1楼 derekzheng86
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|  发帖时间 - 2007/11/17 11:09:26
| 15. INDEMNIFICATION
15.1 Indemnity. OEM shall indemnify, defend and hold Company and Company’s parent, affiliates, subsidiaries, related entities, officers, directors, employees, contractors and customers harmless from and against any and all liabilities, damages, costs and expenses, including attorneys’ fees (collectively “Losses”), incurred by Company and the indemnified parties as a result of any such claim, suit, action, or proceedings arising from (a) any actual or alleged infringement or violation of any third party Intellectual Property, Intellectual Property Rights or other rights by OEM, OEM’s Marks, OEM’s Intellectual Property or OEM Products; (b) the failure are alleged failure of OEM Products to comply with Specifications or with any express or implied warranties of OEM; (c) the violation or alleged violation of any law, statute or governmental ordinance due or related to the manufacture, possession, use or sale of any OEM Products (including without limitation, the violation or alleged violation of RoHS in all applicable jurisdictions; (d) any actual or alleged unfair business practices, false advertising, misrepresentation or fraud resulting from OEM Product Specifications provided by OEM and disclosed by Company; (e) any actual or alleged personal injury or actual or alleged property damage arising from or in relations to the OEM’s Products; and (f) any breach or alleged breach of an OEM representation or warranty or any other provision of this Agreement by OEM. This Section will not be construed to limit or exclude any other claims or remedies that Company or its respective affiliates, successors and assigns (and its and their respective directors, employees and agents) may assert.
15.2 Cooperation. Company agrees to provide OEM: (i) prompt notice of the existence of any claim of which Company is aware; and (ii) reasonable assistance in the defense and settlement of any claim at OEM’s request and expense. Company’s express written consent shall be required in connection with any settlement that includes terms beyond payment of money by OEM, and Company shall have the option, but not the obligation, of assuming and controlling the defense and settlement of any such claim at OEM’s cost and expense, if, in Company’s sole discretion, Company’s interest would be prejudiced otherwise.
16. LIMITATION OF LIABILITY
16.1 Limitation of Liability. EXCEPT FOR (I) WILLFUL OR GROSSLY NEGLIGENT BREACHES OF ANY OBLIGATIONS UNDER THIS AGREEMENT, (II) BREACHES OF ANY CONFIDENTIALITY OBLIGATIONS (III) THE FULFILLMENT OF ANY INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT AND (IV) AS OTHERWISE PROVIDED IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY THIRD PARTY CLAIMING THROUGH OR UNDER SUCH PARTY, FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
17. INSURANCE
17.1 During the Term, OEM shall obtain and maintain, at its sole expense, the following insurance coverage:
(a) Comprehensive “all-risk” insurance, to be provided in amounts not less than $3 million per occurrence and $5 million annual aggregate, against loss or damage by fire or any other casualty (including business interruptions, OEM outages and acts of terrorists) to the OEM Product inventory, OEM facilities or facilities controlled by OEM, assets and operations of OEM;
(b) General liability insurance, to be provided in amounts not less than $3 million per occurrence and $5 million annual aggregate, for (i) defective product, false advertising, or trademark or service mark, patent or copyright infringement claims alleged or arising from the market and resale of the Products and/or End-User use of the Products, (ii) the Company’s use or reliance on the Product Information provided to Company by OEM pursuant to this Agreement and (iii) OEM’s performance of and obligations under this Agreement.
OEM shall provide a current Certificate of Insurance satisfactory to Company reflecting the types of coverage and limits required hereunder, and shall name Company as an additional insured in the aforementioned required insurance policy. Except as expressly provided in this Agreement, these insurance requirements shall not limit OEM’s liability to Company in the event insurance recoveries/proceeds are less than OEM’s liability to Company.
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