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expert witness fees and court costs, (all of which are collectively referred to as "Claims") arising
<br /> out of any of the following:
<br /> A. Grantee's performance of Services and provision of the Deliverables, Grantee's
<br /> failure to perform under this Agreement and/or Grantee's breach of this Agreement.
<br /> B. Claims relating to bodily injury to or death of any person or damage to real
<br /> property and/or tangible or intangible personal property, incurred while Grantee is performing
<br /> Services and to the extent caused by the negligent or willful acts or omissions of Grantee, its
<br /> Employees, Permitted Subcontractors or agents in the performance of the Services hereunder.
<br /> C. Claims arising out of any disputes between Grantee and Grantee's employees
<br /> and/or Permitted Subcontractors, including without limitation, Employee Related Claims.
<br /> "Employee Related Claims" means any pending, threatened or future action, suit, arbitration,
<br /> inquiry, proceeding or investigation by or before a court, arbitrator, governmental or other
<br /> regulatory or administrative agency or commission, whether civil, criminal or other, and whether
<br /> known or unknown, fixed or contingent, or matured or unmatured at the Effective Date or at any
<br /> time before or after the Effective Date for any and all Claims, incurred in connection with the
<br /> Agreement that arise in connection with or relate to any of Grantee's or any of its Permitted
<br /> Subcontractor's employees or classification of employees, the terms or conditions of such
<br /> employment, any accident, illness, injury or other harm of any nature arising in connection with
<br /> or relating to such employment, or the termination of such employment.
<br /> D. Claims that any Services or Deliverables provided by Grantee hereunder infringe
<br /> upon any existing or future patent right, copyright, trade secret or other Intellectual Property
<br /> Right. Grantee will defend such Claim at its expense and will pay all costs and damages that may
<br /> be awarded against MIPH, its trustees, officers, employees and/or Affiliates incurred and
<br /> resulting therefrom. Grantee will not be obligated to indemnify MIPH hereunder, however, if
<br /> the claim of infringement is caused by MIPH's modification of such Deliverables. If any such
<br /> Deliverables are, or in either MIPH's or Grantee's opinion are likely to be, held to constitute an
<br /> infringing product, Grantee shall promptly at Grantee's option and at Grantee's sole cost and
<br /> expense either (a) procure the right for MIPH to continue using it, or(b) modify it so that it is
<br /> non-infringing, provided that such Deliverable as modified must be functionally equivalent and
<br /> perform and conform in all material respects to the specifications and requirements, or(c)
<br /> replace it with a non-infringing functionally equivalent that performs and conforms in all
<br /> material respects to the specifications and requirements. If none of the options in the preceding
<br /> sentence are reasonably available and/or practical after Grantee has exercised its best efforts to
<br /> implement said options, Grantee shall refund to MIPH all amounts paid by MIPH to Grantee
<br /> pertaining to such Deliverables under this Agreement, and Grantee shall remain liable for all
<br /> other damages and remedies available to MIPH which are expressly reserved.
<br /> VII. Warranties
<br /> Grantee warrants that (a) Grantee, its Employees and Permitted Subcontractors, if any,
<br /> shall have and maintain the requisite technical knowledge, skills, abilities, licenses and
<br /> qualifications to provide the Services and Deliverables, (b) Grantee shall comply with all
<br /> Compliance Check Grant Contract 2011-2012 5
<br /> Minnesota Institute of Public Health and New Brighton Department of Public Safety
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