Common use of Vendor Indemnity Clause in Contracts

Vendor Indemnity. (a) The Vendor will indemnify and hold the Owner and its affiliates, partners, directors, officers, agents and employees (the "Indemnitees") harmless from and against all third party claims, demands suits, proceedings, damages, costs, expenses, liabilities, including, without limitation, reasonable legal fees (collectively, "Liabilities") brought against or incurred by any Indemnitee for (i) injury to persons, or (ii) loss or damage to any property, or (iii) any other liability, resulting from any act or omission, of the Vendor in the performance of this Agreement. If the Vendor and the Owner jointly cause such Liabilities, the Parties will share the liability in proportion to their respective degree of causal responsibility. (b) The Vendor's obligation to indemnify under subsection 9.1 (a) with respect to any Liability will not arise unless the Indemnitee (i) notifies the Vendor in writing of such potential Liability within a reasonable time after the Indemnitee is aware of such potential Liability; provided that the lack of providing such notice will not affect the Vendor's obligation hereunder (A) if the Vendor otherwise has actual knowledge of such Liability and (B) unless such lack of notice is the cause of the Vendor being unable to adequately and reasonably defend such Liability, (ii) gives the Vendor the opportunity and authority to assume the defense of and settle such Liability, subject to the provisions set forth below, and (iii) furnishes to the Vendor all such reasonable information and assistance available to the Owner (or other Indemnities) as may be reasonably requested by the Vendor and necessary for the defense against such Liability. The Vendor will assume on behalf of the Indemnitee and conduct in good faith the defense of such Liability with counsel (including in-house counsel) reasonably satisfactory to the Indemnitee; provided that the Indemnitee will have the right to be represented therein by advisory counsel of its own selection and at its own expense. If the Indemnitee will have reasonably concluded that there may be legal defenses available to it which are different from or additional to, or inconsistent with, those available to the Vendor, the Indemnitee will have the right to select separate counsel reasonably satisfactory to the Vendor to participate in the defense of such action on its own behalf at such Indemnitee's expense. In the event the Vendor fails, after written demand by such Indemnitee, to defend any Liability as to which an indemnity should be provided under subsection 9.1(a), then the Indemnitee may, at the Vendor's expense, contest or settle such matter without the Vendor's consent. All payments, losses, damages and reasonable costs and expenses incurred in connection with such contest, payment or settlement controlled by such Indemnitee will be to the Vendor's account. The Vendor will not settle any such Liability without the consent of the Indemnitee, which consent will not be unreasonably withheld. This indemnity is in lieu of all other obligations of the Vendor, expressed or implied, in law or in equity, to indemnify the Indemnitees (except those other indemnity obligations expressly set forth in this Agreement). (c) EXCEPT AS EXPRESSLY SET FORTH IN SUBSECTIONS 3.7, 3.8 AND 3.10 OF THIS AGREEMENT, THE VENDOR MAKES NO WARRANTIES AS TO PRODUCTS, SOFTWARE, TECHNOLOGY, MATERIALS, SERVICES, INFORMATION OR OTHER ITEMS IT FURNISHES TO THE OWNER, AGENTS OR PURCHASERS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT SUCH ITEMS ARE FREE FROM THE RIGHTFUL