WOULD
HAVE BEEN AVOIDED IF THE VTAL WORKSTATION WERE NOT SO MODIFIED.
10.5 PROCEDURE.
THE PARTY SEEKING INDEMNIFICATION, ("INDEMNITEE") SHALL:
(A) PROMPTLY NOTIFY THE INDEMNIFYING PARTY ("INDEMNITOR") IN WRITING OF ANY
CLAIM BROUGHT BY A THIRD PARTY FOR WHICH IT IS SEEKING INDEMNIFICATION;
(B) PROVIDE INDEMNITOR WITH SOLE CONTROL OF THE DEFENSE AND/OR SETTLEMENT
THEREOF; AND (C) PROVIDE INDEMNITOR, AT INDEMNITOR'S REQUEST AND EXPENSE, WITH
REASONABLE ASSISTANCE AND FULL INFORMATION WITH RESPECT THERETO.
INDEMNITEE
SHALL HAVE THE RIGHT TO PARTICIPATE, AT ITS OWN EXPENSE, WITH COUNSEL OF ITS OWN
CHOOSING IN THE DEFENSE AND/OR SETTLEMENT OF SUCH CLAIM, SUIT OR PROCEEDING.
THE INDEMNIFICATION OBLIGATIONS OF THE PARTIES IN THIS SECTION 10 SHALL NOT
APPLY TO AMOUNTS PAID IN SETTLEMENT OF ANY CLAIM, SUIT OR PROCEEDING IF SUCH
SETTLEMENT IS EFFECTED WITHOUT THE CONSENT OF INDEMNITOR, WHICH CONSENT SHALL
NOT BE UNREASONABLY WITHHELD OR DELAYED.
10.6 ADDITIONAL REMEDY.
IF ANY PORTION OF EITHER PARTY'S PRODUCTS CONTEMPLATED
BY THIS AGREEMENT (THE VTAL WORKSTATION AND THE R2 PRODUCT) IS HELD, OR IN SUCH
PARTY'S REASONABLE OPINION IS LIKELY TO BE HELD, TO INFRINGE OR MISAPPROPRIATE A
THIRD PARTY'S INTELLECTUAL PROPERTY RIGHT, THEN SUCH PARTY MAY AT ITS SOLE
OPTION AND EXPENSE:
(A) PROCURE FOR THE OTHER PARTY AND/OR THE CUSTOMER, AS
APPROPRIATE, THE RIGHT TO CONTINUE USING SUCH PRODUCT; (B) REPLACE THE PRODUCT
WITH A
NON-INFRINGING, FUNCTIONALLY EQUIVALENT PRODUCT; OR (C) IF NEITHER OF THE
FOREGOING IS REASONABLY PRACTICABLE, AND TO THE EXTENT THE INFRINGING COMPONENT
RESTRICTS A CUSTOMER'S ABILITY TO CONTINUE USE OF A PRODUCT, TERMINATE THIS
AGREEMENT AND REFUND TO CUSTOMER AND/OR THE OTHER PARTY, AS APPROPRIATE, THE
AMOUNTS PAID FOR THE PRODUCT, OR THE INFRINGING COMPONENT (BY WAY OF
NON-LIMITING EXAMPLE, THE LUNG NODULE CAD APPLICATION,) AS APPLICABLE, LESS A
REASONABLE AMOUNT FOR PRIOR USE.
10.7 ENTIRE LIABILITY.
THE FOREGOING PROVISIONS OF THIS SECTION 10 STATE THE
ENTIRE LIABILITY AND OBLIGATIONS OF EACH PARTY, AND EACH PARTY'S EXCLUSIVE
REMEDY, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF OR
MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHT BY THE LUNG NODULE CAD
APPLICATION, THE VTAL WORKSTATION, OR THE R2 PRODUCT.
10.8 INSURANCE.
EACH PARTY SHALL USE COMMERCIALLY REASONABLE EFFORTS TO ADD THE
OTHER PARTY TO ITS EXISTING INSURANCE POLICIES AS AN ADDITIONAL INSURED;
PROVIDED THAT SUCH ADDITION WOULD NOT MATERIALLY ALTER THE OTHER TERMS AND
CONDITIONS OF SUCH EXISTING INSURANCE POLICY.
11.
WARRANTY
11.1 LIMITED WARRANTY.
R2 REPRESENTS AND WARRANTS TO VTAL THAT THE R2 PRODUCT
WILL CONFORM IN ALL MATERIAL RESPECTS TO THE SPECIFICATIONS DURING THE WARRANTY
PERIOD.
11.2 WARRANTY LIMITATIONS.
THE FOREGOING WARRANTY DOES NOT EXTEND TO PROBLEMS
OR ERRORS IN THE R2 PRODUCT THAT RESULT FROM: (A) CUSTOMER'S FAILURE TO
IMPLEMENT ALL UPDATES WHICH ARE PROVIDED BY R2, IF ANY; (B) ANY USE OF THE R2
PRODUCT IN A MANNER FOR WHICH IT WAS NOT DESIGNED OR AS NOT AUTHORIZED UNDER
THIS AGREEMENT OR UNDER THE CUSTOMER'S LICENSE; (C) NEGLIGENCE ON THE PART OF
VTAL OR CUSTOMER, OR THEIR EMPLOYEES, CONTRACTORS, OR CONSULTANTS; OR (D) ANY
USE OF