Common use of Indemnification by Licensor Clause in Contracts

Indemnification by Licensor. Licensor shall (i) indemnify, hold harmless and defend (or at its option settle) any claim or suit against Pumatech, or their officers, directors, agents, and employees (the “Indemnified Parties”) arising from or related to any alleged infringement of any Intellectual Property Right by the Programs or use thereof, and (ii) pay any judgment entered against any Indemnified Party on such claim when due, or any settlement thereof. The following procedures shall apply to any indemnified claim: (a) Licensor shall have sole control of the defense and/or settlement (b) the Indemnified Party must notify Licensor promptly in writing of such claim or suit and give Licensor all information known to it relating thereto, and (c) the Indemnified Party must reasonably cooperate with Licensor in the settlement and/or defense. The Indemnified Party shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Licensor. If all or any part of the Programs are, or in the opinion of Licensor may become, the subject of any claim or suit for infringement of any Intellectual Property Right, Licensor may, and in the event of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shall, at its option and expense, do one of the following: (1) procure for the Indemnified Parties the right to use and distribute the Program or the affected part thereof; (2) replace the Program or affected part with non-infringing programs; or (3) modify the Program or affected part to make it non-infringing. Licensor will have no obligations under this Section to the extent a claim described therein is based upon (a) the combination, operation, or use of the Program with software that was not provided by Licensor, if such claim would have been avoided in the absence of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreement; or (c) use of other than the most recent version of the Programs if use of a more recent version would avoid such infringement.

Indemnification by Licensor. Licensor shall indemnify, defend and hold harmless Licensee and the Company Affiliates, the representatives and agents thereof, and each of the successors and assigns of any of the foregoing (but excluding for the avoidance of doubt any Broker Affiliate or Franchisee or any other sublicensee of Licensee other than a Company Affiliate) (collectively, the “Licensee Indemnified Parties”), from and against any and all Damages suffered by any of the Licensee Indemnified Parties resulting from, arising out of, relating to or incurred with respect to (without duplication of any amounts paid pursuant to Section 7.2 of the Purchase Agreement): (i) indemnify, hold harmless and defend any breach by Licensor of this Agreement (including in respect of any representation or at its option settle) any claim or suit against Pumatechwarranty of Licensor as of the Effective Date, or their officers, directors, agents, and employees (with respect to the “Indemnified Parties”) arising from or related exercise of the Option with respect to any alleged infringement Option Territory, as of any Intellectual Property Right by the Programs or use thereof, and date of license to the extent applicable); (ii) pay any judgment entered third-party claim, suit, demand, investigation, proceeding, arbitration or litigation against any Licensee Indemnified Party on that the use of any Registered Xxxx for the Applicable Registered Services in the Applicable Registered Country violates or infringes the trademark, copyright, right of publicity or privacy or other intellectual property rights of such claim when duethird party except to the extent resulting from, arising out of, relating to or incurred with respect to (x) any use of any Licensed Xxxx by any Person in breach of this Agreement or any settlement thereof. The following procedures shall apply to sublicense, (y) any indemnified claim: combination of any Licensed Xxxx with any other Xxxx or (a) Licensor shall have sole control of the defense and/or settlement (bz) the provision of any service or product other than the Applicable Registered Services in the Applicable Registered Country under the Registered Xxxx corresponding thereto; and (iii) any claim, suit, demand, investigation, proceeding, arbitration or litigation by a third party against any Licensee Indemnified Party must notify resulting from, arising out of, relating to or incurred with respect to the business, operations, conduct, acts or omissions of Licensor, any Licensor promptly Affiliate or any of their agents, Subsidiaries, Affiliates, franchisees or sublicensees conducting business under the Sotheby’s Xxxx in writing connection with any service other than the Authorized Services (which shall not include the business, operations, conduct, acts or omissions of such claim any Licensee Indemnified Party or suit any direct or indirect sublicensee, franchisee, Affiliate or agent of Licensee), and give Licensor all information known to it any matter relating thereto, including (x) any failure of any such Person to comply with any applicable Law and (cy) acts or omissions of any such Person constituting fraud, tortious conduct, unfair trade practices, negligence or willful misconduct, or resulting in damage or destruction of property, injury, death, loss or other damages of any kind, except with respect to all of the foregoing for those Damages for which Licensee has an obligation to indemnify a Licensor Indemnified Party must reasonably cooperate with Licensor in the settlement and/or defense. The Indemnified Party shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Licensor. If all or any part of the Programs are, or in the opinion of Licensor may become, the subject of any claim or suit for infringement of any Intellectual Property Right, Licensor may, and in the event of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shall, at its option and expense, do one of the following: (1) procure for the Indemnified Parties the right to use and distribute the Program or the affected part thereof; (2) replace the Program or affected part with non-infringing programs; or (3) modify the Program or affected part to make it non-infringing. Licensor will have no obligations under this Section pursuant to the extent a claim described therein is based upon terms of clause (ai) the combination, operation, or use of the Program with software that was not provided by Licensor, if such claim would have been avoided in the absence of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreement; or Section 13.1 (c) use of other than the most recent version of the Programs if use of a more recent version would avoid such infringementwithout giving effect to Section 13.3).

