Common use of WARRANTY & INDEMNITY Clause in Contracts

WARRANTY & INDEMNITY. 9.1. CMI warrants (i) Consumer Package Units, when shipped to Cygnus, shall conform to the then in effect Specifications as determined under Section 3; (ii) Consumer Package Units, when shipped to Cygnus, shall conform with the information on the Q. A. Certificate of Conformance sheet provided for the particular shipment and not contain any Latent Defects or any other defects in materials or workmanship; (iii) Consumer Package Units shall have been manufactured, stored and shipped in conformance with all applicable Good Manufacturing Practices which are in force or hereinafter adopted by the FDA or any successor agency thereto; (iv) Consumer Package Units shall not have been adultered; and (v) title to all Consumer Package Units shall be free of any security interest or encumbrance. CMI makes no warranty, expressed or implied, with respect to material supplied by vendors under the Master Supply Agreements including the warranty of merchantability. 9.2. CMI agrees to defend Cygnus from, indemnify Cygnus and hold Cygnus harmless from any claim, demand, action, cause of action or suit (each a "Claim") related to or arising from any breach of the warranty set forth in Section 9.1, negligence on the part of CMI or defect in Consumer Package Units supplied by CMI. Provided, however as an exception to the foregoing right to defense and indemnity will be any claim, action or cause of action arising from a defect in a Consumer Package Unit, where such Consumer Package Unit, as supplied, was in full conformance with the warranty set forth in Section 9. 1. CMI also agrees to defend Cygnus from, indemnify Cygnus and hold Cygnus harmless from any Claim arising out of or resulting from any injury to any person or damage to any property caused by the Supply Specific Equipment as a result of the testing , installation, insufficiency of any warnings thereon or of CMI's improper use of the Equipment. In the event Cygnus is served or is otherwise notified of any Claim under this Section 9.2, it shall notify CMI thereof and tender its defense to CMI who shall promptly undertake such defense with counsel mutually acceptable to both parties. Either party receiving an offer of settlement shall communicate such offer as soon as reasonably practicable to the other. In the event Cygnus enters into a settlement, without the prior consent of CMI, it will be deemed to have waived its right under this Section to be indemnified from any amounts it becomes obligated to pay under the terms of the settlement agreement.

WARRANTY & INDEMNITY. 9.1Proprietor warrants and represents that each Work in no way violates any existing copyright, either in whole or in part, and that it contains no matter which, if published, will be libelous. CMI warrants Proprietor shall defend and indemnify Publisher from all damages, costs and expenses (iincluding reasonable attorneys fees) Consumer Package Unitswhich it may incur as a result of a breach of the above warranties and representations. Notwithstanding the foregoing, when shipped to Cygnus, Proprietor shall conform not be liable for any claim based on material inserted in or added to the then in effect Specifications as determined under Section 3; CBT Materials by Publisher, or edited out of a Work by Publisher, whether with or without the permission of Proprietor. Publisher warrants and represents that the CBT Materials (ii) Consumer Package Units, when shipped to Cygnus, shall conform with the information on the Q. A. Certificate of Conformance sheet provided except for the particular shipment and not contain Work associated with such CBT Materials) will in no way violate any Latent Defects third party copyright, patent, process, idea, method, device or any other defects in materials or workmanship; (iii) Consumer Package Units shall have been manufactured, stored and shipped in conformance with all applicable Good Manufacturing Practices which are in force or hereinafter adopted by the FDA or any successor agency thereto; (iv) Consumer Package Units shall not have been adultered; and (v) title to all Consumer Package Units shall be free right of any security interest or encumbrancethird party. CMI makes no warrantyPublisher shall indemnify Proprietor for all damages, expressed or impliedcosts and expenses (including reasonable attorneys fees) which it may incur as a result of a breach of these warranties and representations, with respect to material supplied by vendors under the Master Supply Agreements including the warranty of merchantability. 9.2. CMI agrees to defend Cygnus from, indemnify Cygnus and hold Cygnus harmless from as well as any claim, demandsuit, actionloss or damage arising in connection with the manufacture, cause of action distribution, advertisement or suit (each a "Claim") related to or arising from any breach sale of the warranty set forth in Section 9.1, negligence on the part of CMI or defect in Consumer Package Units supplied by CMI. Provided, however as an exception to the foregoing right to defense and indemnity will be any claim, action or cause of action CBT Materials (except for those arising from a defect in a Consumer Package Unit, where such Consumer Package Unit, as supplied, was in full conformance with the warranty set forth in Section 9. 1. CMI also agrees to defend Cygnus from, indemnify Cygnus and hold Cygnus harmless from any Claim arising out of or resulting from any injury to any person or damage to any property caused by the Supply Specific Equipment solely as a result of the testing Work) or any alleged defect in the CBT Materials (other than a defect in the Work). With respect to any suit, installationclaim, insufficiency demand or action against Proprietor for which Proprietor is indemnified by Publisher pursuant to this Paragraph ("Indemnified Claim"), Publisher will defend such Indemnified Claim at its own expense. However, such defense, and Publisher's indemnity obligations hereunder are subject to the following conditions: (i) that Publisher be notified promptly in writing by Proprietor of any warnings thereon notice of such Indemnified Claim; and (ii) that Publisher will have sole control of such defense and all negotiations for any settlement or of CMI's improper use compromise, on the conditions that Proprietor may participate at its expense in any defense and that no settlement shall impose any obligations upon Proprietor without its prior written consent. In no event shall either party be liable for any special, indirect, consequential or exemplary damages even if such party has been advised of the Equipmentpossibility thereof, including but not limited to lost profits, lost business revenue, or failure to realize expected savings. In the event Cygnus is served or is otherwise notified The foregoing provisions shall apply in respect of any Claim under this Section 9.2claim, it shall notify CMI thereof and tender its defense to CMI who shall promptly undertake such defense with counsel mutually acceptable to both parties. Either demand or action by a party receiving an offer of settlement shall communicate such offer as soon as reasonably practicable to the other. In the event Cygnus enters into a settlement, without the prior consent of CMI, it will be deemed to have waived its right under this Section to be indemnified from any amounts it becomes obligated to pay under the terms irrespective of the settlement agreementnature of the cause of action underlying the same, including but not limited to breach of contract or tort including negligence or misrepresentation, except that the foregoing limitation of liability shall not apply to claims for infringement of the proprietary rights if third parties.

