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.
Appears in 2 contracts
Samples: Platform License Agreement, Platform License Agreement (Ancestry.com Inc.)
By Licensor. During the Term, Licensor shall defend, indemnify and hold Licensee harmless the Licensee and the Representatives of Licensee from and against any fine, penalty, loss, liability and all Losses asserted against, incurred, sustained or suffered expense (including reasonable attorneys' fees and court costs) incurred by Licensee and/or the Representatives of Licensee as a result ofof any claim, demand or action ("Infringement Claim") against Licensee based on, related to or arising out of or relating to a any claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee Licensed Technology infringes or misappropriates the Intellectual Property any patent or other intellectual property right of any a third party existing as of the License Effective Date (each a “Infringement Claim”)party; provided, however however, that Licensor shall have no obligation liability pursuant to this Section 11.1 or otherwise for any Infringement Claim to the extent such Infringement Claim is proximately caused by (a) the misuse or unapproved modification of the Licensed Technology by Licensee, (b) the failure by Licensee under this section to use corrections updates, fixes, work-arounds or new releases provided by Licensor, (c) the modification or Improvement or Enhancement of any of the Licensed Technology by any person other than Licensor, or someone specifically approved by Licensor, (d) the use of the Licensed Technology in combination with software programs, data, hardware or equipment not provided or approved by Licensor, or (e) any modification, Improvement or Enhancement requested by Licensee in order to meet the Functional Requirements set forth on Exhibit C or otherwise or any Licensed Technology relating to FOURS. In the event of an Infringement Claim for which Licensor is responsible, or if in Licensor's reasonable judgment an Infringement Claim for which Licensor is responsible is likely to be made, Licensor may, at its option and expense, or if a nonappealable final judgment against Licensee with respect to any an Infringement Claim arising twenty four (24) months after the License Effective Date is entered, 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 BusinessInfringement Claim, but only to the extent the infringement that a temporary restraining order or injunction is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such issued against Licensee's 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 injunctionLicensed Technology, Licensor may (shall, at its option)expense, do one of the following to mitigate the Losses relating to the Infringement Claim: either (xi) procure for the Licensee (at Licensor’s expense) the right for Licensee to continue using the impacted portions of the Platform or Licensor Intellectual Property, Licensed Technology in accordance with this Agreement or (yii) replace or modify the impacted portions Licensed Technology in a functionally equivalent manner so that such Licensed Technology becomes noninfringing. In the event that the above remedies are not available within ninety (90) days of the Platform date any judgment described in the foregoing sentence becomes final and nonappealable or Licensor Intellectual Property so that it becomes non-infringing without substantially compromising functions, features, or performance of the Platform or date of 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 issuance of any third party temporary restraining order or injunction described in the foregoing sentence, Licensee shall have the option to terminate this Agreement upon thirty (30) days' notice to Licensor without waiver of any additional remedies available at law or in equity in respect of any breach of Licensor's representations and warranties in Section 8 of this Agreement and without any obligation to make additional payments to Licensor may not exercise hereunder provided that Licensee shall thereupon cease use of any indemnity or similar monetary remedy under of the Purchase Agreementlicensed Technology in accordance with Section 7.
