Common use of Indemnity by Supplier Clause in Contracts

Indemnity by Supplier. Subject to the limitation set forth --------------------- in Section 9.9, with respect to Rejected Quantities not distributed to third parties and the provisions of Section 21.5 below, Supplier shall indemnify, defend and hold GWI and each GWI Affiliate who receives a Product subject to indemnity hereunder and their respective directors, officers, employees and agents (each a "GWI Indemnitee") harmless from and against all Losses arising from, based upon or caused by the failure of any Products to conform to the Specifications prior to placement with the carrier, or Supplier's (a) negligence or willful misconduct, including any such negligence or willful misconduct which results in an event described in Section 9.6 (in which case the Losses of GWI to be indemnified by Supplier, subject to Section 9.7(d), may also include the price paid by GWI to Supplier for such an affected Product and all costs incurred by GWI in connection therewith, including any implementation, storage and destruction costs), (b) failure to obtain, maintain or comply in any respect with any of its Consents which are required to perform any of its obligations hereunder or under other Legal Requirements, the Environmental Laws or the FD&C Act, (c) material breach of any of Supplier's covenants, obligations, representations or warranties under this Agreement or(d) destruction of any Product by Supplier in accordance with the terms of this Agreement. The foregoing indemnification obligations shall not apply in each case to the extent any particular Loss is a direct result of (i) the negligence or intentional misconduct of a GWI Indemnitee; (ii) a breach by GWI of a representation or covenant hereunder or under the Purchase Agreement; (iii) any failure by GWI to comply with the FD&C Act or the provisions of Section 10.1 of this Agreement; or (iv) Supplier's compliance with the Specifications or an order of a Governmental Body directed to Supplier specifically regarding its compliance with CGMPs, the FD&C Act, Environmental Laws or Legal Requirements or (v) the sale, use or administration of any Product to the extent that after shipment by Supplier and through no fault or breach by Supplier hereunder, such Products (a) have been altered or adulterated, (b) have not been maintained in accordance with CGMP, applicable transportation, storage, handling or maintenance requirements, (c) have been damaged by negligence or accident or (d) have been damaged by acts of nature, vandalism, burglary, neglect or misuse other than by Supplier or its representatives. Nothing in this Section 21.1 or Section 21.3 below shall be construed to limit, and these provisions shall be in addition to, any indemnification provision in the Purchase Agreement and any other agreement between the parties. To the extent any breach of a representation and warranty hereunder constitutes a breach of a representation and warranty under the Purchase Agreement, then the indemnified party's exclusive 124 remedy with respect to such breach shall be to seek indemnification pursuant to the provisions of the Purchase Agreement.

Indemnity by Supplier. Subject to the limitation set forth --------------------- in Section 9.9, with respect to Rejected Quantities not distributed to third parties and the provisions of Section 21.5 below, (a) Supplier shall indemnifydefend, defend indemnify and hold GWI and each GWI Affiliate who receives a Product subject to indemnity hereunder and their respective directors, officers, employees and agents (each a "GWI Indemnitee") harmless Applied from and against any and all Losses arising fromclaims, based upon demands, suits, actions, losses, penalties, damages (whether actual, punitive, consequential or caused by the failure of any Products to conform to the Specifications prior to placement with the carrierotherwise), or Supplier's (a) negligence or willful misconductauthorized settlements, and all other liabilities and associated costs and expenses, including any such negligence or willful misconduct which results in an event described in Section 9.6 attorney’s fees, expert’s fees, costs of investigation and other costs of litigation (in which case all of the Losses of GWI to be indemnified by Supplier, subject to Section 9.7(dforegoing being collectively called “Indemnified Liabilities”), may also include the price paid by GWI arising out of or relating to Supplier for such an affected Product and all costs incurred by GWI in connection therewith, including any implementation, storage and destruction costs), (bi) failure to obtain, maintain or comply in any respect with any of its