Copyright Infringement Contractor shall also indemnify, defend and hold harmless all Indemnitees from all suits or claims for infringement of the patent rights, copyright, trade secret, trade name, trademark, service xxxx, or any other proprietary right of any person or persons in consequence of the use by the City, or any of its boards, commissions, officers, or employees of articles, work or deliverables supplied in the performance of Services. Infringement of patent rights, copyrights, or other proprietary rights in the performance of this Agreement, if not the basis for indemnification under the law, shall nevertheless be considered a material breach of contract.
Infringement 9.1 In the event that LICENSEE learns of the substantial infringement of any Licensed Patent Rights under this Agreement, LICENSEE will promptly provide LICENSORS with notice and reasonable evidence of such infringement (“Infringement Notice”). During the period and in a jurisdiction where LICENSEE has exclusive rights under this Agreement, no party will notify a third party, including the infringer, of the infringement without first obtaining consent of the other parties, which consent will not be unreasonably withheld. All parties will use diligent efforts, in cooperation with each other, to terminate such infringement without litigation. 9.2 If the infringing activity of potential commercial significance has not been abated within [***] following the effective date of the Infringement Notice, LICENSEE may institute suit for patent infringement against the infringer. LICENSEE may not join REGENTS or UNIVERSITY OF VIENNA in a suit initiated by LICENSEE without LICENSORS’ respective prior written consent. If, in a suit initiated by LICENSEE, either or both LICENSORS are involuntarily joined other than by LICENSEE, LICENSEE will pay the costs incurred by LICENSORS arising out of such suit, including but not limited to, any legal fees of counsel that LICENSORS select and retain to represent them in the suit. If, within one hundred and eighty (180) days following the effective date of the Infringement Notice, the infringing activity of potential commercial significance has not been abated and if LICENSEE has not brought suit against the infringer, LICENSORS may institute suit for patent infringement against the infringer. If LICENSORS institute such suit, LICENSEE may not join such suit without LICENSORS’ consent and may not thereafter commence suit against the infringer for the acts of infringement that are the subject of LICENSOR’S suit or any judgment rendered in that suit. 9.3 Any recovery or settlement received in connection with such suit will belong to the party that brings the suit. If such suit is brought jointly by LICENSORS and LICENSEE and the parties all participated, any recovery or settlement will be allocated in the following order: a) equally to cover any unreimbursed litigation costs each incurred, and b) any remaining amount shared jointly by the parties in proportion to the share of expenses paid by each party, but in no event will the LICENSORS’ share be less than [***] of such remaining amount to each LICENSOR if either one is or both LICENSORS are a party. 9.4 All parties will cooperate with each other in litigation instituted hereunder but at the expense of the party on account of whom suit is brought. Such litigation will be controlled by the party bringing the action, except that LICENSORS may be represented by counsel of its choice in any suit brought by LICENSEE. 9.5 Any agreement made by LICENSEE for the purposes of settling litigation or other dispute shall comply with the requirements of Section 3.2 of this Agreement.