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 no fault or breach (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 hereundershall, such Products at Applied’s option (a1) have been altered or adulteratedprocure for Applied and its customers the right to continue to use, sell and resale any affected Item, (b2) 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 a claim for infringement, modify the affected Item so that it is no longer infringing, or (3) replace any affected Item with a non-infringing good or Service comparable to the provisions affected Item. If none of these alternatives are possible, Applied shall have the right to return or destroy, at Applied’s option, any affected Items for a full refund of the Purchase Agreementpurchase price, plus applicable transportation costs.

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 no fault or breach (iii) above, shall not extend to liabilities and damages that are caused 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 the sole 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 limitApplied, and these provisions as to Indemnified Liabilities under clause (iv), shall be in addition to, any indemnification provision not extend to liabilities and damages that are caused as described 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 "except to the provisions extent" term of the Purchase Agreement.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