Product Liability and Intellectual Property Infringement Indemnification Sample Clauses

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Product Liability and Intellectual Property Infringement Indemnification 

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Related to Product Liability and Intellectual Property Infringement Indemnification

• Intellectual Property Indemnification Seller shall defend, indemnify and hold Purchaser and its Affiliates harmless from and against any and all expenses, costs, claims, demands, causes of action and damages of whatever kind which Purchaser may incur in connection with any suit or claim of infringement of any patent, copyright or trademark, or misappropriation of any trade secret or other intellectual property right resulting from (i) Purchaser's or its Affiliates' use of any portion of the Equipment as contemplated in the Proposal and otherwise in accordance with this Sales Agreement or applicable Equipment documentation delivered by Purchaser by Seller hereunder, or (ii) performance of the Work, except, in each case with respect to each of the foregoing clauses (i) and (ii), to the extent directly attributable to Third-Party Hardware or Third-Party Software. Seller shall receive written notice from Purchaser within ten (10) days after proper legal service is received by Purchaser of any such suit or claim, provided that failure to receive such notice shall not relieve Seller of its obligations under this Article 3 except to the extent that Seller's ability to defend such suit or claim is materially impaired due to such failure. Seller is hereby authorized by Purchaser to, at Seller's expense, appear in and assume the defense of, and be given the complete control of the settlement of, any such suit or claim; provided that (a) if Purchaser or any of its Affiliates wishes to participate in the defense and settlement of the claim, Purchaser or any of its Affiliates may do at its own cost, (b) Purchaser is kept timely informed of all material actions taken by Seller in connection with any such settlement, suit or claim (including, without limitation, of settlement offers and responses (to the extent the delivery of such information does not require Seller to waive work product immunity or attorney/client privilege or otherwise violate the terms of any protective order between Seller and any third party plaintiff or defendant)); and (c) Seller shall not enter into or acquiesce to any settlement admitting to or stipulating to any guilt, fault, liability or wrongdoing on the part of Purchaser or any of its Affiliates without Purchaser's prior written consent. In the event that Purchaser's right or ability to use the Equipment is threatened or impaired as a result of any such suit or claim, Seller shall, at its own expense, do one of the following, (1) diligently procure for Purchaser the right to continue using the Equipment, or (2) modify the Equipment or, if necessary and by mutual agreement, substitute functionally equivalent Equipment, to the extent necessary to avoid infringement or misappropriation; provided in each case that if such modified or substituted equipment fails to comply with all Specifications applicable to the original, unmodified Equipment, Purchaser shall be entitled to equitable compensation with respect to such noncompliance. Seller hereby assigns to or otherwise transfers to the benefit of Purchaser all of its right, title and interest in and to any intellectual property right infringement or misappropriation indemnification or defense rights Seller may have with respect to Third Party Software and Third Party Hardware, and will, at its expense, take any actions as may be necessary to enable Purchaser to exercise such rights and realize such benefit to the fullest extent possible. It is mutually agreed that the provisions set forth herein are Seller's only obligations with respect to infringement of any patent, copyright or trademark, or misappropriation of any trade secret or other intellectual property right.

• Infringement Indemnification (a) BNYM shall defend and indemnify Company against any third party claim alleging that the Licensed System infringes in any material respect upon any United States patent or copyright or any trade secret or other proprietary right of any person. BNYM shall have no liability or obligation under this Section 5.1 unless Company gives written notice to BNYM within ten (10) days (provided that later notice shall relieve BNYM of its liability and obligations under this Section 5.1 only to the extent that BNYM is prejudiced by such later notice) after any applicable infringement claim is initiated against Company and allows BNYM to have sole control of the defense or settlement of the claim. The remedies provided in this Section 5.1 are the Company's sole remedies for third party claims against the Company alleging infringement by the Licensed System. If any applicable claim is initiated, or in BNYM's sole opinion is likely to be initiated, then BNYM shall have the option, at its expense, to:

• Intellectual Property Infringement To the knowledge of the Company and the Operating Partnership and except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, neither the Company nor any of its Subsidiaries has infringed or is infringing the intellectual property of a third party, and neither the Company nor any of its Subsidiaries has received notice of a claim by a third party to the contrary, except for any such notice that would not reasonably be expected to have a Material Adverse Effect.

• Intellectual Property Indemnity The Seller shall indemnify, defend and hold harmless, the Buyer, its Affiliates and its and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilities, damages, losses, costs or expenses (including, without limitation, attorneys’ fees and expenses) arising out of any suit, claim, or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing of the Claim; (b) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer shall have the right to participate at the Seller’s expense in any such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of any such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunder.

• PATENT INDEMNITY Customer hereby indemnifies and holds harmless Boeing from and against all claims, suits, actions, liabilities, damages and costs arising out of any actual or alleged infringement of any patent or other intellectual property rights by BFE or arising out of the installation, sale or use of BFE by Boeing.