Appears in 2 contracts
Samples: License Agreement (International Sports Wagering Inc), License Agreement (International Sports Wagering Inc)
By Licensor. The Licensor shall defendhereby represents, indemnify warrants and hold harmless covenants to the Licensee that:
(a) except as may otherwise be expressly notified to the Licensee in writing, the Licensor has and for the duration of this Agreement, will continue to have full right and title to the Patents, the Patent Applications, the Inventions, the Information, the Know-How, the Improvements and the Licensed Technology, except to the extent co-owned with Licensee;
(b) the Licensor has the right to grant the license and sublicense rights under this Agreement to the Licensee and the Representatives Licensee's sublicensees;
(c) the Licensor is entitled to make all patent applications which it has made, and the Licensor has not made knowing use of Licensee from and against any and all Losses asserted against, incurred, sustained intellectual property 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 other rights of any third party existing as in the making of the License Effective Date patent applications;
(each a “Infringement Claim”); providedd) all Patent Applications filed by the Licensor at the date of this Agreement have to the best knowledge of the Licensor been made in the prescribed form and in the prescribed manner;
(e) the Patents, however that the Patent Applications, the Inventions, the Information, the Know-How and the Improvements include or will include all technology owned by or registered in the name of the 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 which the extent arising from (i) a Licensee Improvement Licensor is beneficially entitled on or any modifications relating to the Platform Field and possessed, invented, developed or any Licensor Intellectual Property made acquired by or on behalf for the Licensor;
(f) all Inventions, Information, Know-How and Improvements supplied to the Licensee by the Licensor will be to the best of the knowledge and belief of the Licensor true, accurate, reliable and up-to-date; and
(g) Licensor (a) is the sole owner or exclusive licensee of the Licensed Technology, and except as Licensor has expressly informed Licensee or at Licensee’s request; (ii) Licensee’s breach in writing prior to the date of this Agreement, but only has not granted to any Third Party any license or other interest in 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 breachLicensed Technology; (iiib) Licensee’s or its Affiliates’ or sublicensees’ use is not aware of the Platform or any Licensor Intellectual Property in a manner not reasonably contemplated by LicensorThird Party patent, 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 patent application or other intellectual propertyproperty rights that would be infringed (i) by practicing any process or method or by making, using or selling any composition which is claimed or disclosed in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim Patents 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 Propertywhich constitutes Information and Know-How, or (yii) replace by making, using or modify the impacted portions selling Products; and (c) is not aware of any infringement or misappropriation by a Third Party 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 AgreementLicensed Technology.
Appears in 2 contracts
Samples: Licensing Agreement (Deltagen Inc), Licensing Agreement (Deltagen Inc)
By Licensor. Licensor shall defend, indemnify and hold harmless the Licensee and the Representatives of Licensee from and will defend or settle any suit or proceeding brought against any and all Losses asserted against, incurred, sustained or suffered Customer by Licensee and/or the Representatives of Licensee as a result of, arising out of or relating to third party based upon a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property Software constitutes an infringement of any existing and valid copyright, trademark or trade secret in the United States of such third party existing as of the License Effective Date (each any such suit or proceeding, a “Infringement Claim”); provided, however provided 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 Customer (i) a Licensee Improvement or any modifications to the Platform or any promptly notifies Licensor Intellectual Property made by or on behalf in writing of Licensee or at Licensee’s request; such claim (ii) Licenseepromptly gives Licensor the right to control and direct the investigation, preparation, defense and settlement of such Claim with counsel of Licensor’s breach own choosing (provided that Customer will have the right to reasonably participate, at its own expense, in the defense or settlement of this Agreement, but only to the extent the third party infringement that is at issue in any such Infringement Claim or Losses would not have occurred or have existed but for such breachClaim); and (iii) Licenseegives assistance and full cooperation for the defense of same. Subject to Customer’s compliance with the foregoing requirements, Licensor will pay all damages and costs awarded by a court of competent jurisdiction against Customer in such Claim or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property in amounts payable pursuant to a manner not reasonably contemplated settlement agreed to by Licensor, but only to the extent the third party infringement that is at issue in such Infringement Claim will not be responsible for any cost, expense or Losses would not have occurred compromise incurred or have existed but made by Customer without Licensor’s prior written consent or for such non-contemplated use; (iv) Licensee’s any lost profits or its Affiliates’ other damage or sublicensees’ use of the Platform or loss suffered by Customer. If any Licensor Intellectual Property Licensee in connection with an Expanded Business, but only to the extent the infringement that Technology 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 opinion of the Platform and Licensor Intellectual Property with any Licensee likely to 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 does become the subject of any Infringement Claim or injunctiona claim of infringement, Licensor may (may, at its sole option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) Customer the right to continue using the impacted portions Licensor Technology, modify the affected materials to become non-infringing, or replace it with non-infringing Licensor Technology. If Licensor is not reasonably able to so modify or replace the Licensor Technology or otherwise secure for Customer the