Indemnification by Licensor. Licensor shall (i) indemnify, defend and hold Seelos and its Affiliates and Sublicensees and each of their respective agents, employees, officers and directors (all together, the “Seelos Indemnitees”) harmless from and defend against any and all actions, judgments, settlements, liabilities, damages, penalties, fines, losses, costs and expenses (including reasonable attorneys’ fees and expenses) to the extent arising out of any and all Claims related to (a) Licensor’s performance of its obligations or at exercise (by it or its option settleAffiliates) of its or their rights under this Agreement or the Supply Agreement; (b) Licensor’s breach or violation of any applicable Laws in connection with this Agreement or the Supply Agreement; (c) breach by Licensor of its express representations, warranties or covenants set forth in this Agreement or the Supply Agreement; (d) infringement of a Third Party’s intellectual property rights by Captisol or the Captisol-related Licensor Technology as delivered or made available by or for Licensor; (e) any claim Study conducted by or suit against Pumatechfor Licensor or its Affiliates or sublicensees; (g) interactions and communications by Licensor, its Affiliates, sublicensees, contractors or agents with governmental authorities, physicians or other third parties relating to Licensed Products and/or Captisol; or (h) the negligence or willful misconduct of Licensor or its Affiliates or agents or any of their respective officers, directors, agentsmanagers, employees or agents in connection with this Agreement or the Supply Agreement; provided, however, that Licensor’s obligations pursuant to this Section 10.2 shall not apply at all if a Claim clearly arises substantially all from, and employees (the “Indemnified Parties”) arising from or related to any alleged infringement of any Intellectual Property Right by the Programs or use thereof, and (ii) pay any judgment entered against any Indemnified Party on such claim when due, or any settlement thereof. The following procedures otherwise shall not apply to any indemnified claim: (a) Licensor shall have sole control of the defense and/or settlement (b) the Indemnified Party must notify Licensor promptly in writing of such claim or suit and give Licensor all information known to it relating thereto, and (c) the Indemnified Party must reasonably cooperate with Licensor in the settlement and/or defense. The Indemnified Party shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Licensor. If all or any part of the Programs are, or in the opinion of Licensor may become, the subject of any claim or suit for infringement of any Intellectual Property Right, Licensor may, and in the event of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shall, at its option and expense, do one of the following: (1) procure for the Indemnified Parties the right to use and distribute the Program or the affected part thereof; (2) replace the Program or affected part with non-infringing programs; or (3) modify the Program or affected part to make it non-infringing. Licensor will have no obligations under this Section to the extent that a claim described therein is based upon Claim arises from, a Seelos Indemnitee’s breach of applicable law, breach of this Agreement or the Supply Agreement, negligence or willful misconduct or infringement by the combination itself of Captisol with acetaminophen (amodified or not) or by the combination, operation, combination itself of Licensor Know-How as delivered by Licensor with Seelos Background Technology or use Seelos Foreground Technology or modification of the Program with software that was not provided Licensor Know-How as delivered by Licensor, if such claim would have been avoided in the absence of such combination, operation;(b) the use of a Program in a manner not authorized Licensor by this Agreement; or (c) use of other than the most recent version of the Programs if use of a more recent version would avoid such infringementfor Seelos.

Indemnification by Licensor. 8.1 Licensor shall (i) agrees to indemnify, defend and hold harmless Licensee and its directors, officers, employees, affiliates and assigns from and against any losses, liabilities, damages, deficiencies, costs or expenses (including interest, penalties and reasonable attorneys' fees and disbursements) ("Loss") based upon, arising out of, or otherwise due to: 8.1.1 Any breach of any material representation, warranty, covenant or agreement of Licensor contained in this Agreement or in any document or other writing delivered pursuant to this Agreement; and 8.1.2 Facts or circumstances existing on or prior to the License Period which give rise to claims by any third parties against the Licensed Assets, including (but not limited to) any claims arising with respect to use of the Licensed Assets in any manner. 8.2 Licensee agrees to indemnify, defend and hold harmless Licensor and its directors, officers, employees, affiliates, and assigns from and against any Loss based upon, or arising out of or otherwise due to any negligent use of the Licensed Assets in a library of the Licensee and a third party infringement claim resulting from Licensee's use of products other than the Licensed Assets. 8.3 Promptly after receipt by an Indemnified Party of notice of any demand, claim or circumstances which, with the lapse or time, would give rise to a claim or the commencement (or at its option settlethreatened commencement) any claim or suit against Pumatech, or their officers, directors, agents, and employees (the “Indemnified Parties”) arising from or related to any alleged infringement of any Intellectual Property Right by the Programs action, proceeding or use thereofinvestigation (an "Asserted Liability") that may result in a Loss, and (ii) pay any judgment entered against any Indemnified Party on such claim when due, or any settlement thereof. The following procedures shall apply to any indemnified claim: (a) Licensor shall have sole control of the defense and/or settlement (b) the Indemnified Party must notify Licensor promptly shall give notice thereof (the "Claims Notice") to the Indemnifying Party. The Claims Notice shall describe the Asserted Liability in writing of such claim or suit and give Licensor all information known to it relating theretoreasonable detail, and shall indicate the amount (cif stated) of the Loss that has been or may be suffered by the Indemnified Party. 8.4 The Indemnifying Party may elect to compromise or defend, at its own expense and by its own counsel, any Asserted Liability. If the Indemnifying Party elects to compromise or defend such Asserted Liability, it shall, within thirty (30) days (or sooner, if the nature of the Asserted Liability so requires), notify the Indemnified Party must reasonably cooperate with Licensor of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the settlement and/or defensecompromise of, or defense against, such Asserted Liability. The Indemnified Party shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Licensor. If all or any part of the Programs are, or in the opinion of Licensor may become, the subject of any claim or suit for infringement of any Intellectual Property Right, Licensor may, and in the event of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shallelect to participate, at its option and own expense, do one in the defense of such Asserted Liability. If the Indemnifying Party elects not to compromise or defend the Asserted Liability, fails to notify the Indemnified Party of its election as herein provided, contest its obligations to indemnify under this Agreement, or at any time fails to pursue in good faith the resolution of any Asserted Liability, in the sole opinion of the following: (1) procure for Indemnified Party, then the Indemnified Parties the right to use and distribute the Program or the affected part thereof; Party may, upon thirty (230) replace the Program or affected part with non-infringing programs; or (3) modify the Program or affected part to make it non-infringing. Licensor will have no obligations under this Section days' notice to the extent a claim described therein is based upon (a) Indemnifying Party, pay, compromise or defend any such Asserted Liability, which such amount shall then be deducted from and credited to any royalties payable to the combinationIndemnifying Party pursuant to Section 2 hereof. If the Indemnifying Party chooses to defend any claim, operationthe Indemnified Party shall make available to the Indemnifying Party any books, records or use of the Program with software other documents or personnel within its control that was not provided by Licensor, if are necessary or appropriate for such claim would have been avoided in the absence of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreement; or (c) use of other than the most recent version of the Programs if use of a more recent version would avoid such infringementdefense.