Consents which are required to perform any of its obligations hereunder or under other Legal Requirements, the Environmental Laws or the FD&C Act, (c) material Supplier’s breach of any provision of Supplier's covenants, obligations, representations or warranties under this Agreement or(d) destruction of any Product by Supplier in accordance with the terms of this Agreement. The foregoing indemnification obligations shall not apply in each case to the extent any particular Loss is a direct result of (i) the negligence or intentional misconduct of a GWI Indemnitee; (ii) a breach any negligent, grossly negligent or intentional acts, errors or omissions by GWI of a representation Supplier, its employees, officers, agents or covenant hereunder representatives; or under the Purchase Agreement; (iii) any failure by GWI strict liability or products liability with respect to comply or in connection with the FD&C Act or the provisions of Section 10.1 of this AgreementItems; or (iv) Supplier's compliance with the Specifications or an order of any claim by a Governmental Body directed to Sub-tier Supplier specifically regarding its compliance with CGMPs, the FD&C Act, Environmental Laws or Legal Requirements against Applied; or (v) the saleactual or alleged infringement or misappropriation of patent, use copyright, trademark, trade secret rights, confidential information, proprietary rights, or administration other rights of any Product a third party, except to the extent that after shipment the infringement or misappropriation was unavoidably caused by Supplier’s compliance with a detailed design furnished and required by Applied. THE INDEMNITY BY SUPPLIER IN FAVOR OF APPLIED SHALL EXTEND TO APPLIED, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES AND SHALL INCLUDE, AND IS INTENDED TO INCLUDE, INDEMNIFIED LIABILITIES WHICH ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE THE RESULT OF ACTS OR OMISSIONS OF SUPPLIER AS A JOINT TORTFEASOR. IF SUPPLIER IS LIABLE ONLY AS A JOINT TORTFEASOR, THEN SUPPLIER’S LIABILITY SHALL NOT EXTEND TO THAT PORTION OF LIABILITY DETERMINED BY THE COURT TO BE THE RESULT OF ACTS OR OMISSIONS OF APPLIED. The indemnity of Supplier as to Indemnified Liabilities under clauses (ii) (iii) and through (iv) above, shall not extend to liabilities and damages that are caused by the sole negligence of Applied, and as to Indemnified Liabilities under clause (v), shall not extend to liabilities and damages that are caused as described in the “except to the extent” term of such clause (v). In addition to Supplier’s obligations as to Indemnified Liabilities that arise under clause (v), Supplier shall, at Applied’s option (1) procure for Applied and its customers the right to continue to use, sell and resale any affected Item, (2) with respect to a claim for infringement, modify the affected Item so that it is no fault longer infringing, or breach by Supplier hereunder(3) replace any affected Item with a non-infringing good or Service comparable to the affected Item. If none of these alternatives are possible, such Products (a) Applied shall have been altered the right to return or adulterateddestroy, at Applied’s option, any affected Items for a full refund of the purchase price, plus applicable transportation costs. (b) have not been maintained in accordance In the event of any such Indemnified Liabilities, Applied shall (i) promptly notify Supplier; (ii) at Supplier’s expense, reasonably cooperate with CGMP, applicable transportation, storage, handling or maintenance requirements, (c) have been damaged by negligence or accident or (d) have been damaged by acts of nature, vandalism, burglary, neglect or misuse other than by Supplier or its representatives. Nothing in this Section 21.1 or Section 21.3 below shall be construed to limit, and these provisions shall be in addition to, any indemnification provision in the Purchase Agreement defense of such claim; and (iii) not settle any other agreement between the partiessuch Indemnified Liabilities without Supplier’s written consent, which shall not be unreasonably withheld or delayed. To the extent any breach of a representation and warranty hereunder constitutes a breach of a representation and warranty under the Purchase Agreement, then the indemnified party's exclusive 124 remedy with respect to such breach Supplier shall be to seek indemnification pursuant keep Applied informed at all times as to the provisions status of Supplier’s efforts and consult with Applied and/or its counsel regarding such efforts. Supplier shall not settle any such claim without the Purchase Agreementprior written consent of Applied, which shall not be unreasonably withheld or delayed.

Indemnity by Supplier. Subject to the limitation set forth --------------------- in Section 9.9, with respect to Rejected Quantities not distributed to third parties and the provisions of Section 21.5 below, Supplier shall indemnifyindemnify PacifiCare Entities from, and defend and hold GWI and each GWI Affiliate who receives a Product subject to indemnity hereunder and their respective directors, officers, employees and agents (each a "GWI Indemnitee") PacifiCare Entities harmless from and against all against, any Losses arising suffered, incurred or sustained by PacifiCare Entities or to which PacifiCare Entities become subject resulting from, based upon arising out of or caused by the failure of relating to any Products to conform to the Specifications prior to placement with the carrier, or Supplier's claim: (a) negligence that the Developed Software, Work Product, Supplier Tools, Supplier Software, any enhancements or willful misconductmodifications to the PacifiCare Software performed by Supplier or Supplier Agents or any other resources or items provided to PacifiCare Entities by Supplier or Supplier Agents infringe upon the proprietary or other rights of any third party (except as may have been caused by a modification by PacifiCare Entities or PacifiCare Entity Agents, including any such negligence or willful misconduct which results in an event described in Section 9.6 (in which case the Losses of GWI to be indemnified by Supplier, subject to Section 9.7(d), may also include the price paid by GWI written directions or specifications provided to Supplier for such an affected Product and all costs incurred by GWI in connection therewith, including any implementation, storage and destruction costsPacifiCare or PacifiCare Entities), ; (b) relating to any duties or obligations of Supplier or Supplier Agents in respect of a third party or any subcontractor of Supplier; (c) by a third party arising from services or systems provided by Supplier or Supplier Agents from a Supplier Service Location that is shared with other customers of Supplier; (d) relating to the inaccuracy, untruthfulness or breach of any representation, warranty or covenant set forth in Section 21.2 made by Supplier under this Agreement; (e) relating to Supplier's failure to obtain, maintain or maintain, and comply in any respect with any of its Consents which are required to perform any of its obligations hereunder or under other Legal Requirements, the Environmental Laws or the FD&C Act, (c) material breach of any of Supplier's covenants, obligations, representations or warranties under this Agreement or(d) destruction of any Product by Supplier in accordance with the terms of this Agreement. The foregoing indemnification obligations shall not apply in each case Supplier Governmental Approvals; (f) relating to the extent any particular Loss is a direct result of (i) a violation by Supplier or Supplier Agents of Law for the negligence protection of persons or intentional misconduct members of a GWI Indemnitee; protected class or category of persons, including unlawful discrimination, (ii) a breach work-related injury (except as may be covered by GWI of a representation Supplier's workers' compensation plan) or covenant hereunder death caused by Supplier or under the Purchase Agreement; Supplier Agents, (iii) any failure accrued employee benefits not expressly retained by GWI to comply with the FD&C Act or the provisions of Section 10.1 of this Agreement; or PacifiCare Entities, (iv) Supplier's compliance with any representations, oral or written, made by Supplier or Supplier Agents to PacifiCare Entities' employees, including the Specifications or an order of a Governmental Body directed to Supplier specifically regarding its compliance with CGMPs, the FD&C Act, Environmental Laws or Legal Requirements or Affected Employees and (v) any other aspect of the sale, use or administration of any Product to the extent that after shipment by Supplier and through no fault or breach by Supplier hereunder, such Products (a) have been altered or adulterated, (b) have not been maintained in accordance Transitioned Personnels' employment relationship with CGMP, applicable transportation, storage, handling or maintenance requirements, (c) have been damaged by negligence or accident or (d) have been damaged by acts of nature, vandalism, burglary, neglect or misuse other than by Supplier or its representatives. Nothing in this Section 21.1 or Section 21.3 below shall be construed to limit, and these provisions shall be in addition to, any indemnification provision in the Purchase Agreement and any other agreement between termination of the parties. To the extent any employment relationship with Supplier (including claims for breach of a representation and warranty hereunder constitutes a an express or implied contract of employment); (g) relating to Supplier's breach of a representation and warranty under the Purchase AgreementSection 10.2, then the indemnified party's exclusive 124 remedy with respect to such breach shall be to seek indemnification pursuant to the provisions of the Purchase Agreement.10.3, 10.4 or 15.4;

Indemnity by Supplier. Subject to the limitation set forth --------------------- in Section 9.9, with respect to Rejected Quantities not distributed to third parties and the provisions of Section 21.5 below, Supplier shall indemnifyindemnify Chordiant from, and defend and hold GWI and each GWI Affiliate who receives a Product subject to indemnity hereunder and their respective directors, officers, employees and agents (each a "GWI Indemnitee") Chordiant harmless from and against all against, any Losses arising suffered, incurred or sustained by Chordiant or to which Chordiant becomes subject, resulting from, based upon arising out of or caused by the failure of relating to any Products to conform to the Specifications prior to placement with the carrier, or Supplier's claim: (a) negligence or willful misconductthat the Services, including any such negligence or willful misconduct which results in an event described in Section 9.6 (in which case the Losses of GWI to be indemnified by SupplierSupplier Software, subject to Section 9.7(d)Supplier Tools, may also include the price paid by GWI to Supplier for such an affected Equipment, Work Product and all costs incurred any other resources or items used by GWI Supplier or furnished to Chordiant by Supplier or Supplier Agents in connection therewith, including providing the Services infringe upon the proprietary or other rights of any implementation, storage and destruction costs), third party; (b) the Supplier’s or Supplier’s Agents’ interview, hiring and/or personnel transfer processes or claims arising out of the employer-employee relationship (including termination) between the Supplier or a Supplier Agent and any Transitioned Personnel after his or her start date; (c) relating to the Services or this Agreement brought by a Supplier Agent or personnel thereof; (d) Supplier is required to insure against under this Agreement; (e) by a third party that does not arise out of or relate to a relationship with Chordiant but arises from or relates to the actions of the Supplier or a Supplier Agent; (f) by a third party arising from Services or Systems provided by Supplier or Supplier Agents from a Service Location that is shared with other customers of Supplier; (g) relating to the inaccuracy, untruthfulness or breach of any representation or warranty made by Supplier in Section 21.2; [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. (h) relating to Supplier’s or Supplier Agents’ failure to obtain, maintain or comply in any respect with any the Consents and Supplier Governmental Approvals; (i) relating to (i) a violation of its Consents which are required to perform any Law for the protection of its obligations hereunder persons or under other Legal Requirementsmembers of a protected class or category of persons by Supplier or Supplier Agents, the Environmental Laws or the FD&C Actincluding unlawful discrimination, (cii) material work-related injury, except as may be covered by Supplier’s workers’ compensation plan, or death caused by Supplier or Supplier Agents, (iii) accrued employee benefits not expressly retained by Chordiant, (iv) any representations, oral or written, made by Supplier or Supplier Agents to Chordiant employees or contractors, including the Affected Employees and Affected Contractors and (v) any other aspect of the Affected Employees’ or Affected Contractors’ employment or other relationship with Supplier or termination thereof by Supplier (including claims for breach of an express or implied contract of employment); (j) relating to Supplier’s breach of Section 10.3, 10.4, or 10.5; (k) relating to any amounts, including taxes, interest and penalties, assessed against Chordiant that are the obligation of Supplier pursuant to Article 18; (l) relating to personal injury (including death) or property loss or damage resulting from Supplier’s or Supplier Agents’ acts or omissions; (m) relating to a breach of Supplier’s obligations with respect to Chordiant Data (including Article 14); (n) relating to a breach of Article 20; and (o) relating to a breach of any of Supplier's covenants, obligations, representations or warranties under this Agreement or(d) destruction of the covenants in Section 22.2. Supplier shall indemnify Chordiant from any Product by Supplier costs and expenses incurred in accordance connection with the terms enforcement of this Agreement. The foregoing indemnification obligations shall not apply in each case to the extent any particular Loss is a direct result of (i) the negligence or intentional misconduct of a GWI Indemnitee; (ii) a breach by GWI of a representation or covenant hereunder or under the Purchase Agreement; (iii) any failure by GWI to comply with the FD&C Act or the provisions of Section 10.1 of this Agreement; or (iv) Supplier's compliance with the Specifications or an order of a Governmental Body directed to Supplier specifically regarding its compliance with CGMPs, the FD&C Act, Environmental Laws or Legal Requirements or (v) the sale, use or administration of any Product to the extent that after shipment by Supplier and through no fault or breach by Supplier hereunder, such Products (a) have been altered or adulterated, (b) have not been maintained in accordance with CGMP, applicable transportation, storage, handling or maintenance requirements, (c) have been damaged by negligence or accident or (d) have been damaged by acts of nature, vandalism, burglary, neglect or misuse other than by Supplier or its representatives. Nothing in this Section 21.1 or Section 21.3 below shall be construed to limit, and these provisions shall be in addition to, any indemnification provision in the Purchase Agreement and any other agreement between the parties. To the extent any breach of a representation and warranty hereunder constitutes a breach of a representation and warranty under the Purchase Agreement, then the indemnified party's exclusive 124 remedy with respect to such breach shall be to seek indemnification pursuant to the provisions of the Purchase Agreement27.2.

Indemnity by Supplier. Subject to the limitation set forth --------------------- in Section 9.9, with respect to Rejected Quantities not distributed to third parties and the provisions of Section 21.5 below, (a) Supplier shall indemnifydefend, defend indemnify and hold GWI and each GWI Affiliate who receives a Product subject to indemnity hereunder and their respective directors, officers, employees and agents (each a "GWI Indemnitee") harmless Applied from and against any and all Losses claims, demands, suits, actions, losses, penalties, damages (whether actual, punitive, consequential or otherwise), authorized settlements, and all other liabilities and associated costs and expenses, including attorney's fees, expert's fees, costs of investigation and other costs of litigation (all of the foregoing being collectively called "Indemnified Liabilities"), arising from, based upon solely out of or caused by the failure of any Products relating to conform to the Specifications prior to placement with the carrier, or (i) Supplier's (a) negligence or willful misconduct, including any such negligence or willful misconduct which results in an event described in Section 9.6 (in which case the Losses of GWI to be indemnified by Supplier, subject to Section 9.7(d), may also include the price paid by GWI to Supplier for such an affected Product and all costs incurred by GWI in connection therewith, including any implementation, storage and destruction costs), (b) failure to obtain, maintain or comply in any respect with any of its Consents which are required to perform any of its obligations hereunder or under other Legal Requirements, the Environmental Laws or the FD&C Act, (c) material breach of any provision of Supplier's covenants, obligations, representations or warranties under this Agreement or(d) destruction of any Product by Supplier in accordance with the terms of this Agreement. The foregoing indemnification obligations shall not apply in each case to the extent any particular Loss is a direct result of (i) the negligence or intentional misconduct of a GWI Indemnitee; (ii) a breach any negligent, grossly negligent or intentional acts, errors or omissions by GWI of a representation Supplier, its employees, officers, agents or covenant hereunder representatives; or under the Purchase Agreement; (iii) any failure by GWI strict liability or products liability with respect to comply or in connection with the FD&C Act or the provisions of Section 10.1 of this AgreementItems; or (iv) Supplier's compliance with the Specifications or an order of any claim by a Governmental Body directed to Sub-tier Supplier specifically regarding its compliance with CGMPs, the FD&C Act, Environmental Laws or Legal Requirements against Applied; or (v) the saleactual or alleged infringement or misappropriation of patent, use copyright, trademark, trade secret rights, confidential information, proprietary rights, or administration other rights of any Product a third party, except to the extent that after shipment the infringement or misappropriation was unavoidably caused by Supplier's compliance with a detailed design furnished and required by Applied. THE INDEMNITY BY SUPPLIER IN FAVOR OF APPLIED SHALL EXTEND TO APPLIED, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES AND SHALL INCLUDE, AND IS INTENDED TO INCLUDE, INDEMNIFIED LIABILITIES WHICH ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE THE RESULT OF ACTS OR OMISSIONS OF SUPPLIER AS A JOINT TORTFEASOR. IF SUPPLIER IS LIABLE ONLY AS A JOINT TORTFEASOR, THEN SUPPLIER'S LIABILITY SHALL NOT EXTEND TO THAT PORTION OF LIABILITY DETERMINED BY THE COURT TO BE THE RESULT OF ACTS OR OMISSIONS OF APPLIED. The indemnity of Supplier as to Indemnified Liabilities under clauses (ii) and through (iii) above, shall not extend to liabilities and damages that are caused by the sole negligence of Applied, and as to Indemnified Liabilities under clause (v), shall not extend to liabilities and damages that are caused as described in the "except to the extent" term of such clause (v). In addition to Supplier's obligations as to Indemnified Liabilities that arise under clause (v), Supplier shall, at Applied's option (1) procure for Applied and its customers the right to continue to use, sell and resale any affected Item, (2) with respect to a claim for infringement, modify the affected Item so that it is no fault longer infringing, or breach by Supplier hereunder(3) replace any affected Item with a non-infringing good or service comparable to the affected Item. If none of these alternatives are possible, such Products (a) Applied shall have been altered the right to return or adulteratedupon mutual agreement, destroy, any affected Items for a full refund of the purchase price, plus applicable transportation costs. (b) have not been maintained in accordance In the event of any such Indemnified Liabilities, Applied shall (i) promptly notify Supplier; (ii) at Supplier's expense, reasonably cooperate with CGMP, applicable transportation, storage, handling or maintenance requirements, (c) have been damaged by negligence or accident or (d) have been damaged by acts of nature, vandalism, burglary, neglect or misuse other than by Supplier or its representatives. Nothing in this Section 21.1 or Section 21.3 below shall be construed to limit, and these provisions shall be in addition to, any indemnification provision in the Purchase Agreement defense of such claim; and (iii) not settle any other agreement between the partiessuch Indemnified Liabilities without Supplier's written consent, which shall not be unreasonably withheld or delayed. To the extent any breach of a representation and warranty hereunder constitutes a breach of a representation and warranty under the Purchase Agreement, then the indemnified party's exclusive 124 remedy with respect to such breach Supplier shall be to seek indemnification pursuant keep Applied informed at all times as to the provisions status of Supplier's efforts and consult with Applied and/or its counsel regarding such efforts. Supplier shall not settle any such claim without the Purchase Agreementprior written consent of Applied, which shall not be unreasonably withheld or delayed.

Indemnity by Supplier. Subject to the limitation set forth --------------------- in Section 9.9, with respect to Rejected Quantities not distributed to third parties and the provisions of Section 21.5 below, (a) Supplier shall indemnifydefend, defend indemnify and hold GWI and each GWI Affiliate who receives a Product subject to indemnity hereunder and their respective directors, officers, employees and agents (each a "GWI Indemnitee") harmless Applied from and against any and all Losses third party claims, demands, suits, actions, losses, penalties, damages (whether actual, punitive, consequential or otherwise), authorized settlements, and all other liabilities and associated costs and expenses, including attorney's fees, expert's fees, costs of investigation and other costs of litigation (all of the foregoing being collectively called "Indemnified Liabilities"), arising from, based upon out of or caused by the failure of any Products relating to conform to the Specifications prior to placement with the carrier, or (i) Supplier's (a) negligence or willful misconduct, including any such negligence or willful misconduct which results in an event described in Section 9.6 (in which case the Losses of GWI to be indemnified by Supplier, subject to Section 9.7(d), may also include the price paid by GWI to Supplier for such an affected Product and all costs incurred by GWI in connection therewith, including any implementation, storage and destruction costs), (b) failure to obtain, maintain or comply in any respect with any of its Consents