right to continue using the Licensor Technology, Licensor may terminate this Agreement and, upon return to it of all copies of the Platform Software and Documentation licensed hereunder, refund to Customer to refund the licensing fees paid less the portion of the license fees attributable to the period over which Customer actually used the Software, assuming full amortization of the Software over a period of three years. Notwithstanding the foregoing, the foregoing defense and indemnity obligations will not apply to any Claim based upon or Licensor Intellectual Propertyarising from (w) use of the Software in a manner for which it was not designed, not in accordance with applicable Documentation, or in violation of the terms and conditions of this Agreement, (x) any modification of the Software by any party other than Licensor, (y) any use of the Software in combination with hardware or software not provided or authorized by Licensor, or (yz) replace or modify the impacted portions use of the Platform or Software, when use of a subsequent software release which Licensor Intellectual Property so that it becomes non-infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Propertyhas made commercially available would have avoided such infringement. This Section 4.1 is Licensor’s 8(a) represents the sole and exclusive remedy for any claim that of Customer and the Platform entire liability and obligation of Licensor with respect to infringement or any Licensor Intellectual Property infringes or misappropriates the Intellectual Property claims of infringement of any third party and Licensor may not exercise any indemnity or similar monetary remedy under the Purchase Agreementintellectual property right.
Appears in 1 contract
Samples: End User License Agreement
By Licensor. Licensor shall defend, indemnify and hold harmless the Licensee and the Representatives of Licensee from and will defend or settle any suit or proceeding brought against any and all Losses asserted against, incurred, sustained or suffered Customer by Licensee and/or the Representatives of Licensee as a result of, arising out of or relating to third party based upon a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property Software constitutes an infringement of any existing and valid copyright, trademark or trade secret in the United States of such third party existing as of the License Effective Date (each any such suit or proceeding, a “Infringement Claim”); provided, however provided 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 Customer
(i) a Licensee Improvement or any modifications to the Platform or any promptly notifies Licensor Intellectual Property made by or on behalf in writing of Licensee or at Licensee’s request; such claim (ii) Licenseepromptly gives Licensor the right to control and direct the investigation, preparation, defense and settlement of such Claim with counsel of Licensor’s breach own choosing (provided that Customer will have the right to reasonably participate, at its own expense, in the defense or settlement of this Agreement, but only to the extent the third party infringement that is at issue in any such Infringement Claim or Losses would not have occurred or have existed but for such breachClaim); and (iii) Licenseegives assistance and full cooperation for the defense of same. Subject to Customer’s compliance with the foregoing requirements, Licensor will pay all damages and costs awarded by a court of competent jurisdiction against Customer in such Claim or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property in amounts payable pursuant to a manner not reasonably contemplated settlement agreed to by Licensor, but only to the extent the third party infringement that is at issue in such Infringement Claim will not be responsible for any cost, expense or Losses would not have occurred compromise incurred or have existed but made by Customer without Licensor’s prior written consent or for such non-contemplated use; (iv) Licensee’s any lost profits or its Affiliates’ other damage or sublicensees’ use of the Platform or loss suffered by Customer. If any Licensor Intellectual Property Licensee in connection with an Expanded Business, but only to the extent the infringement that Technology 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 opinion of the Platform and Licensor Intellectual Property with any Licensee likely to 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 does become the subject of any Infringement Claim or injunctiona claim of infringement, Licensor may (may, at its sole option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) Customer the right to continue using the impacted portions Licensor Technology, modify the affected materials to become non-infringing, or replace it with non-infringing Licensor Technology. If Licensor is not reasonably able to so modify or replace the Licensor Technology or otherwise secure for Customer the right to continue using the Licensor Technology, Licensor may terminate this Agreement and, upon return to it of all copies of the Platform Software and Documentation licensed hereunder, refund to Customer to refund the licensing fees paid less the portion of the license fees attributable to the period over which Customer actually used the Software, assuming full amortization of the Software over a period of three years. Notwithstanding the foregoing, the foregoing defense and indemnity obligations will not apply to any Claim based upon or Licensor Intellectual Propertyarising from (w) use of the Software in a manner for which it was not designed, not in accordance with applicable Documentation, or in violation of the terms and conditions of this Agreement, (x) any modification of the Software by any party other than Licensor, (y) any use of the Software in combination with hardware or software not provided or authorized by Licensor, or (yz) replace or modify the impacted portions use of the Platform or Software, when use of a subsequent software release which Licensor Intellectual Property so that it becomes non-infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Propertyhas made commercially available would have avoided such infringement. This Section 4.1 is Licensor’s 8(a) represents the sole and exclusive remedy for any claim that of Customer and the Platform entire liability and obligation of Licensor with respect to infringement or any Licensor Intellectual Property infringes or misappropriates the Intellectual Property claims of infringement of any third party and Licensor may not exercise any indemnity or similar monetary remedy under the Purchase Agreementintellectual property right.