Indemnification by Licensor. Licensor shall (i) indemnify, hold harmless and defend (or at its option settle) any claim or suit against Pumatech, or their officers, directors, agents, and employees (the “Indemnified Parties”) arising from or related to any alleged infringement of any Intellectual Property Right by the Programs or use thereof, and (ii) pay any judgment entered against any Indemnified Party on such claim when due, or any settlement thereof. The following procedures shall apply to any indemnified claim: (a) Licensor shall have sole control indemnify, defend and hold harmless Licensee and its shareholders, directors, officers, members, managers, employees, agents and end users, and their respective successors, heirs and assigns, against any and all claims, wherever brought and however denominated, including all damages in connection therewith, arising from any breach of Licensor’s obligations under this Agreement. Licensee shall indemnify, defend and hold harmless Licensor and its shareholders, directors, officers, members, managers, employees and agents, and their respective successors, heirs and assigns, against any and all claims, wherever brought and however denominated, including all damages in connection therewith, arising from (i) any breach of Licensee’s obligations under this Agreement, or (ii) any claim by any end-user of the defense and/or settlement Licensed Software except to the extent such claim results from a breach of Licensor’s obligations hereunder. (b) A Party seeking indemnification hereunder (the “Indemnified Party”) shall give the Party against which the Indemnified Party seeks indemnification hereunder (the “Indemnifying Party”) prompt written notice of any claim with respect to which indemnification obligations apply, but any delay or failure of such notice shall not excuse Indemnifying Party’s indemnification obligations except to the extent that the Indemnifying Party’s legal position is actually prejudiced thereby. The Indemnifying Party shall have the right to assume and control the defense and settlement of any such claim; except that Indemnified Party shall have the right to control, at the Indemnified Party’s expense, the defense and settlement of any such claim if: (i) the Indemnified Party must notify Licensor promptly reasonably determines that there is a conflict of interest between the Indemnifying Party and the Indemnified Party with respect to such claim; (ii) the Indemnifying Party fails to employ counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after the Indemnifying Party’s receipt of notice of the claim; or (iii) in writing the reasonable opinion of counsel to the Indemnified Party, the claim could result in the Indemnified Party becoming subject to injunctive or other non-monetary relief that could have a material adverse effect on the Indemnified Party’s ongoing business. Any Party not controlling the defense shall have the right to participate in the claim at its own expense, but in any event shall cooperate with the controlling Party in the investigation and defense of the claim. (c) If the Indemnifying Party is entitled to, and does, assume and control the defense and settlement of any claim with respect to which its indemnification obligations apply, then the Indemnifying Party shall not settle such claim without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld or suit delayed), unless (i) the sole relief provided in such settlement is monetary in nature and give Licensor all information known to it relating theretoshall be paid in full by the Indemnifying Party, (ii) such settlement does not include any finding or admission of a violation by the Indemnified Party of any applicable laws or Third Party’s rights, and (ciii) such settlement could not reasonably be construed to (A) limit or impair the validity or enforceability of the Licensed Software or Improvements or the Indemnified Party’s rights therein or (B) limit or adversely affect the conduct of the Indemnified Party. Whenever the Indemnified Party must reasonably cooperate controls the defense and settlement of a claim with Licensor in respect to which the Indemnifying Party’s indemnification obligations apply, the Indemnifying Party shall not be liable for any settlement and/or defense. The thereof effected by the Indemnified Party unless the Indemnified Party shall have obtained the Indemnifying Party’s prior written consent to the proposed settlement (which consent shall not be reimbursed for all reasonable out-of-pocket expenses incurred in providing unreasonably withheld or delayed). (d) No liability shall attain against any cooperation requested by Licensor. If all or any part of the Programs areofficer, director, member, agent, or in employee of Licensor; any such liability shall be paid solely from the opinion assets of Licensor may becomeLicensor. (e) IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE FOR ANY INDIRECT, the subject of any claim or suit for infringement of any Intellectual Property RightINCIDENTAL, Licensor mayPUNITIVE, and in the event of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shallSPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING LOSS OF PROFITS, at its option and expenseLOSS OF BUSINESS, do one of the following: (1) procure for the Indemnified Parties the right to use and distribute the Program or the affected part thereof; (2) replace the Program or affected part with nonLOSS OF DATA, LOSS OF ANTICIPATED SAVINGS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT OR THE OPERATION OR USE OF THE LICENSED SOFTWARE, INCLUDING WITHOUT LIMITATION SUCH DAMAGES ARISING FROM DAMAGE TO LICENSEE’S OR END-infringing programs; or (3) modify the Program or affected part to make it non-infringingUSERS’ EQUIPMENT, EVEN IF LICENSOR HAS NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. Licensor will have no obligations under this Section to the extent a claim described therein is based upon (a) the combination, operation, or use of the Program with software that was not provided by Licensor, if such claim would have been avoided in the absence of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreement; or (c) use of other than the most recent version of the Programs if use of a more recent version would avoid such infringementTHESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

Indemnification by Licensor. 8.1 Licensor shall (i) defend, indemnify, and hold harmless Licensee and defend its Affiliates (or at its option settle) any claim or suit against Pumatechother than Licensor), or and their respective employees, officers, directors, agentsagents and representatives (collectively, and employees (the “Licensee Indemnified Parties”) ), harmless from and against any and all losses, costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising from or related to any alleged infringement out of any claim by any third party against any Licensee Indemnified Party that any use of, or access to, the Licensed Intellectual Property Right or Licensed Software by the Programs such Licensee Indemnified Party as expressly authorized under or use thereofcontemplated by these Terms infringes or misappropriates, and as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights of any third party; provided that Licensee gives Licensor (i) prompt written notice of such claim; (ii) pay reasonable authority to control and direct the defense and settlement of such claim; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s expense, in connection with such defense or settlement. Notwithstanding the foregoing, Licensor shall not settle any judgment entered third-party claim against any Licensee Indemnified Party on (A) if such claim when duesettlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in respect of any actual wrongdoing by such Licensee Indemnified Party), or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consent to such settlement. In any settlement thereof. The following procedures shall apply to action for which Licensor provides defense on behalf of any indemnified claim: (a) Licensee Indemnified Party, such Licensee Indemnified Party may participate in such defense at its own expense by counsel of its choice. 