Indemnification by HET Clause Samples
Indemnification by HET. HET shall indemnify MJC against, and HET will defend at its own expense, any action against MJC brought by a third party to the extent that the action is based upon a claim (a) of bodily injury (including death) or damage to personal property to the extent directly caused by negligence in the design or manufacture of the Products or (b) that a Product infringes any patents, copyrights or misappropriates any trade secrets of a third party or that the HET Marks, when used by MJC in accordance with this Agreement, infringe any trademark rights of a third party. HET will pay those costs and damages finally awarded against MJC in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action providing that MJC notifies HET promptly in writing of such action, MJC gives HET sole control of the defense thereof and any related settlement negotiations, and MJC provides full cooperation and, at HET's reasonable request and expense, assisting in such defense. Notwithstanding the foregoing, HET will have no obligation under this Section or otherwise with respect to any infringement claim based upon (i) any use, reproduction, or distribution of the Products by MJC or any of its Affiliates or End Users (except where MJC has taken commercially reasonable steps to prevent End Users from so doing) in a manner that is inconsistent with the written HET instructions for use accompanying the Product (ii) any use of the Products by MJC or any of its Affiliates or End Users (except where MJC has taken commercially reasonable steps to prevent End Users from so doing) in combination with other products, equipment, software, or data that is not either supplied by HET or intended by HET to be used with the Products, or (iii) any modification of Products by MJC or any of its Affiliates or End Users (except where MJC has taken commercially reasonable steps to prevent End Users from so doing).
Indemnification by HET. HET hereby agrees that it shall be responsible for, indemnify, hold harmless and defend HPEC, HPEC's Affiliates and their respective directors, officers, managing members, shareholders, partners, attorneys, accountants, agents, employees and consultants and their heirs, successors and assigns (collectively, the "HPEC Indemnitees") from and against any and all Losses suffered or incurred by any HPEC Indemnitee arising out of, relating to, resulting from or in connection with (a) any actual or alleged injury or death of any Person or damage to any property caused or claimed to be caused by any Fuel Cell System and related to HET Background Technology or the Work performed hereunder, (b) any claim that the manufacture, sale or use of any Fuel Cell System by such party infringes or violates the patent or other rights of any other Person by reason of the use of HET Background Technology, (c) the breach of any representation or warranty made by HET herein, (d) the default by HET in the performance or observance of any of its obligations to be performed or observed hereunder, and (e) any action, suit or other proceeding, or compromise, settlement or judgment, relating to any of the foregoing matters with respect to which HPEC Indemnitees are entitled to indemnification hereunder. The foregoing shall not apply to the extent that such Losses are due to the wilful misconduct or negligence of any HPEC Indemnities, as finally determined by a court of competent jurisdiction. Notwithstanding the foregoing, the aggregate amount that HET shall be recoverable from HET pursuant to this paragraph 8.2.2 shall be equal to the greater of (i) $50,000 and (ii) 50% of the aggregate royalties paid to HET pursuant to Section 5 hereof or, in the event of any Loss attributable to the infringement or violation of the patent or other rights of any other Person where HET was aware that such infringement was occurring and failed to disclose same to HPEC forthwith, 100% of the aggregate royalties paid to HET pursuant to Section 5 hereof. In addition, HET shall not be responsible for any Loss suffered as a result of any infringement or violation of the patent or other rights of any other Person unless such infringement occurs in Canada, the United States, or any other territory in which HET has caused to be registered or filed, in accordance with applicable law, HET Background Technology and Arising Technology. Notwithstanding the foregoing, immediately upon either party becoming aware that...