CLAIM OF ANY THIRD PARTY, BY WAY OF INFRINGEMENT OR THE LIKE. (d) EXCEPT AS PROVIDED IN SUBSECTIONS 3.2(c), 4.2, 7.1, 7.4 AND 9.2 HEREOF NEITHER PARTY WILL BE LIABLE TO THE OTHER (ITS AGENTS OR, IN THE CASE OF THE VENDOR, THE PURCHASERS) FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OR ANY OTHER INDIRECT LOSSES OR DAMAGES ARISING OUT OF THIS AGREEMENT, THE DELIVERY OR THE FAILURE TO DELIVER ANY OF THE PRODUCTS OR ANY COMPONENT THEREOF, ANY BREACH OF THIS AGREEMENT, THE FAILURE OF THE PRODUCTS TO PERFORM AS WARRANTED OR OTHERWISE OR ANY RESULTING OBLIGATION, OR THE USE OR INABILITY TO USE OF ANY PRODUCTS DELIVERED PURSUANT TO THIS AGREEMENT, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, FOR TORT, OR ANY OTHER CAUSE OF ACTION. EXCEPT AS PROVIDED IN SUBSECTIONS 3.2(c), 4.2, 7.1, 7.4 AND 9.2 HEREOF IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER (ITS AGENTS OR, IN THE CASE OF THE VENDOR, THE PURCHASERS) FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGE OR LOSS OF ANY NATURE WHICH MAY ARISE IN CONNECTION WITH THE USE, DISTRIBUTION, INSTALLATION, REMOVAL, MAINTENANCE OR SUPPORT OF PRODUCTS AND/OR SOFTWARE (SEPARATELY OR IN COMBINATION WITH EACH OTHER OR WITH OTHER PRODUCTS AND/OR SOFTWARE NOT PROVIDED BY VENDOR) BY OWNER, AGENTS AND ANY PURCHASER PURSUANT TO OR UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, PRODUCTS LIABILITY OR OTHERWISE, EVEN IF THE CLAIMANT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.

Vendor Indemnity. (a) The Vendor will indemnify and hold the ---------------- Owner and its affiliates, partners, directors, officers, agents and employees (the "Indemnitees") harmless from and against all third party claims, demands demands, suits, proceedings, damages, costs, expenses, liabilities, including, without limitation, reasonable legal fees (collectively, "Liabilities") brought against or incurred by any Indemnitee for (i) injury to personspersons (including physical or mental injury, libel, slander and death), or (ii) loss or damage to any property, or (iii) any other liability, in each instance resulting from any act the negligence, willful misconduct or omissiongross negligence, of the Vendor in the performance of this Agreement. If the Vendor and the Owner jointly cause such Liabilities, the Parties will share the liability in proportion to their respective degree of causal responsibility. (b) The Vendor's obligation to indemnify under subsection 9.1 (a) with respect to any Liability will not arise unless the Indemnitee (i) notifies the Vendor in writing of such potential Liability within a reasonable time after the Indemnitee is aware of such potential Liability; provided that the -------- ---- lack of providing such notice will not affect the Vendor's obligation hereunder (A) if the Vendor otherwise has actual knowledge of such Liability and (B) unless such lack of notice is the cause of the Vendor being unable to adequately and reasonably defend such Liability, (ii) gives the Vendor the opportunity and authority to assume the defense of and settle such Liability, subject to the provisions set forth belowof the next two sentences, and (iii) furnishes to the Vendor all such reasonable information and assistance available to the Owner (or other Indemnities) as may be reasonably requested by the Vendor and necessary for the defense against such Liability. The Vendor will assume on behalf of the Indemnitee and conduct in good faith the defense of such Liability with counsel (including in-house counsel) reasonably satisfactory to the Indemnitee; provided that the Indemnitee -------- ---- will have the