Common use of By Licensor Clause in Contracts

By Licensor. Licensor shall defend, indemnify and hold harmless the Licensee and the Representatives of Licensee from and against any and all Losses asserted against, incurred, sustained or suffered by Licensee and/or the Representatives of Licensee as a result of, arising out of or relating to a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property of any third party existing as of the License Effective Date (each a “Infringement Claim”); provided, however that Licensor shall have no obligation to Licensee under this section with respect to any Infringement Claim arising twenty four (24) months after the License Effective Date or to the extent arising from (i) a Licensee Improvement or any modifications to the Platform or any Licensor Intellectual Property made by or on behalf of Licensee or at Licensee’s request; (ii) Licensee’s breach of this Agreement, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such breach; (iii) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property in a manner not reasonably contemplated by Licensor, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property Licensee in connection with an Expanded Business, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use in the Expanded Business; (v) the combination of the Platform and Licensor Intellectual Property with any Licensee or third party software or other intellectual property, in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Platform or Licensor Intellectual Property so that it becomes non-infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property. This Section 4.1 is Licensor’s sole and exclusive remedy for any claim that the Platform or any Licensor Intellectual Property infringes or misappropriates the Intellectual Property of any third party and Licensor may not exercise any indemnity or similar monetary remedy under the Purchase Agreement.

By Licensor. Licensor shall defendrepresents, indemnify warrants and hold harmless covenants to Licensee that (a) it has the Licensee right and authority to enter into this Agreement and perform its obligations hereunder and this Agreement constitutes the Representatives legal, valid and binding obligation of Licensee Licensor enforceable in accordance with its terms, subject, however, to the effects of bankruptcy, insolvency, reorganization, moratorium and similar Laws from time to time in effect, as well as to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (b) it owns all right, title and against any interest in and all Losses asserted againstto the Patents and Know-How and has the full right and authority to grant the licenses set forth in Section 2 (Grant of License), incurred(c) there are no outstanding agreements, sustained assignments or suffered by Licensee and/or encumbrances inconsistent with the Representatives provisions of Licensee as a result of, arising out of said licenses and Licensor has the right to grant the licenses set forth in Section 2 without seeking the approval or relating to a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property consent of any third party existing party, (d) none of the Patents have been invalidated either wholly or partly by a court of law within the United States or abroad or by the United States Patent and Trademark Office or any of its foreign equivalents and there are no proceedings to do so as of the License Effective Date Date, (each a “Infringement Claim”); providede) to Licensor’s best knowledge, however that Licensor shall have no obligation to Licensee under this section with respect to any Infringement Claim arising twenty four (24) months after the License Effective Date or to the extent arising from (i) a Licensee Improvement or any modifications to the Platform or any Licensor Intellectual Property made by or on behalf of Licensee or at Licensee’s request; (ii) Licensee’s breach of this Agreement, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such breach; (iii) Licensee’s or its Affiliates’ or sublicensees’ use Patents are valid and enforceable as of the Platform Effective Date, (f) to Licensor’s best knowledge, neither the Patents nor the Know-How infringe or misappropriate any Licensor Intellectual Property in a manner not reasonably contemplated by Licensorpatent, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property Licensee in connection with an Expanded Business, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use in the Expanded Business; (v) the combination of the Platform and Licensor Intellectual Property with any Licensee or third party software trade secret or other intellectual property, in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the property right to continue using the impacted portions of the Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Platform or Licensor Intellectual Property so that it becomes non-infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property. This Section 4.1 is Licensor’s sole and exclusive remedy for any claim that the Platform or any Licensor Intellectual Property infringes or misappropriates the Intellectual Property of any third party, and (g) Licensor has not threatened or initiated any claim, suit or proceeding against any third party and Licensor may not exercise alleging that such third party has infringed or misappropriated any indemnity or similar monetary remedy rights under the Purchase AgreementPatents and/or Know-How and, to the knowledge of Licensor, no third party is infringing or misappropriating any such rights.