WARRANTY & INDEMNITY. 9.1. CMI 17.1 Preview Travel warrants that it owns, or has obtained the right to distribute and make available as specified in this Agreement, its online reservations service and any and all content provided to Excite or made available to third parties in connection with this Agreement. 17.2 Preview Travel will indemnify, defend and hold harmless Excite, its affiliates, officers, directors, employees, consultants and agents from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees) arising from: (i) Consumer Package Unitsthe breach of any warranty, when shipped to Cygnus, shall conform to the then representation or covenant in effect Specifications as determined under Section 3; this Agreement; (ii) Consumer Package Unitsany claim that Preview Travel's online reservations service or content infringes or violates any third party's copyright, when shipped to Cygnuspatent, shall conform with the information on the Q. A. Certificate trade secret, trademark, right of Conformance sheet provided for the particular shipment and not contain publicity or right of privacy or contains any Latent Defects or any other defects in materials or workmanshipdefamatory content; or (iii) Consumer Package Units shall have been manufactured, stored and shipped in conformance with all applicable Good Manufacturing Practices which are in force or hereinafter adopted by any claim arising from content displayed on the FDA or any successor agency thereto; Preview Travel Sites (iv) Consumer Package Units shall not have been adultered; and (v) title to all Consumer Package Units shall be free other than Excite's). Excite will promptly notify Preview Travel of any security interest and all such claims and will reasonably cooperate with Preview Travel with the defense and/or settlement thereof; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or encumbrance. CMI makes no prejudices or detrimentally impacts Excite in any way and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement shall require Excite's written consent (not to be unreasonably withheld or delayed) and Excite may have its own counsel in attendance at its own expense at all proceedings and substantive negotiations relating to such claim. 17.3 Excite warrants that it owns, or has obtained the right to distribute and make available as specified in this Agreement, any and all content provided to Preview Travel or made available to third parties in connection with this Agreement. 17.4 Excite will indemnify, defend and hold harmless Preview Travel, its affiliates, officers, directors, employees, consultants and agents from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees) arising from: (i) the breach of any warranty, expressed representation or impliedcovenant in this Agreement; (ii) any claim that Excite's content infringes or violates any third party's copyright, patent, trade secret, trademark, right of publicity or right of privacy or contains any defamatory content; or (iii) any claim arising from content displayed on the Excite Network or Broadcast Pages (other than Preview Travel's). Preview Travel will promptly notify Excite of any and all such claims and will reasonably cooperate with respect Excite with the defense and/or settlement thereof; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to material supplied by vendors under the Master Supply Agreements including the warranty of merchantabilityor prejudices or detrimentally impacts Preview Travel in any way and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement shall require Preview Travel's written consent (not to be unreasonably withheld or delayed) and Preview Travel may have its own counsel in attendance at its own expense at all proceedings and substantive negotiations relating to such claim. 9.2. CMI agrees to defend Cygnus from17.5 EXCEPT AS SPECIFIED IN THIS AGREEMENT, indemnify Cygnus and hold Cygnus harmless from any claimNEITHER PARTY MAKES ANY WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, demand, action, cause of action or suit (each a "Claim") related to or arising from any breach of the warranty set forth in Section 9.1, negligence on the part of CMI or defect in Consumer Package Units supplied by CMI. Provided, however as an exception to the foregoing right to defense and indemnity will be any claim, action or cause of action arising from a defect in a Consumer Package Unit, where such Consumer Package Unit, as supplied, was in full conformance with the warranty set forth in Section 9INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER. 1. CMI also agrees to defend Cygnus from, indemnify Cygnus and hold Cygnus harmless from any Claim arising out of or resulting from any injury to any person or damage to any property caused by the Supply Specific Equipment as a result of the testing , installation, insufficiency of any warnings thereon or of CMI's improper use of the Equipment. In the event Cygnus is served or is otherwise notified of any Claim under this Section 9.2, it shall notify CMI thereof and tender its defense to CMI who shall promptly undertake such defense with counsel mutually acceptable to both parties. Either party receiving an offer of settlement shall communicate such offer as soon as reasonably practicable to the other. In the event Cygnus enters into a settlement, without the prior consent of CMI, it will be deemed to have waived its right under this Section to be indemnified from any amounts it becomes obligated to pay under the terms of the settlement agreement.