• Infringement Indemnity VERITAS, at its sole expense, will defend any action brought against IMG, any IMG Distributors, or their End User customers ("Indemnified Parties") to the extent based on a claim that any Software Product or Documentation infringes any patent, copyright, trade secret, or other intellectual property right. VERITAS will pay any award against the Indemnified Parties, or settlement entered into on the Indemnified Parties' behalf, and will indemnify and hold IMG harmless against all liability, costs, expenses, and direct damages suffered or incurred by IMG, based on such infringement or claim thereof, provided however that IMG shall notify VERITAS promptly in writing of the claim, shall provide reasonable assistance (at VERITAS' expense) in connection with the defense and/or settlement thereof, and shall permit VERITAS to control the defense and/or settlement thereof. Any settlement which restricts any of IMG's rights, licenses, or activities, or requires the payment of money by IMG (whether or not such payment is indemnified hereunder) shall be subject to IMG's prior written approval, which approval shall not be unreasonably withheld. IMG shall be entitled to retain, at its expense so long as VERITAS performs its obligations pursuant to this section, counsel to participate in the defense and settlement of any claim. VERITAS shall have no liability to the extent the alleged infringement is caused by any modification of the Software Products or Documentation other than by VERITAS, or by combination of the Software Products or Documentation with IMG products or other non-VERITAS programs, where the unmodified Software Products or Documentation alone would not have given rise to the claim. In the case any such excluded claim IMG shall defend and indemnify VERITAS to the same extent, and subject to the same conditions, as provided herein. The foregoing states the exclusive remedy of VERITAS and the sole liability of IMG for intellectual property infringement.

• Third Party Infringement Claims If the production, sale or use of the any Licensed Product in or outside the Territory results in a claim, suit or proceeding alleging patent infringement against Licensee or Licensor (or their respective Affiliates, licensees or Sublicensees) (collectively, “Infringement Actions”), such Party shall promptly notify the other Party hereto in writing. The Party subject to such Infringement Action shall have the right to direct and control the defense thereof, at its own expense with counsel of its choice; provided, however, that (i) if such Infringement Action involves the Territory, Licensee shall have the right to assume the defense thereof in the Territory and to direct and control the defense thereof, at its own expense with counsel of its choice, (ii) if such Infringement Action involves Japan, Licensor shall have the right to assume the defense thereof within Japan and to direct and control the defense thereof, at its own expense with counsel of its choice, (iii) if such Infringement Action involves both the Territory and Japan, the Parties shall cooperate in good faith with respect to their respective defenses of such Infringement Actions, and (iv) in all cases the other Party may participate in the defense and/or settlement thereof, at its own expense with counsel of its choice. In any event, the Party that is defending the Infringement Action (the “Defending Party”) agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement Action and the Parties shall reasonably cooperate in the defense of any such suit or Infringement Action. If Licensee is the Defending Party, Licensee agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Licensed Product or the manufacture, use or sale of the Licensed Product within or outside the Territory, without the prior written consent of Licensor, which shall not be unreasonably withheld or delayed; and similarly if Licensor is the Defending Party, Licensor agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Licensed Product, or the manufacturing, use or sale of the Licensed Product, in the Territory, without the prior written consent of Licensee, which shall not be unreasonably withheld or delayed.

• Product Liability Claims Notwithstanding the provisions of Section 9.2, any Losses arising out of any Third Party claim, suit, action, proceeding, liability or obligation involving any actual or alleged death or bodily injury arising out of or resulting from the development, manufacture or Commercialization of any Fibrocell Products or Improved Products for use or sale in the Field, to the extent that such Losses exceed the amount (if any) covered by the applicable Party’s product liability insurance (“Excess Product Liability Costs”), shall be paid by [*****], except to the extent such Losses arise out of any Third-Party Claim based on the gross negligence or willful misconduct of a Party, its Affiliates, or its Affiliates’ sublicensees, or any of the respective officers, directors, employees and agents of each of the foregoing entities, in the performance of obligations or exercise of rights under this Agreement.

• Intellectual Property Claims Borrower is the sole owner of, or otherwise has the right to use, the Intellectual Property. Except as described on Schedule 5.9,(i) each of the material Copyrights, Trademarks and Patents is valid and enforceable, (ii) no material part of the Intellectual Property has been judged invalid or unenforceable, in whole or in part, and (iii) no claim has been made to Borrower that any material part of the Intellectual Property violates the rights of any third party. Exhibit D is a true, correct and complete list of each of Borrower’s Patents, registered Trademarks, registered Copyrights, and material agreements under which Borrower licenses Intellectual Property from third parties (other than shrink-wrap software licenses), together with application or registration numbers, as applicable, owned by Borrower or any Subsidiary, in each case as of the Closing Date. Borrower is not in material breach of, nor has Borrower failed to perform any material obligations under, any of the foregoing contracts, licenses or agreements and, to Borrower’s knowledge, no third party to any such contract, license or agreement is in material breach thereof or has failed to perform any material obligations thereunder.

• Standard of Care, Liability and Indemnification (a) The Sub-Advisor shall exercise reasonable care and prudence in fulfilling its obligations under this Agreement.