8.2 Notwithstanding Section 8.1, Licensor shall have sole control of the defense and/or settlement (b) the Indemnified Party must notify Licensor promptly in writing of such claim no obligation or suit and give Licensor all information known to it relating thereto, and (c) the Indemnified Party must reasonably cooperate with Licensor in the settlement and/or defense. The Indemnified Party shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Licensor. If all or any part of the Programs are, or in the opinion of Licensor may become, the subject of any claim or suit for infringement of any Intellectual Property Right, Licensor may, and in the event of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shall, at its option and expense, do one of the following: (1) procure for the Indemnified Parties the right to use and distribute the Program or the affected part thereof; (2) replace the Program or affected part with non-infringing programs; or (3) modify the Program or affected part to make it non-infringing. Licensor will have no obligations under this Section liability to the extent a claim described therein that the alleged infringement is based upon caused by (ai) the combination, operation, or use of the Program Licensed Intellectual Property, Licensed Software or Licensed Manager Usage with software that was products, services, information, materials, technologies, business methods or processes not furnished by Licensor; (ii) modifications to the Licensed Intellectual Property, Licensed Software or, which modifications are not made by Licensor or its agents; (iii) failure to use updates to the Licensed Intellectual Property, Licensed Software or Website Content provided by Licensor, if such claim would have been avoided provided that updates to the Licensed Intellectual Property and Licensed Software are in all material respects equivalent to, and may be readily substituted for, the absence Software being updated; and provided further that Licensee shall be afforded a reasonable amount of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreementtime to implement any update; or (civ) use of other than the most recent version Licensed Intellectual Property or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”). 8.3 Upon the occurrence of any claim for which indemnity is or may be due under this Section 8, or in the event that Licensor reasonably believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Licensed Intellectual Property, Licensed Software or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter the functionality or operations of the Programs Licensed Intellectual Property or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) if the foregoing options in clause (i) and (ii) are not reasonably available, terminate the license to the affected Licensed Intellectual Property or Licensed Software or cease use of a more recent version would avoid such infringementthe affected Licensed Manager Usage. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and Licensee’s sole remedy for any actual or alleged infringement or misappropriation referred to in Section 8.1.

Indemnification by Licensor. Licensor shall indemnify, defend and hold harmless Licensee and the Company Affiliates, the representatives and agents thereof, and each of the successors and assigns of any of the foregoing (but excluding for the avoidance of doubt any Broker Affiliate or Franchisee or any other sublicensee of Licensee other than a Company Affiliate) (collectively, the "Licensee Indemnified Parties"), from and against any and all Damages suffered by any of the Licensee Indemnified Parties resulting from, arising out of, relating to or incurred with respect to (without duplication of any amounts paid pursuant to Section 7.2 of the Purchase Agreement): (i) indemnify, hold harmless and defend any breach by Licensor of this Agreement (including in respect of any representation or at its option settle) any claim or suit against Pumatechwarranty of Licensor as of the Effective Date, or their officers, directors, agents, and employees (with respect to the “Indemnified Parties”) arising from or related exercise of the Option with respect to any alleged infringement Option Territory, as of any Intellectual Property Right by the Programs or use thereof, and date of license to the extent applicable); (ii) pay any judgment entered third-party claim, suit, demand, investigation, proceeding, arbitration or litigation against any Licensee Indemnified Party on that the use of any Registered Xxxx for the Applicable Registered Services in the Applicable Registered Country violates or infringes the trademark, copyright, right of publicity or privacy or other intellectual property rights of such claim when duethird party except to the extent resulting from, arising out of, relating to or incurred with respect to (x) any use of any Licensed Xxxx by any Person in breach of this Agreement or any settlement thereof. The following procedures shall apply to sublicense, (y) any indemnified claim: combination of any Licensed Xxxx with any other Xxxx or (a) Licensor shall have sole control of the defense and/or settlement (bz) the provision of any service or product other than the Applicable Registered Services in the Applicable Registered Country under the Registered Xxxx corresponding thereto; and (iii) any claim, suit, demand, investigation, proceeding, arbitration or litigation by a third party against any Licensee Indemnified Party must notify resulting from, arising out of, relating to or incurred with respect to the business, operations, conduct, acts or omissions of Licensor, any Licensor promptly Affiliate or any of their agents, Subsidiaries, Affiliates, franchisees or sublicensees conducting business under the Sotheby's Xxxx in writing connection with any service other than the Authorized Services (which shall not include the business, operations, conduct, acts or omissions of such claim any Licensee Indemnified Party or suit any direct or indirect sublicensee, franchisee, Affiliate or agent of Licensee), and give Licensor all information known to it any matter relating thereto, including (x) any failure of any such Person to comply with any applicable Law and (cy) acts or omissions of any such Person constituting fraud, tortious conduct, unfair trade practices, negligence or willful misconduct, or resulting in damage or destruction of property, injury, death, loss or other damages of any kind, except with respect to all of the foregoing for those Damages for which Licensee has an obligation to indemnify a Licensor Indemnified Party must reasonably cooperate with Licensor in the settlement and/or defense. The Indemnified Party shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Licensor. If all or any part of the Programs are, or in the opinion of Licensor may become, the subject of any claim or suit for infringement of any Intellectual Property Right, Licensor may, and in the event of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shall, at its option and expense, do one of the following: (1) procure for the Indemnified Parties the right to use and distribute the Program or the affected part thereof; (2) replace the Program or affected part with non-infringing programs; or (3) modify the Program or affected part to make it non-infringing. Licensor will have no obligations under this Section pursuant to the extent a claim described therein is based upon terms of clause (ai) the combination, operation, or use of the Program with software that was not provided by Licensor, if such claim would have been avoided in the absence of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreement; or Section 13.1 (c) use of other than the most recent version of the Programs if use of a more recent version would avoid such infringementwithout giving effect to Section 13.3).

