETH's (including, without limitation, its Affiliates, agents, contractors, and sub- distributors) or its customers use of the Product in combination with any products or materials not provided by ACCESS; and further provided that if the Product is held to constitute an infringement or misappropriation of any Third Party's intellectual property rights or if in ACCESS's opinion, the Product is, or is likely to be held to constitute, an infringement or misappropriation, ACCESS may at its expense and option: (x) procure the right for WYETH to continue distributing the Product; (y) upon prior approval by WYETH, which approval will not be unreasonably withheld or delayed, promptly replace the Product with a non-infringing and non- misappropriating equivalent product conforming to the applicable Product Specifications and Regulatory Approvals; provided that there shall not be any material delay in any such replacement; or (z) upon prior approval by WYETH, which approval will not be unreasonably withheld or delayed, modify the Product to make it non-infringing and non-misappropriating while conforming to the applicable Product Specifications and Regulatory Approvals; provided that there shall not be any material delay in any such modification; (f) any enforcement or other action by any Regulatory Authority relating to the Manufacture, the pricing of the Product by ACCESS to WYETH or sale of the Product by ACCESS to WYETH; or (f) ACCESS's failure to comply with any applicable law, regulation or order (including, without limitation, environmental laws, regulations and orders). The foregoing indemnification obligation shall not apply in the event and to the extent that such claim arose as a result of any indemnitee's negligence, intentional misconduct or breach of this Agreement. The provisions of this Section shall survive the termination or expiration of this Agreement.

7.1.2 WYETH shall defend, indemnify and hold harmless ACCESS, its directors, officers, employees and agents from and against all damages, losses, liabilities, expenses, claims, demands, suits, penalties or judgments or administrative or judicial orders (including, without limitation, reasonable attorneys' fees and expenses) incurred, assessed or sustained by or against ACCESS, its directors, officers, employees or agents with respect to a claim by a Third Party arising out of (a) the negligent acts or omissions of WYETH; (b) any breach by WYETH of this Agreement or of its representations, warranties or covenants hereunder; (c) any allegation that the Trademarks or WYETH's packaging or WYETH's (or any Affiliate of WYETH's) marketing materials infringes any patent or other proprietary or protected right of any Third Party; (d) any Recall or Seizure attributable to WYETH's performance; (e) any enforcement or other action by any Regulatory Authority relating to the distribution, the pricing of the Product by WYETH or sale of the Product by WYETH to Third Parties; (f) WYETH's failure to comply with any applicable law, regulation or order (including, without limitation, environmental laws, regulations and orders), or (g) the marketing and distributing of the Product by WYETH, its Affiliates or sub-distributors. The foregoing indemnification obligation shall not apply in the event and to the extent that such claim arose as a result of any indemnitee's negligence, intentional misconduct or breach of this Agreement. The provisions of this Section shall survive the termination or expiration of this Agreement.

7.1.3 To receive the benefit of indemnification under this Section 7.1, the Party and its Affiliates, directors, officers, employees or agents seeking indemnification (an "Indemnified Party") shall promptly notify the other Party (the "Indemnifying Party"), in writing, of any claim asserted or threatened against such Indemnified Party for which such Indemnified Party is entitled to indemnification hereunder from the Indemnifying Party. With respect to any such claim the Indemnified Party shall, at no out-of-pocket expense to it, reasonably cooperate with and provide such reasonable assistance to such Indemnifying Party as such Indemnifying Party may reasonably request. Such reasonable assistance may include, without limitation, providing copies of all relevant correspondence and other materials that the Indemnifying Party may reasonably request. The obligations of an Indemnifying Party under Sections 7.1.1 and 7.1.2 are conditioned upon the delivery of written notice to the Indemnifying Party of any asserted or threatened claim promptly after the Indemnified Party becomes aware of such claim; provided that the failure of the Indemnified Party to give such notice or any delay thereof shall not affect the Indemnified Party's right to indemnification hereunder, except to the extent that such failure or delay impairs the Indemnifying Party's ability to defend or contest any such claim. The Indemnifying Party shall have the right to assume the defense of any suit or claim for which indemnification is sought with counsel reasonably acceptable to the Indemnified Party. If the Indemnifying Party defends the suit or claim, the Indemnified Party may participate in the defense thereof at its sole cost and expense. An Indemnifying Party may not settle a suit or claim without the consent of the Indemnified Party if (a) such settlement would impose any monetary obligation on the Indemnified Party for which indemnification is not provided hereunder, (b) or require the Indemnified Party to submit to an injunction or otherwise limit the Indemnified Party's rights under this Agreement, or (c) does not include a release of the Indemnified Party from all liability arising out of such suit or claim. Any payment made by an Indemnifying Party to settle any such suit or claim shall be at its own cost and expense.

7.1.4 The indemnification provided by this Section 7 shall be the Parties' sole and exclusive remedy in connection with any third party claim.

-- License and Supply agreement between Access and Wyeth, January 2004

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