By Windward Sample Clauses

By Windward. Windward agrees to defend Licensee from and against any third party claims alleging that the Software or Documentation as furnished to Licensee and used within the scope of this Agreement infringes any U.S. patent issued as of the Effective Date, or any copyright, trademark or is a misappropriation of any trade secret of such third party and Windward will pay all final judgments awarded or settlements entered into on such claims. The foregoing indemnity obligation shall not extend to any claims of infringement arising out of or related to (i) a modification of the Software or Documentation by anyone other than Windward or its duly authorized agent; (ii) the incorporation into the Software or Documentation of any information provided by or requested by Licensee;
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By Windward. Windward warrants that, for a period of ninety (90) days from initial delivery of the Software to Licensee, the Software will, when properly installed and used in accordance with the Documentation, perform substantially in accordance with the specifications for the Software as described in the applicable Documentation. As Licensee’s exclusive remedy and Windward’s sole obligation for breach of this warranty, Windward shall use commercially reasonable efforts to correct any reproducible error in the Software constituting a breach of the warranty at no additional charge. Windward does not warrant that Licensee’s use of the Software will be error-free, virus-free or uninterrupted. Windward makes no other warranty, express or implied, with respect to any Services or Software provided by Windward under this Agreement. WINDWARD HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS AND OTHER TERMS, WHETHER STATUTORY, ARISING FROM COURSE OF DEALING, OR OTHERWISE, INCLUDING WITHOUT LIMITATION TERMS AS TO QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
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By Windward. (i) in the event of a material breach of this Agreement by the Company or the Shareholders that has not been cured, or if any representation or warranty of the Company or the Shareholders shall have become untrue in any material respect, which in either case is incapable of being cured by the Subsequent Closing Date or will prevent or delay consummation of the Merger by or beyond the Termination Date; or (ii) if the Subsequent Closing shall not have occurred on or before the Termination Date by reason of the failure of any condition precedent under Section 7.1 or 7.3 hereof (unless the failure results primarily from Windward's breaching any representation, warranty or covenant contained in this Agreement or any Collateral Document); or (iii) if the Company amends the Company Disclosure Schedule pursuant to Section 10.12; or E. by Windward, if the Company or its Board of Directors or any Shareholder takes any action prohibited by Section 6.7; or
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By Windward. Windward agrees to defend Licensee from and against any third party claims alleging that the Software or Documentation as furnished to Licensee and used within the scope of this Agreement infringes any U.S. patent issued as of the Effective Date, or any copyright, trademark or is a misappropriation of any trade secret of such third party and Windward will pay all final judgments awarded or settlements entered into on such claims. The foregoing indemnity obligation shall not extend to any claims of infringement arising out of or related to (i) a modification of the Software or Documentation by anyone other than Windward or its duly authorized agent; (ii) the incorporation into the Software or Documentation of any information provided by or requested by Licensee; (iii) a combination of the Software with any third party software or equipment not specified in the Documentation and where such combination is the cause of such infringement; or (iv) the use of a version of the Software other than the then-current version if the infringement would have been avoided by using of the then-current version. In the event the Software or Documentation are held or are believed by Windward to infringe, Windward may, at its sole option and expense, elect to (a) modify the Software or Documentation so that they are non-infringing; (b) replace the Software with non-infringing Software which are functionally equivalent; (c) obtain a license for Licensee to continue to use the Software as provided hereunder; or if none of (a), (b), or (c) is commercially reasonable, then (d) terminate the license for the infringing Software or Documentation and refund the license fees paid for that Software or Documentation, prorated over a five (5) year term from the Effective Date. This Section 9.1 states Windward’s entire liability and Licensee’s sole and exclusive remedy for any infringement of third party proprietary rights of any kind.
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Related to By Windward

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