By Licensor. Licensor shall defendrepresents and warrants that, indemnify except as set forth in the Schedules hereto: (i) it is duly authorized to enter into the transactions contemplated by this Agreement; (ii) this Agreement is a valid and hold harmless binding obligation of Licensor, enforceable against it in accordance with its terms; (iii) the Licensee performance of Licensor's obligations hereunder does not violate any agreement, law, rule, or regulation binding on Licensor or Licensor's charter documents; (iv) subject to Section 7.4, it has, and will continue to have, all rights in and to the Existing Library Programs, Output Programs and Wallpaper necessary to fulfill its obligations hereunder (except that with respect to the Existing Library, no such representation is made as to any program not listed on Schedules 2.1(a)-1, 2.1(a)-2 and 2.1(a)-3); (v) except for the license between Licensor and third parties which Licensor is assigning to Licensee, the Existing Library Programs, Output Programs and Wallpaper are not subject to licenses which conflict with the rights granted herein, and the Representatives of Licensee from and against any and all Losses asserted against, incurred, sustained or suffered use thereof by Licensee and/or as contemplated herein will not infringe upon the Representatives copyright, literary or dramatic right or right of Licensee as a result of, arising out of or relating to a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property privacy of any third party existing as or constitute a libel or slander of any third party; (vi) the License Effective Date (each a “Infringement Claim”); provided, however that licenses between Licensor shall have no obligation and third parties which Licensor is assigning to Licensee are assignable, valid and enforceable, that the licensees under this section such licenses have not pre-paid the license fees, if any, due thereunder (except in accordance with respect to any Infringement Claim arising twenty four (24) months after the License Effective Date or terms of such licenses), and, to the extent arising from (i) a Licensee Improvement or any modifications to the Platform or any Licensor Intellectual Property made by or on behalf best of Licensee or at Licensee’s request; (ii) Licensee’s breach of this AgreementLicensor's knowledge and belief, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would licensees do not have occurred any claims, offsets or have existed but for such breachdefenses which are adverse to Licensee's rights hereunder; and (iiivii) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property in a manner not reasonably contemplated by Licensor, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property Licensee in connection with an Expanded Business, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use in the Expanded Business; (v) the combination of the Platform and Licensor Intellectual Property with any Licensee or third party software or other intellectual property, in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses has disclosed all material information relating to the Infringement Claim: (x) procure for rights granted hereunder, and that all such information is true and correct to the Licensee (at best of Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Platform or Licensor Intellectual Property so that it becomes non-infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property. This Section 4.1 is Licensor’s sole 's knowledge and exclusive remedy for any claim that the Platform or any Licensor Intellectual Property infringes or misappropriates the Intellectual Property of any third party and Licensor may not exercise any indemnity or similar monetary remedy under the Purchase Agreementbelief.

By Licensor. Licensor shall defendrepresents, indemnify warrants and hold harmless covenants to Licensee that (a) it has the Licensee right and authority to enter into this Agreement and perform its obligations hereunder and this Agreement constitutes the Representatives legal, valid and binding obligation of Licensee Licensor enforceable in accordance with its terms, subject, however, to the effects of bankruptcy, insolvency, reorganization, moratorium and similar Laws from time to time in effect, as well as to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (b) it owns all right, title and against any interest in and all Losses asserted againstto the Patents and Know-How and has the full right and authority to grant the licenses set forth in Section 2 (Grant of License), incurred(d) there are no outstanding agreements, sustained assignments or suffered by Licensee and/or encumbrances inconsistent with the Representatives provisions of Licensee as a result of, arising out of said licenses and Licensor has the right to grant the licenses set forth in Section 2 without seeking the approval or relating to a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property consent of any third party existing party, (e) none of the Patents have been invalidated either wholly or partly by a court of law within the United States or abroad or by the United States Patent and Trademark Office or any of its foreign equivalents and there are no proceedings to do so as of the License Effective Date Date, (each a “Infringement Claim”); providedf) to Licensor's best knowledge, however that Licensor shall have no obligation to Licensee under this section with respect to any Infringement Claim arising twenty four (24) months after the License Effective Date or to the extent arising from (i) a Licensee Improvement or any modifications to the Platform or any Licensor Intellectual Property made by or on behalf of Licensee or at Licensee’s request; (ii) Licensee’s breach of this Agreement, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such breach; (iii) Licensee’s or its Affiliates’ or sublicensees’ use Patents are valid and enforceable as of the Platform Effective Date, (g) to Licensor's best knowledge, neither the Patents nor the Know-How infringe or misappropriate any Licensor Intellectual Property in a manner not reasonably contemplated by Licensorpatent, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property Licensee in connection with an Expanded Business, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use in the Expanded Business; (v) the combination of the Platform and Licensor Intellectual Property with any Licensee or third party software trade secret or other intellectual property, in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the property right to continue using the impacted portions of the Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Platform or Licensor Intellectual Property so that it becomes non-infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property. This Section 4.1 is Licensor’s sole and exclusive remedy for any claim that the Platform or any Licensor Intellectual Property infringes or misappropriates the Intellectual Property of any third party and (h) Licensor may has not exercise threatened or initiated any indemnity claim, suit or similar monetary remedy proceeding against any third party alleging that such third party has infringed or misappropriated any rights under the Purchase AgreementPatents and/or Know-How and, to the knowledge of Licensor, no third party is infringing or misappropriating any such rights.