By Xxxxxx. XXXXXX represents and warrants to EAGLE that (a) XXXXXX owns all right, title and interest in the ASSIGNED PATENTS and CONTROL over the LICENSED TECHNOLOGY, (b) the formulation for, manufacture, use, import, offer for sale and sale of the PRODUCT, as described in the PATENT APPLICATIONS set forth in Schedule I, does not and will not infringe or misappropriate the intellectual property rights of any THIRD PARTY, (c) EAGLE’s exercise of the license to the XXXXXX LICENSED TECHNOLOGY granted herein will not infringe or misappropriate the intellectual property rights of any THIRD PARTY, (d) XXXXXX and its employees and contractors complied with, and shall comply with, all LAWS in developing the formulation and manufacturing methods and processes for the PRODUCTS, and (e) neither XXXXXX nor any of its employees or contractors violated, or will violate, any terms of confidentiality or non-compete agreements in developing any of the PRODUCT technology methods, processes or formulations.
By Xxxxxx. Subject to the limitations set forth in Article 9, XXXXXX shall defend, indemnify and hold EAGLE, EAGLE’S AFFILIATES, EAGLE’S LICENSEES, EAGLE’s SUBLICENSEES and the respective shareholders, directors, officers, employees, representatives and agents of each of the foregoing (each, a “EAGLE INDEMNITEE”) harmless from and against all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees and costs of investigation and litigation, regardless of outcome) resulting from all claims, demands, actions and other proceedings by or on behalf of any THIRD PARTY (including any governmental authority) (collectively, “CLAIMS”) to the extent arising from: (a) the breach of any representation, warranty, covenant or material obligation of XXXXXX under this AGREEMENT; or (b) the negligence, recklessness or willful misconduct of XXXXXX in the performance of its obligations under this AGREEMENT, except in each case to the extent such claim, demand, action or proceeding arises from EAGLE’S material breach of this AGREEMENT or the negligence, recklessness or willful misconduct of a EAGLE INDEMNITEE.
By Xxxxxx. GNOSIS represents and warrants that during the applicable subscription term they will (i) make the Services available to Customer pursuant to the applicable Order Form(s) and related Scope of Service, this MSA, and any related Documentation; (ii) provide applicable GNOSIS support for the purchased Services pursuant to the Scope of Services; (iii) use commercially reasonable efforts to make the online purchased Services available twenty-four (24) hours a day, seven (7) days a week, except for planned downtime or as a result of Section 13(c); (iv) maintain legally competent administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of non-public Customer Data; (v) provide the Services in accordance with all applicable laws and governmental regulations applicable to GNOSIS’ provision of its Services to its Customers without regard for Customer’s particular use of the Services; (vi) not materially decrease the overall security or functionality of the Services; and (vii) the Services will perform materially in accordance with the applicable Order Form(s) and the related Scope of Services.
By Xxxxxx. Xxxxxx covenants and agrees to indemnify and hold TOUR, its affiliated entities and each of their respective officers, directors, employees and agents (collectively, the 'TOUR Indemnities") harmless from and against any and all losses, claims, damages, expenses, judgments, awards, petitions, demands or liabilities (including reasonable attorneys, fees, whether incurred in preparation for trial, at trial, on appeal or in bankruptcy proceedings), joint or several, to which the TOUR Indemnities may become subject on account of any default by Xxxxxx in the performance of Xxxxxx'x obligations hereunder. TOUR will notify Xxxxxx Promptly upon receipt of notice of any such claim. Upon such notice to Xxxxxx, Xxxxxx shall assume responsibility for the defense of the interests of the TOUR Indemnities.
By Xxxxxx. XXXXXX shall defend, indemnify and hold NEKTAR AL, NEKTAR AL AFFILIATES, and their respective shareholders, directors, officers, employees and agents (each, a “NEKTAR AL INDEMNITEE”) harmless from and against all CLAIMS to the extent arising from: (a) the breach of any representation, warranty, covenant or material obligation of XXXXXX under this AGREEMENT; [***].
By Xxxxxx. Xxxxxx will defend, indemnify and hold you harmless from and against, and pay any final award of damages or settlement amount and any liabilities or expenses incurred by you (including reasonable attorneys’ fees), as a result of any claim brought against you by a third party (i) arising out of Xxxxxx’s violation of applicable law; or (ii) that alleges that the Solutions infringes any patent, trademark or other intellectual property right of a third party. If the use of the Solutions is (or in Xxxxxx’s opinion is likely to be) enjoined due to such a claim, Nasuni will at its option either (1) procure the right to continue using the Solutions under the terms of this Agreement, (2) replace or modify the Solutions so that it is non-infringing (but functionally equivalent), or (3) if Nasuni determines that neither of these options is reasonably available, then Nasuni may cancel your subscription with respect to the infringing Solutions and refund you the unused portion of the Subscription Fees paid for the Solutions for which the use is legally prohibited. Nasuni will have no liability for any claim of infringement based on (a) your use or combination of the Solutions with any other software, hardware or service not supported by Nasuni, if such infringement would not have occurred but for such use or combination, (b) any modification of the Solutions by anyone other than Xxxxxx (or a third party acting on behalf of Nasuni at Nasuni’s written direction), or (c) the use of any version of the Solutions other than the most current version, if such version was made available to you by Nasuni with notice that such version was being provided in order to avoid an alleged or potential infringement. This section describes Xxxxxx’s entire responsibility and your sole remedy for any infringement claim or action.
