Common use of Novadaq’s Indemnity Obligations Clause in Contracts

Novadaq’s Indemnity Obligations. Novadaq shall indemnify, defend and hold harmless LifeCell and its Affiliates, and their respective officers, directors, employees, customers, and agents (the “LifeCell Indemnitees”) from and against (and shall on demand reimburse them for) any claim made by a third party that a Product infringes any copyright, trademark, trade secret or patent (a “Claim”). Novadaq shall pay any and all liabilities, damages, losses, demands, actions, suits, proceedings, claims, deficiencies, penalties, interest, expenses, fines, assessments, charges and costs (including, without limitation, reasonable attorneys fees, costs of investigation and court costs), attributable to a Claim that are awarded against the LifeCell Indemnitees in a settlement approved in advance and in writing by Novadaq or by judgment of a court or imposition by a government body, provided, however, that LifeCell: (a) has promptly notified Novadaq in writing of the Claim after LifeCell becomes aware of such Claim and solely to the extent that any delay in such notification has materially prejudiced any defense of such Claim; (b) gives Novadaq sole control of the defense and settlement of the Claim; provided, however, that Novadaq agrees to indemnify and defend LifeCell for such claim; and (c) provides Novadaq with all timely assistance, information and authority required for the defense and settlement of the Claim that is requested in writing by Novadaq. Novadaq shall have no obligations under this Section 19.1 if (i) the infringement is caused by the use of any non-Product, information, design, specification, instruction, software, data or material in combination with the Product in a manner inconsistent with the intended use or documentation of the Product where such infringement would not have arisen but for such combination; (ii) the infringement is caused by the modification of the Product not authorized by Novadaq where such infringement would not have arisen but for such modification; (iii) the infringement is caused by the use of a prior version of the Product Software if use of the current version would be non-infringing, Novadaq has instructed the LifeCell Indemnitees in writing to use such current version to avoid such infringement, and such current version is provided by Novadaq to such LifeCell Indemnitees free of charge. If a Product becomes subject to a Claim asserted in a court of law, Novadaq shall, at its expense: (A) modify the Product to be noninfringing in a manner that preserves all of the features, functionality, and benefits of the Product without the need for additional regulatory approval, or (B) obtain for LifeCell a license to continue using the Product. If in Novadaq’s sole judgment it is not commercially reasonable to perform either of the above options, and the use of such Product becomes permanently enjoined, then Novadaq may repurchase the allegedly infringing Product and refund to LifeCell the purchase price paid by LifeCell for the Product. THIS SECTION SETS FORTH NOVADAQ’S SOLE OBLIGATIONS, AND LifeCell’s SOLE REMEDIES, IN THE EVENT OF ANY INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE PRODUCTS.

Novadaq’s Indemnity Obligations. Novadaq shall indemnify, defend and hold harmless LifeCell MR and its Affiliates, and their respective officers, directors, employees, customers, and agents (the “LifeCell MR Indemnitees”) from and against (and shall on demand reimburse them for) any claim made by a third party that a Product infringes any copyright, trademark, trade secret or patent (a “Claim”). Novadaq shall pay any and all liabilities, damages, losses, demands, actions, suits, proceedings, claims, deficiencies, penalties, interest, expenses, fines, assessments, charges and costs (including, without limitation, reasonable attorneys fees, costs of investigation and court costs), attributable to a Claim that are awarded against the LifeCell MR Indemnitees in a settlement approved in advance and in writing by Novadaq or by judgment of a court or imposition by a government body, provided, however, that LifeCellLifeCell MR: (a) has promptly notified Novadaq in writing of the Claim after LifeCell MR becomes aware of such Claim and solely to the extent that any delay in such notification has materially prejudiced any defense of such Claim; (b) gives Novadaq sole control of the defense and settlement of the Claim; provided, however, that Novadaq agrees to indemnify and defend LifeCell MR for such claim; and (c) provides Novadaq with all timely assistance, information and authority required for the defense and settlement of the Claim that is requested in writing by Novadaq. Novadaq shall have no obligations under this Section 19.1 if (i) the infringement is caused by the use of any non-Product, information, design, specification, instruction, software, data or material in combination with the Product in a manner inconsistent with the intended use or documentation of the Product where such infringement would not have arisen but for such combination; (ii) the infringement is caused by the modification of the Product not authorized by Novadaq where such infringement would not have arisen but for such modification; (iii) the infringement is caused by the use of a prior version of the Product Software if use of the current version would be non-infringing, Novadaq has instructed the LifeCell MR Indemnitees in writing to use such current version to avoid such infringement, and such current version is provided by Novadaq to such LifeCell MR Indemnitees free of charge. If a Product becomes subject to a Claim asserted in a court of law, Novadaq shall, at its expense: (A) modify the Product to be noninfringing in a manner that preserves all of the features, functionality, and benefits of the Product without the need for additional regulatory approval, or (B) obtain for LifeCell MR a license to continue using the Product. If in Novadaq’s sole judgment it is not commercially reasonable to perform either of the above options, and the use of such Product becomes permanently enjoined, then Novadaq may repurchase the allegedly infringing Product and refund to LifeCell MR the purchase price paid by LifeCell MR for the Product. THIS SECTION SETS FORTH NOVADAQ’S SOLE OBLIGATIONS, AND LifeCell’s LifeCell MR’S SOLE REMEDIES, IN THE EVENT OF ANY INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE PRODUCTS.