Indemnification by Licensor. Licensor shall defend, indemnify and hold harmless to the fullest extent permitted by law the Licensee Indemnified Parties and each of them, from and against any and all losses, claims, liabilities, demands, actions, proceedings, judgments of any and all types, including, without limitation, reasonable fees of attorneys, accountants and other experts (collectively, “Losses”), incurred by Licensee Indemnified Parties insofar as they arise out of or are alleged or claimed to arise out of (i) indemnify, hold harmless any activities conducted by Licensor in relation with (i) the Licensed Product including development and defend commercialization activities; (or at its option settleii) Licensors’ enforcement of Licensed Patent Rights in any claim or suit action against Pumatech, or their officers, directors, agents, and employees (the “Indemnified Parties”) arising from or related to any alleged infringement of any Intellectual Property Right a third party that is joined by the Programs or use thereof, Licensee in compliance with Section 8.2.2; and (ii) pay any judgment entered against any Indemnified Party on such claim when duematerial breach by [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, or any settlement thereofMARKED 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. The following procedures shall apply to any indemnified claimLicensor of its obligations under this Agreement, provided, however, that: (a) Licensor shall have sole control not be obligated under this Section 12.1.1 to the extent that the Losses resulted from the negligence or willful misconduct of the defense and/or settlement Licensee, Licensee’s Affiliates, Sub-licensees or Contractors; and (b) Licensee shall have the Indemnified Party must notify Licensor promptly in writing of such claim or suit and give Licensor all information known right to it relating thereto, and (c) the Indemnified Party must reasonably cooperate with Licensor participate in the settlement and/or defense. The Indemnified Party shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Licensor. If all or any part of the Programs are, or in the opinion of Licensor may become, the subject defense of any claim such claim, complaint, suit, proceeding or suit for infringement cause of any Intellectual Property Right, Licensor may, and action referred to in the event this Section 12.1.1 utilizing attorneys of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shallits choice, at its option and own expense, do one provided, however, that Licensor shall have full authority and control to handle any such claim, complaint, suit, proceeding or cause of the following: (1) procure action, including any settlement or other disposition thereof, for the Indemnified Parties the right to use and distribute the Program or the affected part thereof; (2) replace the Program or affected part with non-infringing programs; or (3) modify the Program or affected part to make it non-infringing. Licensor will have no obligations which Licensee seeks indemnification under this Section to the extent a claim described therein is based upon (a) the combination, operation, or use of the Program with software that was not provided by Licensor, if such claim would have been avoided in the absence of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreement; or (c) use of other than the most recent version of the Programs if use of a more recent version would avoid such infringement12.1.1.

Indemnification by Licensor. Licensor shall (i) defend, indemnify, and hold harmless the Licensee and defend the affiliates and Representatives of Licensee (or at its option settle) any claim or suit against Pumatecheach, or their officersa “Licensee Indemnified Party” and, directorscollectively, agents, and employees (the “Licensee Indemnified Parties”) from and against any and all Losses asserted against, incurred, sustained or suffered by a Licensee Indemnified Party as a result of, arising from out of, or related relating to, a claim that the Platform as licensed and delivered to Licensee by Licensor infringes or misappropriates the Intellectual Property of any third-party existing as of the Effective Date (each an “Infringement Claim”); provided, however that Licensor shall have no obligation to Licensee under this Agreement with respect to any alleged infringement of any Intellectual Property Right by the Programs or use thereof, and (ii) pay any judgment entered against any Indemnified Party on such claim when due, or any settlement thereof. The following procedures shall apply to any indemnified claimInfringement Claim arising: (a) Licensor shall have sole control of twenty four (24) months after the defense and/or settlement Effective Date; or (b) to the Indemnified Party must notify extent arising from: (i) Any Licensee Improvements or any modifications to the Platform made by, or on behalf of, Licensee or otherwise at Licensee’s request; (ii) Licensee’s breach of this Agreement; (iii) Licensee’s or its Representative or sublicensees’ use of the Platform or any Licensor promptly Intellectual Property in writing any manner in violation of such claim this Agreement or suit and give Licensor all information known to it relating thereto, associated Documentation; and (civ) the Indemnified Party must reasonably cooperate combination of the Platform and Licensor Intellectual Property with Licensor in the settlement and/or defense. The Indemnified Party shall be reimbursed for all reasonable outany Licensee or third-of-pocket expenses incurred in providing any cooperation requested by Licensorparty software or other Intellectual Property. If all the Platform or any part of the Programs are, or in the opinion of Licensor may become, Intellectual Property becomes the subject of any claim Infringement Claim or suit for infringement of any Intellectual Property Rightinjunction, Licensor may, and in the event of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shall, may (at its option and expenseLicensee’s option), do one of the followingfollowing to mitigate the Losses relating to the Infringement Claim: (1) procure for the Indemnified Parties Licensee (at Licensor’s expense) the right to use and distribute continue using the Program impacted portions of the Platform or the affected part thereofLicensor Intellectual Property; (2) replace or modify the Program impacted portions of the Platform or affected part with Licensor Intellectual Property so that it becomes non-infringing programswithout substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property; or (3) modify the Program if Licensor is unable at commercially reasonable effort or affected part expense to make it non-infringingsuch modifications, then Licensee shall be entitled to terminate this Agreement without further liability to Licensor or elect to continue this Agreement and without the benefit of indemnification as a result of such breach. Licensor will have no obligations under this This Section to the extent a claim described therein is based upon 14.1 (a) the combination, operation, or use of the Program with software that was not provided Indemnification by Licensor, if such ) is Licensee’s sole and exclusive remedy for any claim would have been avoided in that the absence Platform or any Licensor Intellectual Property infringes or misappropriates the Intellectual Property of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreement; or (c) use of other than the most recent version of the Programs if use of a more recent version would avoid such infringementany third party.

