THE ARTANN PATENTS OR THAT
ARTANN HAS PROVIDED TO PROUROCARE ALL ARTANN TRADE SECRETS AND/OR ARTANN
TECHNOLOGY AND ANY WARRANTIES THAT MAY ARISE DUE TO COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE.
ARTANN WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST
PROFITS, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR COSTS OF PROCUREMENT OF
SUBSTITUTE PRODUCT OR SERVICES, OR OTHERWISE, HOWEVER CAUSED AND UNDER ANY
THEORY OF LIABILITY AND WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
9
4.3
INDEMNITY.
(A)
PURPOSELY LEFT BLANK.
(B)
SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PROUROCARE
SHALL INDEMNIFY AND HOLD ARTANN, AND EACH OF ITS OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS OR CONSULTANTS HARMLESS FROM AND AGAINST ANY THIRD-PARTY LIABILITY,
LOSSES, DAMAGES, CLAIMS, COSTS AND EXPENSES (INCLUDING REASONABLE FEES OF
ATTORNEYS AND OTHER PROFESSIONALS AND COURT COSTS) (COLLECTIVELY "LIABILITIES")
ARISING OUT OF OR CONNECTED WITH (A) ANY BREACH OF THIS AGREEMENT BY PROUROCARE
OR (B) THE USE BY OR ADMINISTRATION OF THE PROUROCARE PRODUCT TO ANY PERSON THAT
ARISES OUT OF THE USE, MANUFACTURE, SALE, IMPORT OR OTHER EXPLOITATION OF A
PROUROCARE PRODUCT BY PROUROCARE OR A PROUROCARE SUBLICENSEE (EXCEPT TO THE
EXTENT SUCH LIABILITY RESULTED FROM ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
OF ARTANN IN THE DESIGN, SPECIFICATION OR MANUFACTURE OF THE PRODUCT).
ADDITIONALLY, PROUROCARE SHALL OBTAIN, MAINTAIN AND PROVIDE ARTANN WITH A COPY
OF
COMMERCIALLY REASONABLE PRODUCT LIABILITY INSURANCE, WITH SUCH INSURANCE
BEING EFFECTIVE AS OF A DATE NO LATER THAN THE DATE OF FIRST CLINICAL USE
INDEPENDENTLY DIRECTED BY PROUROCARE OR COMMERCIAL SALE OF PRODUCT, AND SHALL
HAVE ARTANN LISTED AS AN ADDITIONAL INSURED PARTY ON SUCH POLICY.
(C)
PURPOSELY LEFT BLANK.
(D)
AS A CONDITION TO PROUROCARE'S OBLIGATION TO INDEMNIFY, DEFEND AND
HOLD HARMLESS HEREUNDER AGAINST A CLAIM ARISING OUT OF A THIRD PARTY CLAIM,
ARTANN WILL (I) PROVIDE PROMPT WRITTEN NOTICE OF ANY CLAIM GIVING RISE TO ANY
LIABILITY AND (II) TENDER CONTROL OF THE DEFENSE AND SETTLEMENT OF ANY SUCH
CLAIM TO PROUROCARE.
ARTICLE 5
INFRINGEMENT AND INVENTIONS
5.1
PROSECUTION OF INFRINGEMENT OF ARTANN PATENTS, ARTANN TRADE
SECRETS AND ARTANN TECHNOLOGY BY THIRD PARTY.
(A)
EACH OF PROUROCARE AND ARTANN SHALL PROMPTLY NOTIFY THE OTHER IF
IT KNOWS OR HAS REASON TO BELIEVE THAT RIGHTS TO THE ARTANN PATENTS, ARTANN
TRADE SECRETS OR ARTANN TECHNOLOGY ARE BEING INFRINGED OR MISAPPROPRIATED BY A
THIRD PARTY OR THAT SUCH INFRINGEMENT OR MISAPPROPRIATION IS THREATENED.
(B)
PRIOR TO AND SUBSEQUENT TO THE EXPIRATION OF ONE HUNDRED TWENTY
(120) DAYS FROM THE DATE OF SUCH NOTICE, THE OBLIGATION OF PROUROCARE TO PAY
ROYALTIES OR OTHER FEES, IF ANY, UNDER THIS AGREEMENT, SHALL CONTINUE UNABATED.
IF ARTANN BRING SUIT AGAINST A THIRD PARTY INFRINGER, ARTANN SHALL BEAR ALL THE
EXPENSES OF ANY SUIT BROUGHT BY ARTANN AND SHALL RETAIN ALL DAMAGES OR OTHER
MONIES AWARDED OR RECEIVED IN SETTLEMENT OF SUCH SUIT.
PROUROCARE WILL
COOPERATE WITH ARTANN IN ANY SUCH SUIT AS REASONABLY