By EYETECH. EYETECH warrants to SHEARWATER that it will use its BEST EFFORTS to seek MARKETING AUTHORIZATION, and develop, commercialize and market the PRODUCT by [**]. If EYETECH believes that it cannot, within the exercise of reasonable business judgment, commercialize the PRODUCT in one or more countries in the TERRITORY by [**], then EYETECH may request from SHEARWATER an extension of time, and the parties shall negotiate in good faith to determine a time extension that is mutually acceptable. In the event that EYETECH does not use BEST EFFORTS in this regard, the licenses granted to EYETECH in Section 3.1 [**]. In the event that the licenses granted to EYETECH in Section 3.1 [**] of the TERRITORY as provided for herein above, EYETECH'S obligations to pay milestones and royalties to SHEARWATER, as provided for in this AGREEMENT, shall continue. Notwithstanding the foregoing, in the event EYETECH does not use at least reasonable efforts to develop, seek MARKETING AUTHORIZATION, commercialize and market the PRODUCT in [**] in the TERRITORY by [**] or such later date as mutually agreed to by the parties, it shall be deemed a material breach of this AGREEMENT by EYETECH and SHEARWATER may terminate this AGREEMENT under Section 11.4.
By EYETECH. EYETECH shall defend, indemnify and hold SHEARWATER, SHEARWATER'S AFFILIATES, and SHEARWATER'S officers, employees and agents harmless from and against all losses, liabilities, damages and expenses (including reasonable attorney's fees and costs) resulting from all claims, demands, actions and other proceedings by any THIRD PARTY to the extent arising from (a) the breach of any representation, warranty or covenant of EYETECH under this AGREEMENT, (b) the research, development, manufacturing, commercialization or marketing of the PRODUCT (without regard to culpable conduct), or (c) the negligence, recklessness or willful misconduct of EYETECH or its AFFILIATES or SUBLICENSEES in the performance of its or their obligations and its or their permitted activities under this AGREEMENT.
By EYETECH. Eyetech shall indemnify, defend and hold harmless Raylo, its Affiliates and their subcontractors, and their respective directors, officers, employees and agents, from and against any and all liabilities, damages, losses, costs or expenses whatsoever (including reasonable legal fees and disbursements) arising out of or resulting from claims, demands, or actions by third parties to the extent such liabilities, damages, losses, costs or expenses arise from:
