Common use of By Xxxxxx Clause in Contracts

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. 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) Xxxxxx reserves the Service right to terminate this Agreement in the event there is: (A) a significant and material negative change in the employment relationship based upon the conduct of directors of the Company which conduct would be considered actionable in either a criminal, administrative or civil forum; (B) any material breach by Company of this Agreement; (C) a significant and material negative change in Xxxxxx'x authority, duties or responsibilities as the Chief Executive Officer and Administrator of the Company or any portion thereof) was modified other action by Customer Company that results in substantial diminution in Xxxxxx'x authority, duties 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; responsibilities (ii) if the Service is used in combination with any other service, device, software or products, including, without limitation, Third Party Serviceshaving any other executive employee of the Company report directly to Company’s Board of Directors rather than Xxxxxx); (D) a requirement that Xxxxxx relocate his place of employment more than thirty miles; (E) a significant and material reduction in compensation; or (F) the cessation of the Company’s operations. Xxxxxx may terminate this Agreement on any of these grounds by giving at least thirty (30) days' prior written notice of termination to Company, 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 prejudice to any events giving rise other remedy to Customer’s indemnity obligations under Section 16.1 above. Without derogating from the foregoing defense and indemnification obligationwhich Xxxxxx may be entitled either at law, if xxxxxx.xxx believes that the Servicein equity, or any part thereofunder this Agreement. The notice of termination required by this Section 5(b)(i) shall specify the grounds for the termination, may so infringeshall be supported by a statement of relevant facts, then xxxxxx.xxx may in its sole discretion: and shall be provided to Company within ninety (a90) obtain (at no additional cost to you) days of the initial existence of such grounds. Upon receipt of such notice from Xxxxxx, Company shall have the right to continue remedy the grounds during the notice period. If Company fails to use remedy the Service; (b) replace or modify grounds during the allegedly infringing part notice period, then this Agreement shall terminate at the end of the Service so that it becomes non-infringing while giving substantially equivalent performance; or notice period, and Xxxxxx shall be entitled to the Severance Benefit defined in this Agreement. (cii) if xxxxxx.xxx determines During the Term of this Agreement, Xxxxxx reserves the right to terminate this Agreement in the event that the foregoing remedies are not reasonably availableremaining Term of this Agreement, then xxxxxx.xxx may require that use together with any extensions hereto by written agreement of the parties, drops to eighteen (allegedly18) infringing Service (months or part thereof) less. Xxxxxx shall cease and thereafter be entitled to the Severance Benefit defined 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 16.2this Agreement.

By Xxxxxx. xxx. xxxxxx.xxx hereby agrees to defend CustomerFrom and after the Closing, its affiliatesXxxxxx shall indemnify, save and hold harmless the Berkshire Parties and their Affiliates, successors and permitted assigns and each of the foregoing’s respective directors, officers, directorsemployees and agents (collectively, and employees, in the “Berkshire Indemnified Parties”) from and against any third and all Damages suffered or incurred by any such party claim to the extent arising out of or demand against Customerresulting from, 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 ifwithout duplication: (i) the Service (breach of any representations and warranties in this Agreement of Xxxxxx without giving any effect to any materiality or any portion thereof) was modified by Customer or any of its Users or any third partymaterial adverse effect qualifications therein, but solely to the extent the IP Claim would have been avoided by not doing such modification; (ii) the breach of any covenant or agreement in this Agreement to be performed by Xxxxxx or the breach of any covenant or agreement in this Agreement to be performed by the Company or, if not the Service is used in combination with any other serviceCompany, device, software the Station Subsidiary on or products, including, without limitation, Third Party Services, but solely prior to the extent that such IP Claim would have been avoided without such combination; and/or Closing (other than a breach of Section 6.09), or (iii) the failure by Xxxxxx or its Affiliates to pay or perform the Excluded Liabilities on a timely basis; provided that, Xxxxxx shall not have any IP Claim arising or related to, the Customer Data or obligation hereunder with respect to any events giving rise breach set forth in (i) or (ii) above unless the Berkshire Indemnified Parties have made a claim for indemnification pursuant to Customer’s indemnity obligations under Section 16.1 above. Without derogating from 10.02(c) (x) with respect to a breach of a representation and warranty, prior to the foregoing defense and indemnification obligationexpiration, if xxxxxx.xxx believes that any, of such representation or warranty as set forth in Section 10.01, (y) with respect to a breach of a covenant or agreement to be performed on or prior to the ServiceClosing, prior to the Survival End Date (other than the covenants and agreements set forth in Section 6.08, which shall expire on the Closing Date), and (z) with respect to a breach of a covenant or any part thereofagreement to be performed after the Closing, may so infringe, then xxxxxx.xxx may in its sole discretion: (a) obtain (at no additional cost during the one-year period immediately following the date on which such covenant or agreement is 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 16.2be performed.

