Common use of Claims Asserting Rights to EPN Clause in Contracts

Claims Asserting Rights to EPN. 5.1 If a third party asserts against Licensor, any Founder, any Fellow EPN Content Participant or any Adopter, or any of its or their Affiliates (each, an “Alleged Infringer”) any claim that its intellectual property right is infringed or misappropriated by EPN Encoding in connection with Other EPN Eligible Broadcast Television (an “EPN Claim”), then: (a) EPN Content Participant, on its own or with other Fellow EPN Content Participants, shall promptly and in good faith, after receiving notice from any Alleged Infringer of an EPN Claim, endeavor to negotiate a license with such third party enabling the continued licensing and use of EPN Encoding in connection with Other EPN Eligible Broadcast Television by Fellow EPN Content Participants and Adopters and shall pay any and all applicable license or other fees for such past and continued licensing by Licensor or use of EPN Encoding in connection with Other EPN Eligible Broadcast Television by any Alleged Infringer and any Adopter. Licensor will provide reasonable cooperation to EPN Content Participant, and any other Fellow EPN Content Participants, with respect to such negotiations. (b) Notwithstanding any other terms or condition of the Agreement, if EPN Content Participant and other Fellow EPN Content Participants are unwilling or unable to negotiate the license described in Section 5.1(a), Licensor, on its own initiative, can, or, at the request of EPN Content Participant and such other Fellow EPN Content Participants, shall, (i) delete EPN from the Specification without utilizing the procedures set forth in Section 3.7 of the Agreement and/or (ii) terminate all EPN Addenda then in effect. (c) EPN Content Participant is jointly and severally responsible with each other Fellow EPN Content Participant (each, an “Indemnifying Party”) for indemnifying and holding harmless Licensor, the Founders, Adopters and each of its or their Affiliates (each, an “Indemnified Party”), and, at the Indemnified Party’s election, defending the Indemnified Party, from and against any and all losses, deficiencies, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses), claims, suits and actions with respect to any EPN Claim (“Costs or Actions”). In the event that any Indemnified Party elects to have an Indemnifying Party defend it, (i) the Indemnified Party will so notify the Indemnifying Party in writing; (ii) the Indemnified Party shall have the right to approve the Indemnifying Party's counsel, which approval shall not unreasonably be withheld, and to obtain its own counsel at the Indemnified Party’s own expense; and (iii) the Indemnifying Party shall obtain the approval of the Indemnified Party before entering into any settlement or compromise that would impose any liability or obligation on the Indemnified Party, which approval shall not be unreasonably withheld. If any Cost or Action is asserted against the Indemnified Party in respect of which the Indemnified Party proposes to demand indemnification from the Indemnifying Party pursuant to this Section 5.1(c), the Indemnified Party will promptly notify the Indemnifying Party in writing. No failure of the Indemnified Party to so notify the Indemnifying Party shall relieve the Indemnifying Party from the obligation to indemnify the Indemnified Party unless and to the extent the Indemnifying Party is actually prejudiced by such failure. In the event that an Indemnified Party elects to defend itself, EPN Content Participant, and each other Fellow EPN Content Participant, shall have the right to participate in the defense and to approve any settlement or compromise that would impose any liability or obligation on EPN Content Participant or such other Fellow EPN Content Participants, which approval shall not be unreasonably withheld. Licensor and the Founders and EPN Content Participant agree to cooperate with each other in connection with the defense of any EPN Claim. 5.2 Licensor hereby represents that, in selecting the settings for EPN Encoding, it has used no less than the same degree of care that it has used in selecting the settings for the encoding of comparable protection capabilities provided under the Specification.

Claims Asserting Rights to EPN. 5.1 If a third party asserts against Licensor, any Founder, any Fellow EPN Content Participant or any Adopter, or any of its or their Affiliates (each, an “Alleged Infringer”) any claim that its intellectual property right is infringed or misappropriated by EPN Encoding in connection with Other EPN Eligible Broadcast Television (an “EPN Claim”), then: (a) EPN Content Participant, on its own or with other Fellow EPN Content Participants, shall promptly and in good faith, after receiving notice from any Alleged Infringer of an EPN Claim, endeavor to negotiate a license with such third party enabling the continued licensing and use of EPN Encoding in connection with Other EPN Eligible Broadcast Television by Fellow EPN Content Participants and Adopters and shall pay any and all applicable license or other fees for such past and continued licensing by Licensor or use of EPN Encoding in connection with Other EPN Eligible Broadcast Television by any Alleged Infringer and any Adopter. Licensor will provide reasonable cooperation to EPN Content Participant, and any other Fellow EPN Content Participants, with respect to such negotiations. (b) Notwithstanding any other terms or condition of the Agreement, if EPN Content Participant and other Fellow EPN Content Participants are unwilling or unable to negotiate the license described in Section 5.1(a), Licensor, on its own initiative, can, or, at the request of EPN Content Participant and such other Fellow EPN Content Participants, shall, (i) delete EPN from the Specification without utilizing the procedures set forth in Section 3.7 of the Agreement and/or (ii) terminate all EPN Addenda then in effect. (c) EPN Content Participant is jointly and severally responsible with each other Fellow EPN Content Participant (each, an “Indemnifying Party”) for indemnifying and holding harmless Licensor, the Founders, Adopters and each of its or their Affiliates (each, an “Indemnified Party”), and, at the Indemnified Party’s election, defending the Indemnified Party, from and against any and all losses, deficiencies, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses), claims, suits and actions with respect to any EPN Claim (“Costs or Actions”). In the event that any Indemnified Party elects to have an Indemnifying Party defend it, (i) the Indemnified Party will so notify the Indemnifying Party in writing; (ii) the Indemnified Party shall have the right to approve the Indemnifying Party's counsel, which approval shall not unreasonably be withheld, and to obtain its own counsel Deleted: July 2010 at the Indemnified Party’s own expense; and (iii) the Indemnifying Party shall obtain the approval of the Indemnified Party before entering into any settlement or compromise that would impose any liability or obligation on the Indemnified Party, which approval shall not be unreasonably withheld. If any Cost or Action is asserted against the Indemnified Party in respect of which the Indemnified Party proposes to demand indemnification from the Indemnifying Party pursuant to this Section 5.1(c), the Indemnified Party will promptly notify the Indemnifying Party in writing. No failure of the Indemnified Party to so notify the Indemnifying Party shall relieve the Indemnifying Party from the obligation to indemnify the Indemnified Party unless and to the extent the Indemnifying Party is actually prejudiced by such failure. In the event that an Indemnified Party elects to defend itself, EPN Content Participant, and each other Fellow EPN Content Participant, shall have the right to participate in the defense and to approve any settlement or compromise that would impose any liability or obligation on EPN Content Participant or such other Fellow EPN Content Participants, which approval shall not be unreasonably withheld. Licensor and the Founders and EPN Content Participant agree to cooperate with each other in connection with the defense of any EPN Claim. 5.2 Licensor hereby represents that, in selecting the settings for EPN Encoding, it has used no less than the same degree of care that it has used in selecting the settings for the encoding of comparable protection capabilities provided under the Specification.

