By Zeltiq. Notwithstanding anything to the contrary herein, subject to Distributor’s obligations set forth below in Section 10(c) (“Indemnification Procedure”), Zeltiq hereby agrees to indemnify, defend and hold harmless Distributor from and against all third party claims, damages, losses, costs and expenses, including reasonable attorneys’ fees (“Claims”), arising out of or relating to injury, illness, or death of any person, or damage to any property, to the extent arising out of or resulting from (A) a material defect in, material malfunction of, or undocumented or insufficiently or incorrectly documented risks resulting from usage of, the Products in the form provided by Zeltiq and pursuant to their prescribed use and nonprescribed use (for so long as Distributor does not market the products for nonprescribed use) or (B) Zeltiq’s negligence or willful misconduct; or (C) any third party claim that Products, as supplied hereunder, infringe or misappropriate any third party patents; provided that Zeltiq will have no obligation under subsection (C) above for any such Claim that arises out of (i) the modification of the Products by any party other than Zeltiq, (ii) the combination of the Products with any other hardware, device, or software not supplied by Zeltiq where the Claim is directed at the combination, or (iii) infringement of patent claims covering completed equipment or any assembly, circuit, combination, method or process in which any of the Products may be used but not covering the Products standing alone. Zeltiq shall pay any damages, costs, and expenses finally awarded to a third party by a court or in a settlement agreed to by Zeltiq arising from such Claims. If the Products become, or in Zeltiq’s opinion are likely to become, the subject of any infringement claim, Zeltiq may, at its option and expense, either (x) procure for Distributor the right to continue using the Products; (y) replace or modify the Products so they become non-infringing; or (z) accept return of the Products and remove the infringing Products from Exhibit A, Section 2. The foregoing indemnification obligations are Distributor’s sole and exclusive remedy, and Zeltiq’s entire liability, for any claims of intellectual property infringement by the Products. ZELTIQ CONFIDENTIAL
By Zeltiq. Subject to Distributor’s obligations set forth below in Section 10(c) (“Indemnification Procedure”), Zeltiq will defend Distributor with respect to any claim, suit, or proceeding (each, a “Claim”) brought against Distributor by a third party to the extent that such Claim alleges that the Products infringe any patent in the Territory of which Zeltiq had actual knowledge on the date it first shipped the infringing Product or any copyright or trade secret belonging to such third party; provided that Zeltiq will have no obligation hereunder for any such Claim that arises out of