By Xxxxxx. xxx. xxxxxx.xxx Xxxxxx hereby agrees to defend Customerrepresents, its affiliateswarrants and covenants as follows: (a) Xxxxxx is a corporation duly organized, officers, directors, validly existing and employees, in and against any third party claim or demand against Customer, alleging that Customer’s authorized use good standing under the laws of the Service infringes or constitutes misappropriation state of any third party’s copyrightDelaware. (b) The execution, trademark or registered US patent (the “IP Claim”), delivery and we will indemnify Customer and hold Customer harmless against any damages and costs finally awarded on such IP Claim performance of this Agreement 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: Xxxxxx (i) the Service (or any portion thereof) was modified by Customer or any of are within its Users or any third partycorporate powers, 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 duly authorized by all necessary corporate action on Xxxxxx’x part, and (iii) do not and shall not contravene or constitute a default under any IP Claim arising law or related toregulation, the Customer Data any judgment decree 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 Serviceorder, or any part thereofcontract, may so infringe, then xxxxxx.xxx may in its sole discretion: (a) obtain (at no additional cost agreement or other undertaking applicable to you) Xxxxxx or the right to continue to use the Service; (b) replace or modify the allegedly infringing part of the Service so that it becomes nonXxxxxx-infringing while giving substantially equivalent performance; or Xxxx Agreement IP. (c) if xxxxxx.xxx determines that Xxxxxx has the foregoing remedies are not reasonably available, then xxxxxx.xxx may require that use full right and authority to grant (and/or confirm the grant of) the rights and licenses granted (and/or confirmed) by Xxxxxx under Section 2.2 to Xxxx herein. (d) To the best of Xxxxxx’x knowledge as of the (allegedly) infringing Service (or part thereof) shall cease and in such an eventEffective Date, Customer shall receive a prorated refund of any Subscription Fees paid except for the unused portion Litigation and the Chapter 11 Case, there are no actions, suits, investigations, claims or proceedings pending or threatened against Xxxxxx relating to the Xxxxxx-Xxxx Agreement IP or other Xxxxxx Licensed IP. (e) Aside from the Development and Supply Agreement (which, among other things, amends and restates the Xxxxxx-Xxxx Agreement) and this Agreement, there are no agreements between Xxxx and Xxxxxx as of the Subscription Term. THIS SECTION 16.2Effective Date with respect to FOSSL Technology (other than the NDA) 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 this Agreement. (f) Aside from the Development and Supply Agreement, there are no amendments or modifications to the Xxxxxx-Xxxx Agreement. (g) Xxxxxx agrees not to amend the Cross License Agreement Between Intuitive and Xxxxxx of even date herewith in a way that would (i) terminate or rescind the licenses granted to Xxxx in Section 2.2(b) of this Agreement, or (ii) conflict with the provisions in Article 5 of this Agreement or the patent enforcement provisions of the Development and Supply Agreement, or (iii) restrict or prohibit Xxxx from developing or manufacturing products for Intuitive under, or otherwise performing its obligations under, the Intuitive-Xxxx Agreement.

By Xxxxxx. xxx. xxxxxx.xxx Xxxxxx hereby agrees to defend Customerrepresents, its affiliateswarrants and covenants as follows: (a) Xxxxxx is a corporation duly organized, officers, directors, validly existing and employees, in and against any third party claim or demand against Customer, alleging that Customer’s authorized use good standing under the laws of the Service infringes or constitutes misappropriation state of any third party’s copyrightDelaware. (b) The execution, trademark or registered US patent (the “IP Claim”), delivery and we will indemnify Customer and hold Customer harmless against any damages and costs finally awarded on such IP Claim performance of this Agreement 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: Xxxxxx (i) the Service (or any portion thereof) was modified by Customer or any of are within its Users or any third partycorporate powers, 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 duly authorized by all necessary corporate action on Xxxxxx’x part, and (iii) do not and shall not contravene or constitute a default under any IP Claim arising law or related toregulation, the Customer Data any judgment decree 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 Serviceorder, or any part thereofcontract, may so infringe, then xxxxxx.xxx may in its sole discretion: (a) obtain (at no additional cost agreement or other undertaking applicable to you) Xxxxxx or the right to continue to use the Service; (b) replace or modify the allegedly infringing part of the Service so that it becomes nonXxxxxx-infringing while giving substantially equivalent performance; or Xxxx Agreement IP. (c) if xxxxxx.xxx determines that Xxxxxx has the foregoing remedies are not reasonably available, then xxxxxx.xxx may require that use full right and authority to grant (and/or confirm the grant of) the rights and licenses granted (and/or confirmed) by Xxxxxx under Section 2.2 to Xxxx herein. (d) To the best of Xxxxxx’x knowledge as of the (allegedly) infringing Service (or part thereof) shall cease and in such an eventEffective Date, Customer shall receive a prorated refund of any Subscription Fees paid except for the unused portion Litigation and the Chapter 11 Case, there are no actions, suits, investigations, claims or proceedings pending or threatened against Xxxxxx relating to the Xxxxxx-Xxxx Agreement IP or other Xxxxxx Licensed IP. (e) Aside from the Development and Supply Agreement (which, among other things, amends and restates the Xxxxxx-Xxxx Agreement) and this Agreement, there are no agreements between Xxxx and Xxxxxx as of the Subscription TermEffective Date with respect to FOSSL Technology (other CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. THIS SECTION 16.2than the NDA) 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 this Agreement. (f) Aside from the Development and Supply Agreement, there are no amendments or modifications to the Xxxxxx-Xxxx Agreement. (g) Xxxxxx agrees not to amend the Cross License Agreement Between Intuitive and Xxxxxx of even date herewith in a way that would (i) terminate or rescind the licenses granted to Xxxx in Section 2.2(b) of this Agreement, or (ii) conflict with the provisions in Article 5 of this Agreement or the patent enforcement provisions of the Development and Supply Agreement, or (iii) restrict or prohibit Xxxx from developing or manufacturing products for Intuitive under, or otherwise performing its obligations under, the Intuitive-Xxxx Agreement.