Novadaq’s Indemnity Obligations. Novadaq shall indemnify, defend and hold harmless LifeCell KCI MR and its Affiliates, and their respective officers, directors, employees, customers, and agents (the “LifeCell KCI MR Indemnitees”) from and against (and shall on demand reimburse them for) any claim made by a third party that a Product infringes any copyright, trademark, trade secret or patent (a “Claim”). Novadaq shall pay any and all liabilities, damages, losses, demands, actions, suits, proceedings, claims, deficiencies, penalties, interest, expenses, fines, assessments, charges and costs (including, without limitation, reasonable attorneys fees, costs of investigation and court costs), attributable to a Claim that are awarded against the LifeCell KCI MR Indemnitees in a settlement approved in advance and in writing by Novadaq or by judgment of a court or imposition by a government body, ; provided, however, that LifeCellKCI MR: (a) has promptly notified Novadaq in writing of the Claim after LifeCell KCI MR becomes aware of such Claim and solely to the extent that any delay in such notification has materially prejudiced any defense of such Claim; (b) gives Novadaq sole control of the defense and settlement of the Claim; provided, however, that Novadaq agrees to indemnify and defend LifeCell KCI MR for such claim; and (c) provides Novadaq with all timely assistance, information and authority required for the defense and settlement of the Claim that is requested in writing by Novadaq. Novadaq shall have no obligations under this Section 19.1 if (i) the infringement is caused by the use of any non-Product, information, design, specification, instruction, software, data or material in combination with the Product in a manner inconsistent with the intended use or documentation of the Product where such infringement would not have arisen but for such combination; (ii) the infringement is caused by the modification of the Product not authorized by Novadaq where such infringement would not have arisen but for such modification; (iii) the infringement is caused by the use of a prior version of the Product Software if use of the current version would be non-infringing, Novadaq has instructed the LifeCell KCI MR Indemnitees in writing to use such current version to avoid such infringement, and such current version is provided by Novadaq to such LifeCell KCI MR Indemnitees free of charge. If a Product becomes subject to a Claim asserted in a court of law, Novadaq shall, at its expense: (A) modify the Product to be noninfringing in a manner that preserves all of the features, functionality, and benefits of the Product without the need for additional regulatory approval, or (B) obtain for LifeCell KCI MR a license to continue using the Product. If in Novadaq’s sole judgment it is not commercially reasonable to perform either of the above options, and the use of such Product becomes permanently enjoined, then Novadaq may repurchase the allegedly infringing Product and refund to LifeCell KCI MR the purchase price paid by LifeCell KCI MR for the Product. THIS SECTION SETS FORTH NOVADAQ’S SOLE OBLIGATIONS, AND LifeCell’s KCI MR’S SOLE REMEDIES, IN THE EVENT OF ANY INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE PRODUCTS.

Novadaq’s Indemnity Obligations. Novadaq shall indemnify, defend and hold harmless LifeCell KCI US and its Affiliates, and their respective officers, directors, employees, customers, and agents (the “LifeCell KCI US Indemnitees”) from and against (and shall on demand reimburse them for) any claim made by a third party that a Product infringes any copyright, trademark, trade secret or patent (a “Claim”). Novadaq shall pay any and all liabilities, damages, losses, demands, actions, suits, proceedings, claims, deficiencies, penalties, interest, expenses, fines, assessments, charges and costs (including, without limitation, reasonable attorneys fees, costs of investigation and court costs), attributable to a Claim that are awarded against the LifeCell KCI US Indemnitees in a settlement approved in advance and in writing by Novadaq or by judgment of a court or imposition by a government body, ; provided, however, that LifeCellKCI US: (a) has promptly notified Novadaq in writing of the Claim after LifeCell KCI US becomes aware of such Claim and solely to the extent that any delay in such notification has materially prejudiced any defense of such Claim; (b) gives Novadaq sole control of the defense and settlement of the Claim; provided, however, that Novadaq agrees to indemnify and defend LifeCell KCI US for such claim; and (c) provides Novadaq with all timely assistance, information and authority required for the defense and settlement of the Claim that is requested in writing by Novadaq. Novadaq shall have no obligations under this Section 19.1 if (i) the infringement is caused by the use of any non-Product, information, design, specification, instruction, software, data or material in combination with the Product in a manner inconsistent with the intended use or documentation of the Product where such infringement would not have arisen but for such combination; (ii) the infringement is caused by the modification of the Product not authorized by Novadaq where such infringement would not have arisen but for such modification; (iii) the infringement is caused by the use of a prior version of the Product Software if use of the current version would be non-infringing, Novadaq has instructed the LifeCell KCI US Indemnitees in writing to use such current version to avoid such infringement, and such current version is provided by Novadaq to such LifeCell KCI US Indemnitees free of charge. If a Product becomes subject to a Claim asserted in a court of law, Novadaq shall, at its expense: (A) modify the Product to be noninfringing in a manner that preserves all of the features, functionality, and benefits of the Product without the need for additional regulatory approval, or (B) obtain for LifeCell KCI US a license to continue using the Product. If in Novadaq’s sole judgment it is not commercially reasonable to perform either of the above options, and the use of such Product becomes permanently enjoined, then Novadaq may repurchase the allegedly infringing Product and refund to LifeCell KCI US the purchase price paid by LifeCell KCI US for the Product. THIS SECTION SETS FORTH NOVADAQ’S SOLE OBLIGATIONS, AND LifeCell’s KCI US’S SOLE REMEDIES, IN THE EVENT OF ANY INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE PRODUCTS.