right to be represented therein by advisory counsel of its own selection and at its own expense. If the Indemnitee will have reasonably concluded that there may be legal defenses available to it which are different from or additional to, or inconsistent with, those available to the Vendor, the Indemnitee will have the right to select separate counsel reasonably satisfactory to the Vendor to participate in the defense of such action on its own behalf at such Indemnitee's expense. In the event the Vendor fails, after written demand by such Indemnitee, to defend any Liability as to which an indemnity should be provided under subsection 9.1(a), then the Indemnitee may, at the Vendor's expense, contest or settle such matter without the Vendor's consent. All payments, losses, damages and reasonable costs and expenses incurred in connection with such contest, payment or settlement controlled by such Indemnitee will be to the Vendor's account. The Vendor will not settle any such Liability without the consent of the Indemnitee, which consent will not be unreasonably withheld. Any such Indemnitee will exercise its best efforts to respond to any request for a consent prior to the expiration of any such settlement offer. This indemnity is in lieu of all other obligations of the Vendor, expressed or implied, in law or in equity, to indemnify the Indemnitees (except those other indemnity obligations expressly set forth in this Agreement). (c) EXCEPT AS EXPRESSLY SET FORTH IN SUBSECTIONS 3.7, 3.7 AND 3.8 AND 3.10 OF THIS AGREEMENT, THE VENDOR MAKES NO WARRANTIES AS TO PRODUCTS, SOFTWARE, TECHNOLOGY, MATERIALS, SERVICES, INFORMATION OR OTHER ITEMS IT FURNISHES TO THE OWNER, AGENTS OR PURCHASERS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT SUCH ITEMS ARE FREE FROM THE RIGHTFUL CLAIM OF ANY THIRD PARTY, BY WAY OF INFRINGEMENT OR THE LIKE. (d) EXCEPT AS PROVIDED IN SUBSECTIONS 3.2(c), 4.2, 5.2(c), 5.2(d), 7.1, 7.4 7.4, 9.2 AND 9.2 HEREOF 9.4 HEREOF, NEITHER PARTY WILL BE LIABLE TO THE OTHER (ITS AGENTS OR, IN THE CASE OF THE VENDOR, THE PURCHASERS) FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OR ANY OTHER INDIRECT LOSSES OR DAMAGES ARISING OUT OF THIS AGREEMENT, THE DELIVERY OR THE FAILURE TO DELIVER ANY OF THE PRODUCTS OR ANY COMPONENT THEREOF, ANY BREACH OF THIS AGREEMENT, THE FAILURE OF THE PRODUCTS TO PERFORM AS WARRANTED OR OTHERWISE OR ANY RESULTING OBLIGATION, OR THE USE OR INABILITY TO USE OF ANY PRODUCTS DELIVERED PURSUANT TO THIS AGREEMENT, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, FOR TORT, OR ANY OTHER CAUSE OF ACTION. EXCEPT AS PROVIDED IN SUBSECTIONS 3.2(c), 4.2, 5.2(c), 5.2(d), 7.1, 7.4 7.4, 9.2 AND 9.2 HEREOF 9.4 HEREOF, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER (ITS AGENTS OR, IN THE CASE OF THE VENDOR, THE PURCHASERS) FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGE OR LOSS OF ANY NATURE WHICH MAY ARISE IN CONNECTION WITH THE USE, DISTRIBUTION, INSTALLATION, REMOVAL, MAINTENANCE OR SUPPORT OF PRODUCTS AND/OR SOFTWARE (SEPARATELY OR IN COMBINATION WITH EACH OTHER OR WITH OTHER PRODUCTS AND/OR SOFTWARE NOT PROVIDED BY VENDOR) BY OWNER, AGENTS AND ANY PURCHASER PURSUANT TO OR UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, PRODUCTS LIABILITY OR OTHERWISE, EVEN IF THE CLAIMANT PARTY SOUGHT TO BE HELD LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. (e) IN NO EVENT WILL THE TOTAL LIABILITY OF THE VENDOR UNDER THIS AGREEMENT, WHETHER SUCH LIABILITY BE IN CONTRACT, STRICT LIABILITY, PRODUCTS LIABILITY OR TORT (INCLUDING NEGLIGENCE), EXCEED THE GREATER OF (x) [ ] AND [ ] PROVIDED THAT ANY SUCH PURCHASE