By Xxxxxx xxx. xxxxxx.xxx hereby agrees to defend Customer, its affiliates, officers, directors, and employees, in and against any third party claim or demand against Customer, alleging that Customer’s authorized use of the Service infringes or constitutes misappropriation of any third party’s copyright, trademark or registered US patent (the “IP Claim”), and we will indemnify Customer and hold Customer harmless against any damages and costs finally awarded on such IP Claim by a court of competent jurisdiction or agreed to via settlement we agreed upon, including reasonable attorneys’ fees. xxxxxx.xxx’s indemnity obligations under this Section 16 shall not apply if: (i) the Service (or any portion thereof) was modified by Customer or any of its Users or any third party, but solely to the extent the IP Claim would have been avoided by not doing such modification; (ii) if the Service is used in combination with any other service, device, software or products, including, without limitation, Third Party Services, but solely to the extent that such IP Claim would have been avoided without such combination; and/or (iii) any IP Claim arising or related to, the Customer Data or to any events giving rise to Customer’s indemnity obligations under Section 16.1 above. Without derogating from the foregoing defense and indemnification obligation, if xxxxxx.xxx believes that the Service, or any part thereof, may so infringe, then xxxxxx.xxx may in its sole discretion: (a) obtain (at no additional cost to you) the right to continue to use the Service; (b) replace or modify the allegedly infringing part of the Service so that it becomes non-infringing while giving substantially equivalent performance; or (c) if xxxxxx.xxx determines that the foregoing remedies are not reasonably available, then xxxxxx.xxx may require that use of the (allegedly) infringing Service (or part thereof) shall cease and in such an event, Customer shall receive a prorated refund of any Subscription Fees paid for the unused portion of the Subscription Term. THIS SECTION 16.2
By Xxxxxx. Xxxxxx hereby represents, warrants and covenants as follows:
(a) Xxxxxx is a corporation duly organized, validly existing and in good standing under the laws of the state of Delaware.
(b) The execution, delivery and performance of this Agreement by Xxxxxx (i) are within its corporate powers, (ii) have been duly authorized by all necessary corporate action on Xxxxxx’x part, and (iii) do not and shall not contravene or constitute a default under, and are not and shall not be inconsistent with, any law or regulation, any judgment, decree or order, or any contract, agreement or other undertaking applicable to Xxxxxx.
(c) Xxxxxx has the full right and authority to grant the rights and licenses granted by Xxxxxx to Intuitive herein.
(d) Xxxxxx has not granted any right, license, or interest in, to or under the Xxxxxx Cross-Licensed IP or Xxxxxx-Xxxx IP inconsistent with the rights and licenses granted to Intuitive in this Agreement.
(e) To the best of Xxxxxx’x knowledge as of the Effective Date, there are no actions, suits, investigations, claims or proceedings pending or threatened against Xxxxxx relating to the Xxxxxx Cross-Licensed IP or Xxxxxx-Xxxx IP, other than the Litigation and the Chapter 11 Case.
(f) Aside from the Development and Supply Agreement (which, among other things, amends and restates that certain Terms and Conditions of Sale and Service executed by Xxxxxx on September 27, 2006 and Xxxx on September 28, 2006) and the Xxxxxx-Xxxx License, there are no agreements between Xxxx and Xxxxxx as of the Effective Date with respect to FOSSL Technology (other than a non-disclosure agreement dated April 1, 2006) or that would restrict or prevent the granting of the licenses granted by Xxxx to Intuitive in Section 2.1 of the Intuitive-Xxxx License or the granting the corresponding license granted by Xxxx to Xxxxxx in Section 2.1 of the Xxxxxx-Xxxx License.
(g) Aside from the Development and Supply Agreement, there are no amendments or modifications to the Terms and Conditions of Sale and Service executed by Xxxxxx on September 27, 2006 and Xxxx on September 28, 2006).
(h) Xxxxxx agrees not to amend the Xxxxxx-Xxxx License or the Development and Supply Agreement in a way that would (i) terminate or rescind the licenses granted to Intuitive in Section 2.1 of the Intuitive-Xxxx License, or (ii) conflict with the provisions in Article 4 of the Intuitive-Xxxx License or Article 5 of the Xxxxxx-Xxxx License, or (iii) restrict or prohibit Xxxx from developing or...
By Xxxxxx. Xxxxxx hereby represents, warrants and covenants as follows:
6.1.1 Xxxxxx is a corporation duly organized, validly existing and in good standing under the laws of the state of Delaware.
6.1.2 The execution, delivery and performance of this Agreement by Xxxxxx (i) are within its corporate powers, (ii) have been duly authorized by all necessary corporate action on Xxxxxx’x part, and (iii) do not and shall not contravene or constitute a default under, and are not and shall not be inconsistent with, any law or regulation, any judgment decree or order, or any contract, agreement or other undertaking applicable to Xxxxxx.
By Xxxxxx. Subject to Section 8.3, Xxxxxx will defend, indemnify and hold harmless Xxxx and its officers, directors, shareholders, employees, contractors and agents (collectively, the “Xxxx Indemnitees”) from and against any losses, damages, liabilities, judgments, fines, amounts paid in settlement, expenses and costs of defense (including reasonable attorneys’ fees and witness fees) (collectively, “Losses”) resulting from any demand, claim, action or proceeding brought or initiated by a third party (each a “Third Party Claim”) against any Xxxx Indemnitee(s) to the extent arising from: [****]. The foregoing indemnification shall not apply to the extent that such Losses arise from or relate to any Xxxx Indemnitee’s gross negligence, intentionally harmful misconduct or breach of this Agreement or the Commercial Supply Agreement or to the extent Xxxx has an indemnification obligation pursuant to Section 8.2 for such Losses.
