Common use of By Subsidiary Clause in Contracts

By Subsidiary. Subsidiary will defend, indemnify and hold Masimo harmless against any and all liability, loss, damages, costs or expenses which Masimo may hereafter incur, as a result of any injury, illness or death of any person which is caused by any Masimo Product, or as a result of infringement or claims of infringement related to the Masimo Products of any patent, copyright, trademark, trade secret, or any other proprietary right of any third party, to the extent that such injury, illness or death or infringement results from (i) any combination of the Masimo Product with items not furnished by Masimo (except where such combination is approved by Masimo (e.g. use of Masimo circuit boards in OEM product), (ii) any inadequacy of the labeling or use-manuals for such Masimo Product (unless such inadequacy consists of inaccurate information supplied by Masimo), or (iii) any modifications to the Masimo Products made by Subsidiary, by others, or by Masimo at Subsidiary’s request. Subsidiary shall have no liability or responsibility of any kind to Masimo under this Section unless Masimo (a) promptly notifies Subsidiary of such claims, (b) gives Subsidiary an adequate opportunity to defend, including complete control of such defense and (c) provides reasonable assistance to Subsidiary, at Subsidiary’s expense, in connection with the defense and settlement of such claim. Subsidiary shall have no liability for settlements made without its express written consent. Should Masimo desire to have its own counsel participate in any such action, the cost of such counsel shall be exclusively Masimo’s.