Appears in 1 contract
Samples: End User License Agreement
By Licensor. The Licensor shall defendhereby represents, indemnify warrants and hold harmless covenants to the Licensee that:
(a) except as may otherwise be expressly notified to the Licensee in writing, the Licensor has and for the duration of this Agreement, will continue to have full right and title to the Patents, the Patent Applications, the Inventions, the Information, the Know-How, the Improvements and the Licensed Technology, except to the extent co-owned with Licensee;
(b) the Licensor has the right to grant the license and sublicense rights under this Agreement to the Licensee and the Representatives Licensee's sublicensees;
(c) the Licensor is entitled to make all patent applications which it has made, and the Licensor has not made knowing use of Licensee from and against any and all Losses asserted against, incurred, sustained intellectual property 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 other rights of any third party existing as in the making of the License Effective Date patent applications;
(each a “Infringement Claim”); providedd) all Patent Applications filed by the Licensor at the date of this Agreement have to the best knowledge of the Licensor been made in the prescribed form and in the prescribed manner;
(e) the Patents, however that the Patent Applications, the Inventions, the Information, the Know-How and the Improvements include or will include all technology owned by or registered in the name of the 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 which the extent arising from (i) a Licensee Improvement Licensor is beneficially entitled on *** Confidential material redacted and separately filed with the Commission. or any modifications relating to the Platform Field and possessed, invented, developed or any Licensor Intellectual Property made acquired by or on behalf for the Licensor;
(f) all Inventions, Information, Know-How and Improvements supplied to the Licensee by the Licensor will be to the best of the knowledge and belief of the Licensor true, accurate, reliable and up-to-date; and
(g) Licensor (a) is the sole owner or exclusive licensee of the Licensed Technology, and except as Licensor has expressly informed Licensee or at Licensee’s request; (ii) Licensee’s breach in writing prior to the date of this Agreement, but only has not granted to any Third Party any license or other interest in 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 breachLicensed Technology; (iiib) Licensee’s or its Affiliates’ or sublicensees’ use is not aware of the Platform or any Licensor Intellectual Property in a manner not reasonably contemplated by LicensorThird Party patent, 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 patent application or other intellectual propertyproperty rights that would be infringed (i) by practicing any process or method or by making, using or selling any composition which is claimed or disclosed in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim Patents 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 Propertywhich constitutes Information and Know-How, or (yii) replace by making, using or modify the impacted portions selling Products; and (c) is not aware of any infringement or misappropriation by a Third Party 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 AgreementLicensed Technology.
