AND EXPENSES
ATTRIBUTABLE TO CLAIMS BROUGHT BY A THIRD PARTY ALLEGING: (A) DECEPTIVE OR
MISLEADING ADVERTISING OR SALES, MARKETING OR PROMOTIONAL PRACTICES BY VITAL, OR
ITS SUBCONTRACTORS, OTHER THAN ANY MADE IN RELIANCE ON THE CONTENT OF THE
MATERIALS PROVIDED TO VITAL UNDER SECTION 2.4; (B) NEGLIGENCE OR MISCONDUCT BY
VITAL, OR ITS SUBCONTRACTORS, IN CONNECTION WITH THE MARKETING OR PROMOTION OF
THE R2 LUNG CAD PRODUCT; OR (C) A FAILURE BY VITAL TO COMPLY WITH APPLICABLE
LAW.
7.4 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 7 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.
7.5 ADDITIONAL REMEDY.
IF THE R2 LUNG CAD PRODUCT IS HELD, OR IN R2'S
REASONABLE OPINION IS LIKELY TO BE HELD, TO INFRINGE OR MISAPPROPRIATE A THIRD
PARTY'S INTELLECTUAL PROPERTY RIGHTS, THEN R2 MAY AT ITS SOLE OPTION AND
EXPENSE: (A) PROCURE FOR THE CUSTOMERS THE RIGHT TO CONTINUE USING THE R2 LUNG
CAD PRODUCT; (B) REPLACE THE R2 CAD PRODUCT WITH A NON-INFRINGING,
FUNCTIONALLY-EQUIVALENT PRODUCT; OR (C) IF NEITHER OF THE FOREGOING IS
REASONABLY PRACTICABLE, TERMINATE THE CUSTOMER AGREEMENT AND THIS AGREEMENT AND
REFUND TO CUSTOMER THE AMOUNTS PAID FOR THE R2 LUNG CAD PRODUCT, LESS A
REASONABLE AMOUNT FOR PRIOR USE.
7.6 ENTIRE LIABILITY.
THE FOREGOING PROVISIONS OF THIS SECTION 7 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 R2 LUNG CAD PRODUCT.
7.7 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.
8. OWNERSHIP
8.1 OWNERSHIP.
AS BETWEEN VITAL AND R2, R2 WILL OWN, AND HEREBY RETAINS, ALL
RIGHT, TITLE AND INTEREST IN AND TO THE R2 LUNG CAD PRODUCT, AND ANY
IMPROVEMENTS, ENHANCEMENTS, INTERFACE COMPONENTS, AND/OR DERIVATIVE WORKS
THEREOF, AND ALL INTELLECTUAL PROPERTY RIGHTS RELATING THERETO.
ANY AND ALL
REGISTRABLE AND PATENTABLE DESIGNS RELATING TO THE R2 LUNG CAD PRODUCT AND THE
RIGHT TO APPLY FOR PROTECTION THEREFORE SHALL BELONG EXCLUSIVELY TO R2.
9. WARRANTY
9.1 WARRANTY.
ALL PRODUCT WARRANTIES OFFERED BY R2 SHALL BE MADE DIRECTLY TO
THE CUSTOMERS.
9.2 DISCLAIMER OF WARRANTIES.
EXCEPT AS EXPRESSLY STATED IN SECTION