Form Apa - Asset Purchase Agreement Page 33
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and use reasonable efforts to vigorously defend against and respond thereto and make
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available to each other such personnel, witnesses, books, records, documents or other
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information within its control that are necessary or appropriate for such defense (except
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for trade secrets and such items which may not be made available pursuant to a Court
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Order); provided that, subject to Section 10.2(c), the Indemnifying Party shall reimburse
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the Indemnified Party for its out-of-pocket expenses incurred in connection therewith.
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(g)
Product and Warranty Liability.
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The provisions of this Section 10.2 shall cover, without limitation, all
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liabilities of any kind, nature or description relating, directly or indirectly, to product
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liability, litigation or claims against Buyer or Seller in connection with, arising out of, or
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relating to Purchased Products.
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(h)
Limitations.
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(i)
Neither Buyer nor Seller shall be liable to the other
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under this Section 10.2 for any Damages due pursuant to Section 10.2(a)(i) or
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Section 10.2(b)(i) exclusively, unless and until (i) each individual amount otherwise due
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the Indemnified Party exceeds $_______ (excluding legal fees and expenses), and (ii) the
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aggregate amount of all such Damages under this Agreement, the Transition Trademark
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License and the Intellectual Property Purchase and License Agreement otherwise due the
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Indemnified Party (excluding Damages incurred in any individual claim of less than
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$_________) exceeds an accumulated total of ____ percent (___%) of the Aggregate
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Amount, and thereafter the total amount of all such Damages in excess of $_______ per
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claim (excluding legal fees and expenses) actually incurred (excluding the first one
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percent of the Aggregate Amount) shall be indemnifiable as and to the extent herein
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provided.
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(ii)
Seller's aggregate liability under (I) Sections 10.2(a)
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and 10.3 of this Agreement, (II) Section 8 of the Transition Trademark License and (III)
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Section 5.2(a) of the Intellectual Property Purchase and License Agreement for all claims
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for Damages incurred by Buyer (and its Representatives and Affiliates) shall not in any
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event exceed an accumulated total of ____ percent (____%) of the Aggregate Amount.
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(iii)
Except for Buyer's indemnification obligations resulting
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from a breach of Buyer's covenants in Section 6, in no event shall any party be liable for
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any incidental, consequential, indirect or special losses or damages (including, without
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limitation, lost profits, lost revenues and loss of business), whether foreseeable or not,
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whether or not the party has been advised of the possibility of any such damages and
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whether or not the same are occasioned by any failure to perform or the breach of any
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representation, warranty, covenant or other obligation under this Agreement for any
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cause whatsoever.
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(i)
Indemnification Rights of Certain Persons.
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Buyer agrees that all rights of indemnification and contribution, if any,
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existing in favor of the present or former officers, directors, employees, fiduciaries and
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