Common use of Indemnification by STRATEC Clause in Contracts

Indemnification by STRATEC. 1. STRATEC hereby agrees to defend, indemnify, and hold harmless Gen-Probe and its Affiliates and their officers, directors, employees and agents from all expenses, costs, legal fees, and damages arising out of any claim which results in physical damage to property and/or personal injury (including death) due to any grossly negligent act or omission of STRATEC and, if applicable, its suppliers. 2. To the extent not otherwise provided for and addressed by the Development Agreement, STRATEC hereby agrees to defend, indemnify, and hold harmless Gen-Probe and its Affiliates and their officers, directors, employees and agents from all expenses, costs, legal fees, and damages arising out of any third party claim of patent infringement where the relevant patent was issued prior to completion of development of the Panther Validation Instrument, but the use of the patented technology in the Panther was not disclosed by STRATEC to Gen-Probe. In the event of any third party claim subject to this indemnity obligation, the parties shall meet and confer in good faith and in discuss the claim and potential responses (including implementation of alternative technologies to avoid the claim of infringement). Neither party shall respond to the third party, or take any other legal action beyond the discussions between the parties themselves, for a period of ninety days from receipt, in order to facilitate the discussion of potential responses. 3. STRATEC hereby agrees to defend, indemnify, and hold harmless Gen-Probe and its Affiliates from all additional or incremental expenses, costs and damages arising out of or related to the failure of production instruments manufactured by or on behalf of STRATEC to comply with the Reliability Requirements. For the sake of clarity and the avoidance of doubt, the parties agree that STRATEC’s indemnity obligation shall only include instrument and component failures resulting from instrument hardware and software design and/or manufacturing, and that STRATEC’s indemnity obligation shall not include instrument failures resulting from user error, poor field service, or other causes beyond STRATEC’s direct control. “User error” shall not include failures resulting from operator actions to the extent such failures (A) were reasonably foreseeable and (B) could have been reasonably prevented by software or hardware design (in a manner consistent with (i) the Instrument’s intended use and (ii) industry practices in effect prior to STRATEC’s Release for Manufacturing); provided that STRATEC’s indemnity obligation shall not include any such event that occurs only one time. In no event shall STRATEC be liable to indemnify Gen-Probe for any consequential, punitive, exemplary or special damages, including, without limitation, lost profits as a result of deficiencies in instrument reliability. Gen-Probe will comply with the training and service provisions of the Supply Agreement and will provide STRATEC with prompt written notice if Gen-Probe believes that instrument reliability does not meet the Reliability Requirements.

Indemnification by STRATEC. 1. STRATEC hereby agrees to defend, indemnify, and hold harmless Gen-Probe and its Affiliates and their officers, directors, employees and agents from all expenses, costs, legal fees, and damages arising out of any claim which results in physical damage to property and/or personal injury (including death) due to any grossly negligent act or omission of STRATEC and, if applicable, its suppliers. 2. To the extent not otherwise provided for and addressed by the Development Agreement, STRATEC hereby agrees to defend, indemnify, and hold harmless Gen-Probe and its Affiliates and their officers, directors, employees and agents from all expenses, costs, legal fees, and damages arising out of any third party claim of patent infringement where the relevant patent was issued prior to completion of development of the Panther Validation Instrument, but the use of the patented technology in the Panther was not disclosed by STRATEC to Gen-Probe. In the event of any third party claim subject to this indemnity obligation, the parties shall meet and confer in good faith and in discuss the claim and potential responses (including implementation of alternative technologies to avoid the claim of infringement). Neither party shall respond to the third party, or take any other legal action beyond the discussions between the parties themselves, for a period of ninety days from receipt, in order to facilitate the discussion of potential responses. 3. STRATEC hereby agrees to defend, indemnify, and hold harmless Gen-Probe and its Affiliates from all additional or incremental expenses, costs and damages arising out of or related to the failure of production instruments manufactured by or on behalf of STRATEC to comply with the Reliability Requirements. For the sake of clarity and the avoidance of doubt, the parties agree that STRATEC’s indemnity obligation shall only include instrument and component failures resulting from instrument hardware and software design and/or manufacturing, and that STRATEC’s indemnity obligation shall not include instrument failures resulting from user error, poor field service, or other causes beyond STRATEC’s direct control. “User error” shall not include failures resulting from operator actions to the extent such failures (A) were reasonably foreseeable and (B) could have been reasonably prevented by software or hardware design (in a manner consistent with (i) the Instrument’s intended use and (ii) industry practices in effect prior to STRATEC’s Release for Manufacturing); provided that STRATEC’s indemnity obligation shall not include any such event that occurs only one time. In no event shall STRATEC be liable to indemnify Gen-Probe for any consequential, punitive, exemplary or special damages, including, without limitation, lost profits as a result of deficiencies in instrument reliability. Gen-Probe will comply with the training and service provisions of the Supply Agreement and will provide STRATEC with prompt written notice if Gen-Probe believes that instrument reliability does not meet the Reliability Requirements.