Appears in 1 contract
Samples: Licensing Agreement (Deltagen Inc)
By Licensor. Licensor shall defend, indemnify and hold harmless the Licensee and the Representatives If notified promptly in writing of Licensee from and against any action (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 prior related claims) brought against LICENSEE based on a claim that the Platform Licensed Software infringes any valid U.S. patent, copyright or any Licensor Intellectual Property as delivered trade secret, LICENSOR shall defend such action at LICENSOR’s expense and pay all costs and damages finally awarded in such action or settlement which are attributable to Licensor by Licensee infringes or misappropriates such claim. LICENSOR shall have sole control of the Intellectual Property defense of any third party existing as such action and all negotiations for its settlement or compromise. LICENSEE shall cooperate fully with LICENSOR in the defense, settlement or compromise of any such action. Notwithstanding anything to the License Effective Date (each a “Infringement Claim”); providedcontrary contained herein, however that Licensor LICENSOR shall not have no obligation any liability to Licensee under this section with respect to any Infringement Claim arising twenty four (24) months after the License Effective Date or LICENSEE to the extent arising from that any infringement or claim thereof is based upon (i) a Licensee Improvement use of the Licensed Software in combination with equipment or any modifications to software not supplied by LICENSOR where the Platform or any Licensor Intellectual Property made by or on behalf of Licensee or at Licensee’s request; Licensed Software would not itself be infringing, (ii) Licenseecompliance with LICENSEE’s breach of this Agreementdesigns, but only to the extent the third party infringement that is at issue in such Infringement Claim specifications or Losses would not have occurred or have existed but for such breach; instructions, (iii) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform Licensed Software in an application or any Licensor Intellectual Property in a manner environment for which it was not reasonably contemplated by Licensor, but only to the extent the third party infringement that is at issue in such Infringement Claim designed or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use modifications of the Platform or any Licensor Intellectual Property Licensee in connection with an Expanded BusinessLicensed Software by anyone other than LICENSOR without LICENSOR's prior written approval. Notwithstanding the above, 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 LICENSOR’s indemnification obligations shall be extinguished and Licensor Intellectual Property with any Licensee or third party software or other intellectual propertyrelieved if LICENSOR, 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)discretion and at its own expense (a) procures for LICENSEE the right, do one of the following at no additional expense to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right LICENSEE, to continue using the impacted portions of Licensed Software; (b) replaces or modifies the Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Platform or Licensor Intellectual Property Licensed Software so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Licensed Software; or (c) in the event (a) and (b) are not practical, refund to Licensee the amortized license fees paid by LICENSEE with respect to the infringing without substantially compromising functions, featuresLicensed Software, or performance infringing portion thereof, based on a five (5) year amortization schedule. The obligations of LICENSOR to LICENSEE as set forth in the Platform or previous paragraph do not apply to Third Party Products. LICENSOR hereby assigns to LICENSEE all intellectual property infringement indemnification benefits and obligations that have been granted to LICENSOR by third-party vendors regarding Third-Party Products to the Licensor Intellectual Property. This Section 4.1 is Licensor’s sole extent that such benefits 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 Agreementobligations can be assigned.
Appears in 1 contract
Samples: Master License Agreement
By Licensor. Licensor shall defendrepresents and warrants that:
(i) it has the full right, indemnify power, and hold harmless authority to enter into and fully perform its obligations under this Agreement and grant the rights granted by Licensor hereunder;
(ii) it has not and will not undertake any act or omission, and has not and will not enter into any agreement, which would violate or conflict with any of the rights granted to Licensee or Licensee’s exercise thereof, or prohibit or otherwise interfere with the performance of Licensor’s obligations, under this Agreement;
(iii) it owns and/or controls all rights, licenses, consents and permissions in and to the Representatives of Licensee from Licensed Content, including the Licensed Programs, Licensor Promotional Materials, Licensor Marks, metadata, and against any and all Losses asserted against, incurred, sustained other materials provided 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 otherwise made available by or on behalf of Licensor to Licensee or at Licensee’s request; hereunder (iicollectively, the “Delivery Materials”) Licensee’s breach of this Agreement, but only to the extent necessary to grant 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 rights, licenses and privileges granted to Licensee herein, and the Delivery Materials and the exercise of the Platform rights granted to Licensee hereunder do not and will not violate or infringe upon the intellectual property, proprietary or moral rights of any Licensor Intellectual Property in a manner not reasonably contemplated by Licensorperson, but only firm or entity, or otherwise give rise to the extent the third party infringement that is at issue in such Infringement Claim any adverse claim with respect to any common law or Losses would not have occurred other right of any person, firm or have existed but for such non-contemplated use; entity;