which are required to perform any of its obligations hereunder or under other Legal Requirements, the Environmental Laws or the FD&C Act, (c) material breach of any provision of Supplier's covenants, obligations, representations or warranties under this Agreement or(d) destruction of any Product by Supplier in accordance with the terms of this Agreement. The foregoing indemnification obligations shall not apply in each case to the extent any particular Loss is a direct result of (i) the negligence or intentional misconduct of a GWI Indemnitee; (ii) a breach any negligent, grossly negligent or intentional acts, errors or omissions by GWI of a representation Supplier, its employees, officers, agents or covenant hereunder or under representatives relating to the Purchase Agreement; (iii) any failure by GWI to comply with the FD&C Act or the provisions of Section 10.1 of this Agreement; or (iii) strict liability or products liability with respect to or in connection with the Items; (iv) Supplier's compliance with any claim by a Sub-tier Supplier against Applied relating to the Specifications or an order of a Governmental Body directed to Supplier specifically regarding its compliance with CGMPs, the FD&C Act, Environmental Laws or Legal Requirements Agreement; or (v) the saleactual or alleged infringement or misappropriation of patent, use copyright, trademark, trade secret rights, confidential information, proprietary rights, or administration other rights of any Product a third party, except to the extent that after shipment the infringement or misappropriation was caused by Supplier's compliance with a detailed design furnished and required by Applied. THE INDEMNITY BY SUPPLIER IN FAVOR OF APPLIED SHALL EXTEND TO APPLIED, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES AND SHALL INCLUDE, AND IS INTENDED TO INCLUDE, INDEMNIFIED LIABILITIES WHICH ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE THE RESULT OF ACTS OR OMISSIONS OF SUPPLIER AS A JOINT TORTFEASOR. IF SUPPLIER IS LIABLE ONLY AS A JOINT TORTFEASOR, THEN SUPPLIER'S LIABILITY SHALL NOT EXTEND TO THAT PORTION OF LIABILITY DETERMINED BY THE COURT TO BE THE RESULT OF ACTS OR OMISSIONS OF APPLIED. The indemnity of Supplier as to Indemnified Liabilities under clauses (ii) and through (iii) above, shall not extend to liabilities and damages that are caused by the sole negligence of Applied, and as to Indemnified Liabilities under clause (iv), shall not extend to liabilities and damages that are caused as described in the "except to the extent" term of such clause (iv). In addition to Supplier's obligations as to Indemnified Liabilities that arise under clause (iv), Supplier shall, in order of GLOBAL SUPPLY AGREEMENT (1) procure for Applied and its customers the right to continue to use, sell and resale any affected Item, (2) with respect to a claim for infringement, modify the affected Item so that it is no fault longer infringing, or breach by Supplier hereunder(3) replace any affected Item with a non-infringing good or service comparable to the affected Item. If none of these alternatives are possible, such Products (a) Applied shall have been altered the right to return or adulterateddestroy, at Applied's option, any affected Items for a full refund of the purchase price, plus applicable transportation costs. (b) have not been maintained in accordance In the event of any such Indemnified Liabilities, Applied shall (i) promptly notify Supplier; (ii) at Supplier's expense, reasonably cooperate with CGMP, applicable transportation, storage, handling or maintenance requirements, (c) have been damaged by negligence or accident or (d) have been damaged by acts of nature, vandalism, burglary, neglect or misuse other than by Supplier or its representatives. Nothing in this Section 21.1 or Section 21.3 below shall be construed to limit, and these provisions shall be in addition to, any indemnification provision in the Purchase Agreement defense of such claim; and (iii) not settle any other agreement between the partiessuch Indemnified Liabilities without Supplier's written consent, which shall not be unreasonably withheld or delayed. To the extent any breach of a representation and warranty hereunder constitutes a breach of a representation and warranty under the Purchase Agreement, then the indemnified party's exclusive 124 remedy with respect to such breach Supplier shall be to seek indemnification pursuant keep Applied informed at all times as to the provisions status of Supplier's efforts and consult with Applied and/or its counsel regarding such efforts. Supplier shall not settle any such claim without the Purchase Agreementprior written consent of Applied, which shall not be unreasonably withheld or delayed.