8. Intellectual Property.
a) Except as otherwise provided herein, nothing in this Agreement is intended to grant to either Party any rights under any Intellectual Property right of the other Party with respect to Background IP.
9. Representations and Warranties Service Provider represents and warrants to Pivot that: (a) Service Provider has full power and authority to enter into and perform this Agreement; (b) neither Service Provider’s entering nor performing this Agreement will violate any right of or breach any obligation to any third party under any agreement between Service Provider and such third party; (c) the Services will be performed in a professional and workmanlike manner; (d) the Services and/or Deliverables shall not infringe the intellectual property rights of any third party; and (e) Service Provider has the right and unrestricted ability to assign the Deliverables to Pivot including, without limitation, the right to assign any Deliverables performed by any Authorized Representative.
10.1. Service Provider agrees to indemnify, defend and hold harmless Pivot, and its directors, officers and employees (collectively, “Pivot Indemnitees”) for any liability, demand, damage, cost or expense (including reasonable attorney’s fees) arising from any third-party claim, action or proceeding (“Claim”) to the extent shown by a court of competent jurisdiction to have arisen from: (a) the performance of the Services by Service Provider hereunder, (b) injuries to persons or damages which occur on Service Provider’s premises or premises under the exclusive control of Service Provider, (c) breach by Service Provider of this Agreement or its representations and warranties, or (d) the negligence or intentional misconduct of Service Provider or any of its employees, agents or representatives, except in each case, to the extent caused by the negligence or intentional misconduct of Pivot.
10.2. Except to the extent attributable to causes or events for which Service Provider is obligated to indemnify, defend and hold harmless under Section 10.1, Pivot agrees to indemnify, defend and hold harmless Service Provider, and its directors, officers, and employees (collectively, “Service Provider Indemnitees”) against any Claim to the extent shown by a court of competent jurisdiction to have arisen from: (a) Pivot’s breach of this Agreement or its representations and warranties, (b) the negligence or intentional misconduct of Pivot or any of its directors, officers, employees, agents or representatives, (c) infringement of any third party rights by Service Provider based on its use of Pivot’s Materials in accordance with the terms of this Agreement or the Statement of Work, except in each case, to the extent caused by the negligence or intentional misconduct of Service Provider.
10.3. Procedures. The indemnification obligations under this Section 10 are conditioned on the following: (a) the indemnified party must promptly notify the indemnifying party in writing of any Claim, provided, however, that the failure to so notify shall not relieve the indemnifying party of its indemnification obligations except to the extent it can show that it was materially prejudiced by such delay and then only to the extent of such prejudice), (b) the indemnifying party shall have sole control of the defense and/or settlement of the Claim; provided that the indemnified party shall have the right to participate with counsel of its own choosing in the defense and/or settlement of the Claim at its own expense, and, provided further, that the indemnifying party shall not settle a Claim in a manner that contains a stipulation to or admission or acknowledgement of liability or wrongdoing without the indemnified party’s prior written consent, and (c) only Service Provider may claim indemnity under this Section 10 on its own behalf or on behalf of a Service Provider Indemnitee and only Pivot may claim indemnity under this Section 10 on its own behalf or on behalf of a Pivot Indemnitee.
10.4. Insurance. During the Term, Service Provider agrees to carry insurance sufficient to cover its indemnification obligations hereunder with at least the following minimum requirements: (a) Commercial General Liability (including bodily injury and property damage liability, independent contractors liability, contractual liability, in an amount not less than $1,000,000 combined single limit, per occurrence, and $2,000,000 aggregate), (b) Workers’ Compensation (statutory limits required), and (c) Employers Liability Coverage ($500,000). Service Provider shall furnish proof of such insurance, including certificates, to Pivot at its request.
11.1. Independent Contractor Relationship. The Parties are independent contractors. Nothing contained herein shall be construed to place the Parties in the relationship of partners, principal and agent, employer/employee or joint venturer. Neither Party shall have power or right to bind or obligate the other, nor shall either hold itself out as having such authority.
11.2. Use of Name. Service Provider may not reference Pivot or use its trade names, trademarks or other proprietary designations in any advertising, publicity, or other promotional activities without Pivot’s express written consent.
11.3. Force Majeure. In the event either Party is delayed or hindered in or prevented from the performance of any act required hereunder by reasons of strike, lockouts, labor troubles, restrictive government or judicial orders, or decrees riots, insurrection, war, Acts of God, inclement weather or other similar reason or cause beyond such Party’s control, then performance of such act shall be excused for the period of such delay. Notice of the start and stop of any such force majeure shall be provided to the other Party. In the event that a Party’s performance is delayed due to force majeure for a period of more than ninety (90) days, the other Party may terminate this Agreement upon written notice to the affected Party.
11.4. Notices. Any notice shall be in writing and be deemed given on the date received if delivered personally or by email or, if sent by registered or certified U.S. mail, five (5) days after the date postmarked, return receipt requested, postage prepaid to the following address:
If to Service Provider:
To the address provided in the Statement of Work.
If to Pivot:
Attention: Legal Department
Pivot Bio, Inc.
2910 7th Street Berkeley, CA 94710
11.5. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the state of Delaware.
11.6. Mediation. The Parties agree to mediate any disputes arising out of or relating to this Agreement before commencing any action. No Party to this Agreement can proceed in court against the other Party without first participating in mediation, unless a Party refuses to submit to mediation and legal action is brought to specifically enforce this mandatory mediation provision of this Agreement. If the Parties cannot agree upon the person to act as the mediator within twenty (20) business days from notice of a request for mediation, then the American Arbitration Association will select a person to act as the mediator. The mediator’s charges and expenses will be split by the parties on a 50/50 basis. Each Party will be responsible for its own attorneys’ fees and costs at mediation. Any such mediation must be completed within sixty (60) days following appointment of the mediator. Should the dispute not be resolved by mediation, either party may request relief by a court of competent jurisdiction located in the county in the state where the Services are provided hereunder and the Parties waive any claim of forum non conveniens with regard to venue.
11.7. Severability. The invalidity or unenforceability of any paragraph or provision of this Agreement shall not affect the validity or enforceability of any one or more of the other paragraphs or provisions.
11.8. Waiver. Waiver or forbearance by either Party or the failure by either Party to claim a breach of any provision of this Agreement or exercise any right or remedy provided by this Agreement or Applicable Law, shall not be deemed to constitute a waiver with respect to any subsequent breach of any provision hereof.
11.9. Changes and Modification. No changes or modifications of this Agreement or any Statement of Work shall be deemed effective unless in writing and signed by the Parties.
11.10. Assignment. This Agreement may not be assigned by Service Provider without the prior written consent of Pivot. Pivot may assign this Agreement to a third-party entity provided that such entity agrees in writing to be bound by the terms and conditions of this Agreement. Any attempted assignment in violation of this Section 11.10 will be null and void.
11.11. Entire Agreement. This Agreement represents the complete and entire understanding between the Parties regarding the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral, regarding this subject matter.