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ATVI » Topics » (a) a breach of any of the provisions, representations or warranties undertaken b LICENSEE in this Agreement,This excerpt taken from the ATVI 10-K filed Jun 9, 2005. (a) a breach of any of the provisions, representations or warranties undertaken b LICENSEE in this Agreement,(b) any infringement of a third party’s Proprietary Rights as a result of the design, development, advertising, marketing, sale or use of the Licensed Products or the Marketing Materials,(c) any claims alleging a defect, failure to warn, bodily injury (including death) or other personal or property damage arising out of, or in connection with, the design, development, advertising, marketing, sale or use of any of-the Licensed Products, and(d) any federal, state or foreign civil or criminal actions relating to the design, development, advertising, marketing, sale or use of the Licensed Products or the Marketing Materials.NOA and LICENSEE shall give prompt Notice to the other of any indemnified claim under this Section 10.1. With respect to any third party claim subject to this indemnity clause, LICENSEE, as indemnitor, shall have the right to select counsel and to control the defense and/or settlement thereof. NOA may, at its own expense, participate in such action or proceeding with counsel of its own choice. LICENSEE shall not enter into any settlement of any such claim in which (i) NOA or Nintendo Co., Ltd. has been named as a party, or (ii) claims relating to the Intellectual Property Rights have been asserted, without NOA’s prior written consent. NOA shall provide reasonable assistance to LICENSEE in its defense of any such claim.
10.2 LICENSEE’s Insurance. LICENSEE shall, at its own expense, obtain a commercial general liability insurance policy (including coverage for advertising injury and product liability claims) from an insurance company rated at least B+ by A.M. Best. Such policy of insurance shall be in an amount of not less than [***] on a per occurrence basis (not claims made) and shall provide for adequate protection against any suits, claims, loss or damage arising
[***] The portions of this document marked with three asterisks represent confidential portions omitted and filed separately with the Securities and Exchange Commission.
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out of or relating to the Licensed Products. Such policy shall name NOA and Nintendo Co., Ltd. as additional insureds and shall specify that it may not be canceled without thirty (30) days’ prior written Notice to NOA. A Certificate of Insurance shall be provided to NOA’s Licensing Department not later than the date of the initial order of Licensed Products under this Agreement. If LICENSEE fails to provide NOA’s Licensing Department with period of two (2) years thereafter, NOA, in its sole discretion may 1) terminate this Agreement in accordance with Section 13.2 herein; or 2) secure comparable insurance for the benefit of NOA and Nintendo Co., Ltd. only, and not for Licensee, at LICENSEE’s expense.10.3 Suspension of Production. In the event NOA deems itself at risk with respect to any claim, action or proceeding under this Section 10, NOA may, at its sole option, suspend production, delivery or order acceptance for any Licensed Products, in whole or in part, pending resolution of such claim, action or proceeding. |
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