ORDERS ARE IN FACT PAID FOR PRIOR TO -------- ---- OR OFFSET AGAINST THE PAYMENT OF ANY AMOUNTS OWED BY THE VENDOR TO THE OWNER PURSUANT TO THE VENDOR INDEMNITIES UNDER THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, IN THE EVENT THE OWNER EXERCISES ITS RIGHTS TO PURCHASE REPLACEMENT PRODUCTS IN CONNECTION WITH THE CANCELLATION OF A PURCHASE ORDER, THE TERMINATION OF THIS AGREEMENT OR THE REPURCHASE OR RECALL OF ANY PRODUCTS (WHETHER PURSUANT TO SUBSECTION 3.10(b), 3.22(b), 4.2(e), 10.2, 10.3, 10.6, 11.10 OF OTHERWISE), THE AMOUNT THAT THE VENDOR SHALL BE LIABLE TO THE OWNER WITH RESPECT TO THOSE ADDITIONAL EXPENSES AND COSTS INCURRED BY THE OWNER (IN CONNECTION WITH ACQUIRING SUCH REPLACEMENT PRODUCTS) IN EXCESS OF ANY EXPENSES AND COSTS THE OWNER WOULD HAVE OTHERWISE INCURRED UNDER THIS AGREEMENT IN PURCHASING THE SUBJECT PRODUCTS, SHALL NOT EXCEED (I) IF THE SUBJECT PRODUCTS TO BE REPLACED ARE PRODUCTS THAT CONSTITUTE PART OF THE FIRST [ ] OF THE TOTAL MINIMUM COMMITMENT, [ ] OF THE PURCHASE PRICE OF THE SUBJECT PRODUCTS SO REPLACED, AND (II) WITH RESPECT TO ALL OTHER PRODUCTS, [ ] OF THE PURCHASE PRICE OF THE SUBJECT PRODUCTS SO REPLACED. (f) IN NO EVENT WILL THE TOTAL LIABILITY OF THE OWNER UNDER THIS AGREEMENT, WHETHER SUCH LIABILITY BE IN CONTRACT, STRICT LIABILITY, PRODUCTS LIABILITY OR TORT (INCLUDING NEGLIGENCE), EXCEED THE GREATER OF (x) [ ] AND [ ].

Vendor Indemnity. (a) The Vendor will indemnify and hold the Owner ---------------- and its affiliatesAffiliates, partners, directors, officers, agents and employees (the "Indemnitees") harmless from and against all third party claims, demands suits, proceedings, damages, costs, expenses, liabilities, liabilities (including, without limitation, reasonable legal fees fees) or causes of action (collectively, "Liabilities") brought against or incurred by any Indemnitee for (i) injury to personspersons (including physical or mental injury, libel, slander and death), or (ii) loss or damage to any property, or (iii) violations of Applicable Laws, Applicable Permits, codes, ordinances or regulations by the Vendor, or (iv) any patent or trademark claims arising out of the Vendor's obligation subject to subsection 14.2 or (v) any other liability, resulting from any act the acts or omissionomissions, negligence, error, wilful misconduct or strict liability, of the Vendor Vendor, its officers, agents, employees, or Subcontractors in the performance of this AgreementContract. If the Vendor and the Owner jointly cause such Liabilities, the Parties will share the liability in proportion to their respective degree of causal responsibility. (b) The Vendor's obligation to indemnify under subsection 9.1 (a20.1(a) with respect to any Liability will not arise unless the Owner or the Indemnitee (i) notifies the Vendor in writing of such potential Liability Liability, in the case of the Owner, within a reasonable time after the Indemnitee is aware Owner will receive written notice of such potential Liability; provided that the lack of providing such notice will not affect the -------- ---- Vendor's obligation hereunder (A) if the Vendor otherwise has actual knowledge of such Liability and (B) unless such lack of notice is the cause of the Vendor being unable to adequately and reasonably defend such Liability, (ii) gives the Vendor the opportunity and authority to assume the defense of and settle such Liability, subject to the provisions set forth belowof the next two sentences, and (iii) furnishes to the Vendor all such reasonable information and assistance available to the Owner (or other IndemnitiesIndemnitees) as may