Common use of DIVERSA Clause in Contracts

DIVERSA. Diversa agrees to indemnify, defend and hold harmless Syngenta and its Affiliates and Sublicensees and their respective employees, agents, officers, directors and permitted assigns (each a “Syngenta Indemnitee”) from and against any Claims against or incurred by any Syngenta Indemnitee arising out of or resulting from (i) the negligence or willful misconduct of Diversa in the Research Program; (ii) a breach of any of the representations or warranties by Diversa hereunder; (iii) a material breach by Diversa of its obligations under this Agreement; (iv) to the extent not covered by Section 11.1 above, the use of Diversa Materials and any other intellectual property or Materials which Diversa provides for or uses in the conduct of the Research Program; and (v) the development or manufacture, use, promotion, marketing, sale or other distribution by Diversa or its Affiliates or its Sublicensees of any Diversa Product or any other product sold or licensed, or developed for sale or license, by Diversa or its Affiliates or Sublicensees which incorporates or is made through use of Program Technology, except, in each case, to the extent that such Claim arises out of or results from a matter as to which Diversa is entitled to be indemnified by Syngenta pursuant to Section 11.1 hereof; provided, however, that notwithstanding the foregoing, Diversa shall have no liability to any Syngenta Indemnitee for its consequential or special damages or lost profits and with respect to Third Party claims shall only be obligated to indemnify Syngenta Indemnitees against actual damages, if any, awarded to a Third Party or actual settlement amounts, as applicable.