(iv) Licensee’s or its Affiliates’ or sublicensees’ use Licensor has obtained and will continue to obtain and maintain throughout the Term all rights, licenses, releases, and clearances with respect to the Delivery Materials required for the exercise of the Platform rights granted to Licensee hereunder, and except as set forth herein, (A) there are not and will not be payments of any kind required to be made by Licensee as a result of any exercise of the rights granted to Licensee herein, and (B) Licensor shall be responsible for all material obligations and has paid or will pay all license fees, guild residuals, laboratory charges, wages, reuse fees, and other payments to any Licensor Intellectual Property Licensee third parties necessary in connection with an Expanded Businessthe Licensed Content or Licensee’s exploitation of any of the rights granted to Licensee herein, but only excluding any music performance fees for which Licensee is responsible pursuant 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; Section 8(a)(v) below;
(v) the combination performing rights of all musical compositions contained in the Platform Delivery Materials are (A) controlled by ASCAP, BMI, SESAC or GMR and available for license by Licensee from the publisher(s) controlling such rights, (B) owned by or licensed to Licensor Intellectual Property so no additional licenses or payments are payable with any Licensee or third party software or other intellectual property, in each case, not provided by Licensor, but only respect 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 Propertyexploitation hereunder, or (yC) replace or modify in the impacted portions public domain worldwide; subject to the foregoing, Licensee will be responsible for any music performance fees arising out of its exploitation of the Platform musical compositions in the Licensed Content hereunder; and
(vi) the Delivery Materials will not (A) contain any cookies or Licensor Intellectual Property so that it becomes non-infringing without substantially compromising functionsother tracking technologies or otherwise provide for any method of data collection from Licensee, featuresthe Service or users thereof, or performance (B) include or introduce into Licensee’s systems any virus, worm, “back door,” “Trojan Horse,” drop dead device, time bomb, spyware, adware or other malicious, harmful, destructive or disruptive code, component or device, including any code, component or device that may cause a security incident or damages to systems, or is capable of facilitating any 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 Agreementforegoing.
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By Licensor. Licensor shall agrees to defend, indemnify and hold harmless the Licensee and the Representatives its officers, directors, shareholders, employees, affiliates and representatives from, in respect of Licensee from and against any and all Losses asserted againstclaims, incurredcosts, sustained losses, liabilities, expenses (including reasonable attorneys’ fees and disbursements), judgments, damages, demands, lawsuits or suffered by Licensee and/or the Representatives of Licensee as a result ofsimilar actions or proceedings (each, 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 out of a third-party claim based on (i) the breach or alleged breach of any representation, warranty or covenant of Licensor hereunder or (ii) Licensor’s direct contribution to or participation in the promotion or advertising of the Covered Products, other than any Claim (including any Claim for product liability) based primarily on a Licensee Improvement breach of any representation, warranty or any modifications to the Platform or any Licensor Intellectual Property made by or on behalf covenant of Licensee or relating to any Claim described in Section 11.2 (each, a “Licensee Claim”). Licensee agrees to notify Licensor in writing within a reasonable time after it receives notice of any Licensee Claim and Licensor shall promptly assume Licensee’s defense thereof with counsel acceptable to Licensee in Licensee’s reasonable discretion. At Licensor’s expense, and as Licensor may reasonably request, Licensee shall cooperate in the defense or settlement of any Licensee Claim. Failure by Licensee to strictly fulfill the obligations set forth in the two immediately preceding sentences of this Section 10.1 shall not relieve Licensor of its obligations hereunder except to the extent (and only to the extent) that Licensor is prejudiced by such failure. Licensee shall have the right to participate in the defense of any Licensee Claim with separate counsel of its choosing and at Licensee’s request; (ii) expense. Licensor shall not settle or compromise any Licensee Claim without receiving Licensee’s breach of this Agreementprior written consent, but only which shall not be unreasonably withheld; provided that it shall be deemed reasonable for Licensee to the extent the third party infringement withhold its consent to any settlement or compromise that would impose any financial liability upon Licensee 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 fully discharged by 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 settlement 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 Agreementcompromise.
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