be reasonably requested by the Vendor and necessary for the defense against such Liability. The Vendor will assume on behalf of the Indemnitee and conduct with due diligence and in good faith the defense of such Liability with counsel (including in-house counsel) reasonably satisfactory to the Indemnitee; provided that the Indemnitee will have the right -------- ---- to be represented therein by advisory counsel of its own selection and at its own expense. If the Indemnitee will have reasonably concluded that there may be legal defenses available to it which are different from or additional to, or inconsistent with, those available to the Vendor, the Indemnitee will have the right to select separate counsel reasonably satisfactory to the Vendor to participate in the defense of such action on its own behalf at such Indemniteethe Vendor's expense. In the event the Vendor fails, after written demand by such Indemnitee, fails to defend any Liability as to which an indemnity should might be provided under subsection 9.1(a)herein, then the Indemnitee may, at the Vendor's expense, contest or settle such matter without the Vendor's consent. All payments, losses, damages and reasonable costs and expenses incurred in connection with such contest, payment or settlement controlled by such Indemnitee will be to the Vendor's accountaccount and may be deducted from any amounts due to the Vendor. The Vendor will not settle any such Liability without the consent of the Indemnitee, which consent will not be unreasonably withheld. This indemnity is in lieu of all other obligations of the Vendor, expressed or implied, in law or in equity, to indemnify the Indemnitees (except those pursuant to Section 14 or any other indemnity obligations expressly Vendor indemnitees set forth in this AgreementContract). (c) EXCEPT AS EXPRESSLY SET FORTH IN SUBSECTIONS 3.7, 3.8 AND 3.10 OF THIS AGREEMENT, THE VENDOR MAKES NO WARRANTIES AS TO PRODUCTS, SOFTWARE, TECHNOLOGY, MATERIALS, SERVICES, INFORMATION OR OTHER ITEMS IT FURNISHES TO THE OWNER, AGENTS OR PURCHASERS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT SUCH ITEMS ARE FREE FROM THE RIGHTFUL CLAIM OF ANY THIRD PARTY, BY WAY OF INFRINGEMENT OR THE LIKE. (d) EXCEPT AS PROVIDED IN SUBSECTIONS 3.2(c), 4.2, 7.1, 7.4 AND 9.2 HEREOF NEITHER PARTY WILL BE LIABLE TO THE OTHER (ITS AGENTS OR, IN THE CASE OF THE VENDOR, THE PURCHASERS) FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OR ANY OTHER INDIRECT LOSSES OR DAMAGES ARISING OUT OF THIS AGREEMENT, THE DELIVERY OR THE FAILURE TO DELIVER ANY OF THE PRODUCTS OR ANY COMPONENT THEREOF, ANY BREACH OF THIS AGREEMENT, THE FAILURE OF THE PRODUCTS TO PERFORM AS WARRANTED OR OTHERWISE OR ANY RESULTING OBLIGATION, OR THE USE OR INABILITY TO USE OF ANY PRODUCTS DELIVERED PURSUANT TO THIS AGREEMENT, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, FOR TORT, OR ANY OTHER CAUSE OF ACTION. EXCEPT AS PROVIDED IN SUBSECTIONS 3.2(c), 4.2, 7.1, 7.4 AND 9.2 HEREOF IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER (ITS AGENTS OR, IN THE CASE OF THE VENDOR, THE PURCHASERS) FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGE OR LOSS OF ANY NATURE WHICH MAY ARISE IN CONNECTION WITH THE USE, DISTRIBUTION, INSTALLATION, REMOVAL, MAINTENANCE OR SUPPORT OF PRODUCTS AND/OR SOFTWARE (SEPARATELY OR IN COMBINATION WITH EACH OTHER OR WITH OTHER PRODUCTS AND/OR SOFTWARE NOT PROVIDED BY VENDOR) BY OWNER, AGENTS AND ANY PURCHASER PURSUANT TO OR UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, PRODUCTS LIABILITY OR OTHERWISE, EVEN IF THE CLAIMANT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.