Indemnification by Licensor. 8.1 Licensor shall (i) defend, indemnify, and hold harmless Licensee and defend its Affiliates (or at its option settle) any claim or suit against Pumatechother than Licensor), or and their respective employees, officers, directors, agentsagents and representatives (collectively, and employees (the “Licensee Indemnified Parties”) ), harmless from and against any and all losses, costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising from or related to any alleged infringement out of any claim by any third party against any Licensee Indemnified Party that any use of, or access to, the Licensed Intellectual Property Right or Licensed Software by the Programs such Licensee Indemnified Party as expressly authorized under or use thereofcontemplated in this Agreement infringes or misappropriates, and as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights of any third party; provided that Licensee gives Licensor (i) prompt written notice of such claim; (ii) pay reasonable authority to control and direct the defense and settlement of such claim; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s expense, in connection with such defense or settlement. Notwithstanding the foregoing, Licensor shall not settle any judgment entered third-party claim against any Licensee Indemnified Party on (A) if such claim when duesettlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in respect of any actual wrongdoing by such Licensee Indemnified Party), or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consent to such settlement. In any settlement thereof. The following procedures shall apply to action for which Licensor provides defense on behalf of any indemnified claim: (a) Licensee Indemnified Party, such Licensee Indemnified Party may participate in such defense at its own expense by counsel of its choice. 8.2 Notwithstanding Section 8.1, Licensor shall have sole control of the defense and/or settlement (b) the Indemnified Party must notify Licensor promptly in writing of such claim no obligation or suit and give Licensor all information known to it relating thereto, and (c) the Indemnified Party must reasonably cooperate with Licensor in the settlement and/or defense. The Indemnified Party shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Licensor. If all or any part of the Programs are, or in the opinion of Licensor may become, the subject of any claim or suit for infringement of any Intellectual Property Right, Licensor may, and in the event of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shall, at its option and expense, do one of the following: (1) procure for the Indemnified Parties the right to use and distribute the Program or the affected part thereof; (2) replace the Program or affected part with non-infringing programs; or (3) modify the Program or affected part to make it non-infringing. Licensor will have no obligations under this Section liability to the extent a claim described therein that the alleged infringement is based upon caused by (ai) the combination, operation, or use of the Program Licensed Intellectual Property, Licensed Software or Licensed Manager Usage with software that was products, services, information, materials, technologies, business methods or processes not furnished by Licensor; (ii) modifications to the Licensed Intellectual Property, Licensed Software or, which modifications are not made by Licensor or its agents; (iii) failure to use updates to the Licensed Intellectual Property, Licensed Software or Website Content provided by Licensor, if such claim would have been avoided provided that updates to the Licensed Intellectual Property and Licensed Software are in all material respects equivalent to, and may be readily substituted for, the absence Software being updated; and provided further that Licensee shall be afforded a reasonable amount of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreementtime to implement any update; or (civ) use of other than the most recent version Licensed Intellectual Property or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”). 8.3 Upon the occurrence of any claim for which indemnity is or may be due under this Section 8, or in the event that Licensor reasonably believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Licensed Intellectual Property, Licensed Software or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter the functionality or operations of the Programs Licensed Intellectual Property or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) if the foregoing options in clause (i) and (ii) are not reasonably available, terminate the license to the affected Licensed Intellectual Property or Licensed Software or cease use of a more recent version would avoid such infringementthe affected Licensed Manager Usage. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and Licensee’s sole remedy for any actual or alleged infringement or misappropriation referred to in Section 8.1.

Indemnification by Licensor. Licensor shall (i) indemnify, indemnify and hold harmless and defend (or at Licensee, its option settle) any claim or suit against Pumatech, or their officers, directors, agents, employees and employees (the “Indemnified Parties”) Affiliates from any and all liability arising from or related to any alleged infringement out of any Intellectual Property Right third party suit, action, legal proceeding, claim or demand, of whatever kind or character, including claims of trademark or service xxxx infringement or unfair competition, that the use by the Programs or use thereof, and (ii) pay any judgment entered against any Indemnified Party on such claim when due, or any settlement thereof. The following procedures shall apply to any indemnified claim: (a) Licensor shall have sole control Licensee of the defense and/or settlement (b) Licensed Trademarks, as authorized and approved by Licensor pursuant to this Agreement, violates the Indemnified Party must notify Licensor promptly in writing rights of such claim or suit and give Licensor all information known to it relating thereto, and (c) the Indemnified Party must reasonably cooperate with Licensor in the settlement and/or defensethird party. The Indemnified Party shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Licensor. If all or any part of the Programs are, or in the opinion of Licensor may become, the subject of any claim or suit for infringement of any Intellectual Property Right, Licensor may, and in the event of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shall, at its option and expense, do one of the following: (1) procure for the Indemnified Parties the right to use and distribute the Program or the affected part thereof; (2) replace the Program or affected part with non-infringing programs; or (3) modify the Program or affected part to make it non-infringing. Licensor will have no 's obligations under this Section 11.2 shall apply only to those acts that occur during the period during which royalties are due, and only if: (i) Licensee promptly notifies Licensor of any claim giving rise to such liability and fully discloses to Licensor all information relating to such claim; (ii) Licensee provides reasonable cooperation to Licensor in the defense of all such claims, which defense costs and expenses, and to the extent a that Licensee incurs any legal expenses that have been approved in writing by Licensor for providing assistance in the defense of any such claims, shall be Licensor's responsibility; (iii) Licensee neither acts nor fails to act in such manner as may jeopardize or compromise such defense or hinder Licensor in providing such defense; and (iv) the claim described therein is based upon by either (a) a third party licensed by Licensor to use the combination, operationLicensed Trademarks other than under any of the licenses set forth on Schedule 4(l)(i) of the Recapitalization Agreement or Exhibit 2 hereto, or use (b) any other third party whose rights the Specified Employees had Knowledge of as of the Program with software that was Effective Date. The limitations set forth in Section 12 of this Agreement shall not provided by Licensor, if such claim would have been avoided in the absence of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreement; or (c) use of other than the most recent version of the Programs if use of a more recent version would avoid such infringement.apply to this