Claims Asserting Rights to EPN. 5.1 If a third party asserts against Licensor, any Founder, any Fellow EPN Content Participant or any Adopter, or any of its or their Affiliates (each, an “Alleged Infringer”) any claim that its intellectual property right is infringed or misappropriated by EPN Encoding in connection with Other EPN Eligible Broadcast Television Non-Conditional Access Delivery (an “EPN Claim”), then: : □ (a) EPN Content Participant, on its own or with other Fellow EPN Content Participants, shall promptly and in good faith, after receiving notice from any Alleged Infringer of an EPN Claim, endeavor to negotiate a license with such third party enabling the continued licensing and use of EPN Encoding in connection with Other EPN Eligible Broadcast Television Non-Conditional Access Delivery by Fellow EPN Content Participants and Adopters and shall pay any and all applicable license or other fees for such past and continued licensing by Licensor or use of EPN Encoding in connection with Other EPN Eligible Broadcast Television Non-Conditional Access Delivery by any Alleged Infringer and any Adopter. Licensor will provide reasonable cooperation to EPN Content Participant, and any other Fellow EPN Content Participants, with respect to such negotiations. . □ (b) Notwithstanding any other terms term or condition of the Agreement, if EPN Content Participant and other Fellow EPN Content Participants are unwilling or unable to negotiate the license described in Section 5.1(a), Licensor, on its own initiative, can, or, at the request of EPN Content Participant and such other Fellow EPN Content Participants, shall, (i) delete EPN from the Specification without utilizing the procedures set forth in Section 3.7 of the Agreement and/or (ii) terminate all EPN Addenda then in effect. . □ (c) EPN Content Participant is jointly and severally responsible with each other Fellow EPN Content Participant (each, an “Indemnifying Party”) for indemnifying and holding harmless Licensor, the Founders, Adopters and each of its or their Affiliates (each, an “Indemnified Party”), and, at the Indemnified Party’s election, defending the Indemnified Party, from and against any and all losses, deficiencies, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses), claims, suits and actions with respect to any EPN Claim (“Costs or Actions”). In the event that any Indemnified Party elects to have an Indemnifying Party defend it, (i) the Indemnified Party will so notify the Indemnifying Party in writing; (ii) the Indemnified Party shall have the right to approve the Indemnifying Party's counsel, which approval shall not unreasonably be withheld, and to obtain its own counsel at the Indemnified Party’s own expense; and (iii) the Indemnifying Party shall obtain the approval of the Indemnified Party before entering into any settlement or compromise that would impose any liability or obligation on the Indemnified Party, which approval shall not be unreasonably withheld. If any Cost or Action is asserted against the Indemnified Party in respect of which the Indemnified Party proposes to demand indemnification from the Indemnifying Party pursuant to this Section 5.1(c), the Indemnified Party will promptly notify the Indemnifying Party in writing. No failure of the Indemnified Party to so notify the Indemnifying Party shall relieve the Indemnifying Party from the obligation to indemnify the Indemnified Party unless and to the extent the Indemnifying Party is actually prejudiced by such failure. In the event that an Indemnified Party elects to defend itself, EPN Content Participant, and each other Fellow EPN Content Participant, shall have the right to participate in the defense and to approve any settlement or compromise that would impose any liability or obligation on EPN Content Participant or such other Fellow EPN Content Participants, which approval shall not be unreasonably withheld. Licensor and the Founders and EPN Content Participant agree to cooperate with each other in connection with the defense of any EPN Claim. 5.2 . 1 Licensor hereby represents that, in selecting the settings for EPN Encoding, it has used no less than the same degree of care that it has used in selecting the settings for the encoding of comparable protection capabilities provided under the Specification.