By Limelight. Limelight will defend and hold harmless Customer, its directors, officers, employees and affiliates (collectively, the ‘Customer Covered Entities’) from and against any and all claims, actions or demands brought against any of Customer Covered Entities with respect to:
10.2.1. any loss suffered by, damage to or injury of any third party, Limelight employees, agents, sub-contractors and consultants, and any other third party equipment which loss, damage or injury is caused by or otherwise results from acts or omissions by Limelight (collectively, the ‘Limelight Covered Claims’).
By Limelight. 1. Limelight hereby grants to Microsoft a personal, nonexclusive, nontransferable, nonsublicensable license under the Licensed Pending Patents in the jurisdictions in which any of the Licensed Pending Patents has issued to make and use the inventions claimed in the Licensed Pending Patents, as limited by the exclusion set forth in Section 7(b)(2). “Licensed Pending Patents” means the patents that issue under any of the following patent applications, including continuations: [*]. All rights not expressly granted in this section are reserved. No additional rights whatsoever (including, without limitation, any implied licenses) are granted by implication, estoppel or otherwise. Without limiting the generality of the foregoing, the license in this section does not include, and Limelight does not grant, any right under any patent or intellectual property other than the Licensed Pending Patents. Further, Limelight reserves any and all rights to, and shall not have any obligation to, apply for, register, prosecute, perfect, maintain, enforce or take any other action with respect to any Limelight intellectual property rights, including, but not limited to, the Licensed Pending Patents. Limelight may terminate the patent license in this section by giving Microsoft written notice of termination in the event that: (a) the Agreement is terminated due to Microsoft’s breach as set forth in Section 17(b); (b) Microsoft or any of its affiliates commences, directs or controls any legal action seeking to render any of the Licensed Pending Patents or any claim under any of the Licensed Pending Patents invalid or unenforceable; or (c) Microsoft or any of its affiliates brings any proceeding of any kind against Limelight or any of its affiliates for infringement of any patent relating to any functionality described in the Licensed Pending Patents on account of any making, use, sale, offering, importing, disposition or promotion of any Limelight product, technology or service. [*] Confidential Treatment Requested
By Limelight. Limelight represents and warrants to Microsoft as follows:
1. Limelight is duly incorporated, organized and validly existing and in good standing under the laws of the state of Delaware, has all requisite rights, powers, authority, licenses and permits and has undertaken all actions and has fulfilled all conditions to enter into, to perform under and to comply with its obligations under this Agreement including, but not limited to, to grant any rights and licenses as set forth herein;
2. Limelight’s representative whose signature is affixed to this Agreement has full capacity and authority to bind it to the terms hereof;
3. Limelight is not presently under, nor will it enter into in the future, any agreement, commitment, understanding or other obligation, whether written or oral, which is inconsistent or in conflict with this Agreement or would in any way or to any extent prevent, limit or otherwise impair its performance of any of its obligations hereunder or in connection herewith;
4. Except for the litigation between Akamai Technologies, Inc. and the Massachusetts Institute of Technology and Limelight pending in US District Court in Massachusetts, and (to the extent applicable) the letter from Level 3 Communications, LLC to Limelight dated February 9, 2007, there is presently no suit, action, proceeding or other claim pending or threatened, against it, or, to the best of its knowledge, any third party, nor does any fact exist which may be the basis of any such action, suit, proceeding or other claim, with respect to this Agreement or which could have a material adverse effect on Limelight’s capacity to perform under this Agreement;
5. In the performance of this Agreement, Limelight shall comply with all applicable laws, regulations, rules, orders and other requirements of governmental authorities having jurisdiction over the Parties;
6. Limelight and its Subcontractors shall at all times, while on Microsoft property or while performing the Services, comply with all applicable, local, state, federal, and foreign laws and the terms of the MVG;
7. The Services shall either be originally created by Limelight or Limelight will obtain all necessary rights to the Services to transfer ownership to Microsoft as required under this Agreement; [*] Confidential Treatment Requested
8. The Services, Limelight Software, and the [*] ECN Node, including all portions performed by any Subcontractor, will strictly comply with the terms and conditions of this Agreement; and...
By Limelight. (1) Limelight agrees to defend, hold harmless, and indemnify Microsoft and its subsidiaries, affiliates, directors, officers, employees, and agents (“Microsoft Indemnified Parties”), from and against all claims, damages, losses, suits, actions, demands, proceedings, expenses, and liabilities of any kind, (including reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) threatened, asserted or filed (collectively, “Microsoft Claims”) against any Microsoft Indemnified Party, to the extent that such Microsoft Claims arise out of or relate to (i) bodily injury or death to any person arising out of or related to the Services, the Limelight Software or the [*] ECN Node, (ii) loss, disappearance, or damage to property arising out of or related to the Services, the Limelight Software or the [*] ECN Node, (iii) taking the claimant’s allegations to be true, would result in a breach by Limelight of any covenant, warranty or representation made by Limelight in this Agreement, and/or (iv) infringement, violation or misappropriation of any Intellectual Property Right or other proprietary right of any third party by, or arising out of or related to, the Services, the Limelight Software, or the [*] ECN Node.
(2) If any action is brought against any Microsoft Indemnified Party in which indemnity is sought from Limelight, Microsoft shall (i) provide Limelight reasonably prompt notice of any such Microsoft Claim; (ii), except for Patent Claims, defined below, permit Limelight, through counsel mutually acceptable to Microsoft and Limelight, to answer and defend such Microsoft Claim; and (iii) provide Limelight information and reasonable assistance at Limelight’s expense to help Limelight defend such Microsoft Claim.
(3) Microsoft shall have the right to employ separate counsel and participate in the defense of any Microsoft Claim at its own expense. Limelight shall [*] Confidential Treatment Requested reimburse Microsoft for any payments made or losses suffered based upon the judgment of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of Microsoft Claims. Limelight shall not settle any Microsoft Claim on Microsoft’s behalf without first obtaining Microsoft’s written permission.
By Limelight. Limelight further represents and warrants that:
(i) Limelight has full legal right, power and authority to execute, deliver and perform this Agreement, including without limitation the stipulated Dismissal entered in the Lawsuit, and the execution, delivery and performance of same by Limelight have been duly authorized by all necessary corporate action on the part of Limelight;
(ii) this Agreement and the stipulated dismissal in the Lawsuit constitute valid and binding obligations of Limelight, enforceable against Limelight accordance with the terms thereof;
(iii) no promise or representation of any kind has been made to it or any of its representatives by Akamai or its representatives except as expressly set forth in this Agreement, and Limelight is not relying on any oral understanding, representations or agreements and any such reliance would be unintended by Akamai and unjustifiable;
(iv) the terms of this Agreement are fair, and this Agreement constitutes an equitable settlement of the Lawsuit; and
(v) it has not assigned or otherwise transferred to any third party any claims or other rights that are released hereby.