Indemnification by Licensor. Licensor shall (i) will, at its sole expense, defend, indemnify, and hold harmless Licensee and defend (or at its option settle) any claim or suit against Pumatech, or Affiliates and their respective officers, directors, agentsshareholders or owners, employees, and employees agents (the “Indemnified PartiesLicensee Indemnitees”) arising harmless from and against any and all Third Party claims, suits, proceedings, damages, losses, liabilities, taxes, costs, expenses (including court costs and reasonable attorneys’ fees and expenses) and recoveries (collectively, “Claims”) to the extent that such Claims arise out of, are based on, or related to result from (a) Development of CX-01 or any alleged infringement Product by or on behalf of Licensor or its Affiliates or its or their sublicensees (other than Licensee and its Affiliates), (b) the breach of any Intellectual Property Right of Licensor’s obligations under this Agreement, including Licensor’s representations and warranties, covenants and agreements, or (c) the willful misconduct or negligent acts of Licensor, its Affiliates, or the officers, directors, employees, or agents of Licensor or its Affiliates. The foregoing indemnity obligation will not apply (i) to the extent that (x) the Licensee Indemnitees fail to comply with the indemnification procedures set forth in Section 11.3 and Licensor’s defense of the relevant Claims is prejudiced by such failure or (y) such Claims arise out of or result from the Programs gross negligence or use thereofwillful misconduct of Licensee or its Affiliates, or any related breach by Licensee of its representations, warranties or covenants or any other obligation of Licensee hereunder; or (ii) to Claims for which Licensee has an obligation to indemnify Licensor pursuant to Section 11.2, as to which Claims each Party will indemnify the other to the extent of its respective liability for such Claims. [*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) pay any judgment entered against any Indemnified Party on such claim when due, or any settlement thereof. The following procedures shall apply to any indemnified claim: (a) Licensor shall have sole control of the defense and/or settlement (b) the Indemnified Party must notify Licensor promptly in writing of such claim or suit and give Licensor all information known to it relating thereto, and (c) the Indemnified Party must reasonably cooperate with Licensor in the settlement and/or defense. The Indemnified Party shall would be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Licensor. If all or any part of the Programs are, or in the opinion of Licensor may become, the subject of any claim or suit for infringement of any Intellectual Property Right, Licensor may, and in the event of any adjudication that any Program or any part thereof does infringe or competitively harmful if the use of a Program or any part thereof is enjoined Licensor shall, at its option and expense, do one of the following: (1) procure for the Indemnified Parties the right to use and distribute the Program or the affected part thereof; (2) replace the Program or affected part with non-infringing programs; or (3) modify the Program or affected part to make it non-infringing. Licensor will have no obligations under this Section to the extent a claim described therein is based upon (a) the combination, operation, or use of the Program with software that was not provided by Licensor, if such claim would have been avoided in the absence of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreement; or (c) use of other than the most recent version of the Programs if use of a more recent version would avoid such infringementpublicly disclosed.

Indemnification by Licensor. Licensor shall (i) defend, indemnify, and hold harmless the Licensee and defend the affiliates and Representatives of Licensee (or at its option settle) any claim or suit against Pumatecheach, or their officersa “Licensee Indemnified Party” and, directorscollectively, agents, and employees (the “Licensee Indemnified Parties”) from and against any and all Losses asserted against, incurred, sustained or suffered by a Licensee Indemnified Party as a result of, arising from out of, or related relating to, a claim that the Platform as licensed and delivered to Licensee by Licensor infringes or misappropriates the Intellectual Property of any third-party existing as of the Effective Date (each an “Infringement Claim”); provided, however that Licensor shall have no obligation to Licensee under this Agreement with respect to any alleged infringement of any Intellectual Property Right by the Programs or use thereof, and (ii) pay any judgment entered against any Indemnified Party on such claim when due, or any settlement thereof. The following procedures shall apply to any indemnified claimInfringement Claim arising: (a) Licensor shall have sole control of twenty four (24) months after the defense and/or settlement Effective Date; (b) to the Indemnified Party must notify extent arising from: (i) Any Licensee Improvements or any modifications to the Platform or Escrow Materials made by, or on behalf of, Licensee or otherwise at Licensee’s request; (ii) Licensee’s breach of this Agreement; (iii) Licensee’s or its Representative or sublicensees’ use of the Platform or any Licensor promptly Intellectual Property in writing any manner in violation of such claim this Agreement or suit associated Documentation; and give (iv) the combination of the Platform and Licensor all information known to it relating thereto, and Intellectual Property with any Licensee or third-party software or other Intellectual Property; or (c) after the Indemnified Party must reasonably cooperate with Licensor in the settlement and/or defense. The Indemnified Party shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Licensoroccurrence of a Use Release Event. If all the Platform or any part of the Programs are, or in the opinion of Licensor may become, Intellectual Property becomes the subject of any claim Infringement Claim or suit for infringement of any Intellectual Property Rightinjunction, Licensor may, and in the event of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shall, may (at its option and expensesole option), do one of the followingfollowing to mitigate the Losses relating to the Infringement Claim: (1) procure for the Indemnified Parties Licensee (at Licensor’s expense) the right to use and distribute continue using the Program impacted portions of the Platform or the affected part thereofLicensor Intellectual Property; (2) replace or modify the Program impacted portions of the Platform or affected part with Licensor Intellectual Property so that it becomes non-infringing programswithout substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property; or (3) modify the Program if Licensor is unable at commercially reasonable effort or affected part expense to make it non-infringingsuch modifications, then Licensor shall be entitled to terminate this Agreement without further liability to Licensee. Licensor will have no obligations under this This Section to the extent a claim described therein is based upon 14.1 (a) the combination, operation, or use of the Program with software that was not provided Indemnification by Licensor, if such ) is Licensee’s sole and exclusive remedy for any claim would have been avoided in that the absence Platform or any Licensor Intellectual Property infringes or misappropriates the Intellectual Property of such combination, operation;(b) any third party and Licensor may not exercise any indemnity or similar monetary remedy under the use of a Program in a manner not authorized by this Purchase Agreement; or (c) use of other than the most recent version of the Programs if use of a more recent version would avoid such infringement.