WARRANTY & INDEMNITY. 9.1. CMI Each party to this Agreement represents and warrants to the other party that (i) Consumer Package Unitssuch party has all necessary right, when shipped power and authority to Cygnusenter into this Agreement and to perform the acts required of it hereunder, shall conform to the then in effect Specifications as determined under Section 3; (ii) Consumer Package Unitsthe entry into this Agreement by such party, when shipped to Cygnusand the performance by such party of its obligations and duties hereunder, shall conform with the information on the Q. A. Certificate do not and will not violate any agreement of Conformance sheet provided for the particular shipment such party or by which such party is bound, and not contain any Latent Defects or any other defects in materials or workmanship; (iii) Consumer Package Units shall have been manufacturedany materials provided hereunder to the other do not violate any third party's intellectual property rights, stored including copyright, trademark, or patent rights. Company represents and shipped in conformance with all applicable Good Manufacturing Practices which are in force warrants to Red Hat that each Promotion and any Company Site accessible through any hypertext link included within Promotion or hereinafter adopted by the FDA an Company Link (i) does not infringe any intellectual property, publicity or privacy rights of any successor agency thereto; third party, (ii) is not defamatory, (iii) is not lewd, pornographic or obscene, (iv) Consumer Package Units shall is in material compliance with all (and does not have been adultered; violate any) applicable laws, and (v) title does not contain any virus, worm, "trojan horse ", time bomb or similar contaminating or destructive feature. Company agrees to indemnify, defend and hold harmless Red Hat and its affiliates, and their respective officers, agents and employees, from and against any and all Consumer Package Units shall be free loss, liability and expense (including reasonable attorneys' fees) suffered or incurred by reason of any security interest claims, proceedings or encumbrance. CMI makes no warranty, expressed or implied, with respect to material supplied by vendors under the Master Supply Agreements including the warranty of merchantability. 9.2. CMI agrees to defend Cygnus from, indemnify Cygnus and hold Cygnus harmless from any claim, demand, action, cause of action or suit (each a "Claim") related to suits based on or arising from out of (i) any breach of the warranty set forth in Section 9.1, negligence on foregoing representations and warranties; or (ii) the part of CMI contents or defect in Consumer Package Units supplied by CMI. Provided, however as an exception to the foregoing right to defense and indemnity will be any claim, action or cause of action arising from a defect in a Consumer Package Unit, where such Consumer Package Unit, as supplied, was in full conformance with the warranty set forth in Section 9. 1. CMI also agrees to defend Cygnus from, indemnify Cygnus and hold Cygnus harmless from any Claim arising out of or resulting from any injury to any person or damage to any property caused by the Supply Specific Equipment as a result of the testing , installation, insufficiency subject matter of any warnings thereon Company Materials, Promotions or other data provided by Company to Red Hat, including without limitation claims for defamation, violation of CMI's improper use rights of the Equipmentpublicity and/or privacy, copyright infringement, and trademark infringement. In the event Cygnus is served or is otherwise notified of any Claim under this Section 9.2RED HAT REPRESENTS AND WARRANTS THAT IT WILL USE COMMERCIALLY REASONABLE EFFORTS TO KEEP THE RED HAT SITE ON LINE FOR THE TERM OF THIS AGREEMENT. TO THE EXTENT THAT THE RED HAT SITE (OR ANY PART THEREOF) IS NOT ON-LINE FOR THE FULL TERM OF THIS AGREEMENT (FOR WHATEVER REASON, it shall notify CMI thereof and tender its defense to CMI who shall promptly undertake such defense with counsel mutually acceptable to both parties. Either party receiving an offer of settlement shall communicate such offer as soon as reasonably practicable to the other. In the event Cygnus enters into a settlementINCLUDING REASONS OF FORCE MAJEURE), without the prior consent of CMITHIS AGREEMENT SHALL BE EXTENDED FOR SUCH PERIOD OF TIME AS IS EQUAL TO THE AMOUNT OF TIME THAT SUCH SITES WERE NOT FULLY ON-LINE; PROVIDED, it will be deemed to have waived its right under this Section to be indemnified from any amounts it becomes obligated to pay under the terms of the settlement agreementHOWEVER, AN AGGREGATE UP-TIME RATE OF NINETY-FIVE PERCENT (95%) OR BETTER DURING THE TERM SHALL BE DEEMED BEING ON-LINE FOR THE FULL TERM.] EXCEPT AS EXPRESSLY SET FORTH HEREIN (including Exhibit A), EACH PARTY ACKNOWLEDGES AND AGREES THAT THE OTHER HAS NOT MADE ANY REPRESENTATIONS, WARRANTIES OR AGREEMENTS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.