Indemnification by Licensor. Licensor shall (i) indemnify, hold harmless and defend (or at its option settle) any claim or suit against Pumatech, or their officers, directors, agents, and employees (the “Indemnified Parties”) arising from or related to any alleged infringement of any Intellectual Property Right by the Programs or use thereof, and (ii) pay any judgment entered against any Indemnified Party on such claim when due, or any settlement thereof. The following procedures shall apply to any indemnified claim: (a) Licensor shall have sole control of agrees to defend the defense and/or settlement (b) the Indemnified Party must notify Licensor promptly in writing of such claim or suit and give Licensor all information known to it relating thereto, and (c) the Indemnified Party must reasonably cooperate with Licensor in the settlement and/or defense. The Indemnified Party shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Licensor. If all or any part of the Programs are, or in the opinion of Licensor may become, the subject of any claim or suit for infringement of any Intellectual Property Right, Licensor may, and in the event of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shallLicensee Indemnitees, at its option Licensor’s cost and expense, do one and will indemnify and hold harmless the Licensee Indemnitees from and against any and all losses, costs, damages, fees, and expenses (collectively, “Losses”) relating to or in connection with a Third Party claim arising out of (i) any actual or alleged death, personal bodily injury or damage to real or tangible personal property claimed to result, directly or indirectly, from the following: possession, use or consumption of, or treatment with, any Procedure or Product Exploited by or on behalf of (1A) procure for the Indemnified Parties the right Licensor, its Affiliates, licensees or Sublicensees and/or (B) Licensee, its Affiliates and/or Sublicensees (except, with respect to use and distribute the Program or the affected part thereof; (2) replace the Program or affected part with non-infringing programs; or (3) modify the Program or affected part to make it non-infringing. Licensor will have no obligations under this Section Licensee, its Affiliates and/or Sublicensees, to the extent that the claim relates to an Improvement developed by Licensee); (ii) subject to the provisions of Sections 2.2(b) and 8.1(b) hereof, any actual or alleged infringement or unauthorized use or misappropriation of any Patent Right or other Intellectual Property Right of a claim described therein is based upon Third Party with respect to the activities of (aA) the combination, operation, or use of the Program with software that was not provided by Licensor, if such its Affiliates, licensees or Sublicensees and/or (B) Licensee, its Affiliates and/or Sublicensees (except, with respect to Licensee, its Affiliates and/or Sublicensees, to the extent that the claim would have been avoided in the absence relates to an Improvement developed by Licensee); (iii) any breach by Licensor of such combinationits representations, operation;(b) the use of a Program in a manner not authorized by warranties or covenants made under this Agreement; or (civ) use any negligent act or omission or willful misconduct of other than Licensor, its Affiliates, licensees or Sublicensees, or any of their employees, contractors or agents, in performing Licensor’s obligations or exercising Licensor’s rights under this Agreement. In the most recent version event of any such claim against any Licensee Indemnitee, Licensee shall promptly notify Licensor in writing of the Programs if use claim and Licensor shall manage and control, at its sole expense, the defense of the claim and its settlement with counsel reasonably acceptable to the Licensee Indemnitee. The failure to timely give a claim notice shall not relieve Licensor of its obligations hereunder, except and only to the extent that such failure shall result in any material prejudice to Licensor in defense of the claim. Licensor shall not, without the prior written consent of the Licensee Indemnitee, consent to the entry of any judgment or enter into any settlement or compromise which does not include, as an unconditional term thereof (i.e., there being no requirement that the Licensee Indemnitee pay any amount of money, give any other consideration or agree to any restriction or limitation), the giving by the claimant or plaintiff to the Licensee Indemnitee of a more recent version would avoid release, in form and substance satisfactory to the Licensee Indemnitee from all liability in respect of the claim. The relevant Licensee Indemnitees shall cooperate with Licensor and may, at such infringementLicensee Indemnitees’ option and expense, be represented in any such action or proceeding. Licensor shall not be liable for any settlements, litigation costs or expenses incurred by any Licensee Indemnitees without Licensor’s written authorization. (i) Notwithstanding the foregoing, the provisions of Section 8.1(a)(ii) with respect to claims that relate to jurisdiction outside the United States shall be subject to the provisions of this paragraph (b). (ii) In the event that Licensee seeks to Exploit any Licensor IP in a jurisdiction outside the United States, it shall give Licensor written notice thereof (the “Licensee Foreign Exploitation Notice”). (iii) Upon receipt of a Licensee Foreign Exploitation Notice, Licensor shall have the right, at its expense, to undertake a Freedom-To-Operate Analysis with respect to such jurisdiction. In the event that, following such Freedom-To-Operate Analysis or otherwise, Licensor determines that it is willing to be bound by the provisions of Section 8.1(a)(ii) with respect to such jurisdiction, it shall give written notice thereof to Licensee. Thereupon, the provisions of Sections 8.1(a)(ii) and 8.2(b) shall apply with respect to such jurisdiction and the provisions of Section 4.3(c) shall not apply with respect to such jurisdiction. In the event that, following such Freedom-To-Operate Analysis or otherwise, Licensor determines that it is not willing to be bound by the provisions of Section 8.1(a)(ii) with respect to such jurisdiction, it shall given written notice thereof to Licensee. Thereupon or in the event that a notice is not received by Licensee from Licensor within forty-five (45) days following the date of the Licensee Foreign Exploitation Notice, the provisions of Section 8.1(a)(ii) and 8.2(b) shall not apply with respect to such jurisdiction and the provisions of Section 4.3(c) shall apply with respect to such jurisdiction.