Common use of INDEMNIFICATION FOR INFRINGEMENT Clause in Contracts

INDEMNIFICATION FOR INFRINGEMENT. 9.1 Portable warrants to Customer that the Licensed Programs do not infringe any patent issued in the United States or a European Union country, or any trade secret, copyright, or other proprietary rights. As Customer's exclusive remedy for breach of this warranty and Portable's entire liability for infringement, Portable agrees to indemnify and hold Customer harmless with respect to any suit, claim, or proceeding brought against Customer alleging that Customer's permitted use of the Licensed Programs under this Agreement constitutes an infringement of any patent issued in the United States or a European Union country, or any trade secret, copyright, or other proprietary right. Portable shall defend Customer against any such suit, claim, or proceeding, and pay all litigation costs and reasonable attorneys' fees incurred in connection with such suit, claim or proceeding, and all settlement payments and damages awarded therein, provided that Portable is notified in writing within thirty (30) days of any such suit, claim or proceeding, Customer tenders the control of any such claim or proceeding to Portable, and Customer cooperates with Portable in the defense or settlement of same. 9.2 Upon notice of alleged infringement or if in Portable's opinion such a claim is likely, Portable shall have the right, at its option and expense, either: (a) to procure for Customer the right to continue using the Licensed Programs; or (b) to replace or modify the Licensed Programs so that they provide substantially the same, or greater, functionality and performance than the infringing Licensed Program, but are no longer subject to a claim or infringement. If, in Portable's opinion, none of the options above are reasonably available, Customer's sole and exclusive remedy shall be to return the infringing Licensed Programs to Portable in exchange for a refund of the price that Customer paid to Portable for such Licensed Programs, less reasonable amortization pro-rated over a forty-eight (48) month term from the date the infringing Licensed Programs are shipped to Customer. Portable shall not have any obligation under this Section: (a) to the extent the claim arises from a modification of the Licensed Program other than by or on behalf of Portable or from Customer's use of the Licensed Program in combination with other non-Portable software, equipment or devices; or (b) if Portable has provided Customer with a non-infringing version of the Licensed Programs (that provide substantially the same, or greater, functionality and performance than the infringing Licensed Program) and Customer does not promptly replace all copies of the infringing version of the Licensed Programs with the non-infringing version.

INDEMNIFICATION FOR INFRINGEMENT. 9.1 Portable warrants to Numerical Technologies shall, at its expense, defend or settle any claim, action or allegation brought against Customer that the Licensed Programs do not infringe Software infringes any patent issued in the United States or a European Union country, or any trade secret, copyright, trade secret or other proprietary rightstrademark right of any third party and shall pay any final judgments awarded or settlements entered into; provided that Customer gives prompt written notice to Numerical Technologies of any such claim, action or allegation of infringement and gives Numerical Technologies the authority to proceed as contemplated herein. As Customer's Numerical Technologies will have the exclusive remedy for breach right to defend any such claim, action or allegation and make settlements thereof at its own discretion, and Customer may not settle or compromise such claim, action or allegation, except with prior written consent of this warranty Numerical Technologies. Customer shall give such assistance and Portable's entire liability for information as Numerical Technologies may reasonably require to settle or oppose such claims. In the event any such infringement, Portable agrees to indemnify and hold Customer harmless with respect to any suit, claim, action or proceeding allegation is brought against Customer alleging that Customer's permitted use of the Licensed Programs under this Agreement constitutes an infringement of any patent issued in the United States or a European Union countrythreatened, or any trade secret, copyright, or other proprietary right. Portable shall defend Customer against any such suit, claim, or proceeding, and pay all litigation costs and reasonable attorneys' fees incurred in connection with such suit, claim or proceeding, and all settlement payments and damages awarded therein, provided that Portable is notified in writing within thirty (30) days of any such suit, claim or proceeding, Customer tenders the control of any such claim or proceeding to Portable, and Customer cooperates with Portable in the defense or settlement of same. 9.2 Upon notice of alleged infringement or if in Portable's opinion such a claim is likely, Portable shall have the rightNumerical Technologies may, at its sole option and expense, either: : (a) to procure for Customer the right to continue using Use of the Licensed ProgramsSoftware or infringing part thereof; or or (b) to modify or amend the Software or infringing part thereof, or replace the Software or modify the Licensed Programs so that they provide infringing part thereof with other software having substantially the samesame or better capabilities; or, or greater, functionality and performance than the infringing Licensed Program, but are no longer subject to a claim or infringement. If, in Portable's opinion, none if neither of the options above are reasonably availableforegoing is commercially practicable, (c) terminate this Agreement and repay to Customer a portion, Customer's sole and exclusive remedy shall be to return the infringing Licensed Programs to Portable in exchange for a refund if any, of the price License Fee equal to the amount paid by Customer less one-thirty-sixth (1/36) thereof for each month or portion thereof that this Agreement has been in effect. Numerical Technologies and Customer paid will then be released from any further obligation to Portable the other under this Agreement, except for the obligations of indemnification provided for above and such Licensed Programs, less reasonable amortization pro-rated over a forty-eight (48) month term from the date the infringing Licensed Programs are shipped to Customerother obligations that survive termination. Portable The foregoing obligations shall not have any obligation under this Section: (a) apply to the extent the claim infringement arises from as a modification result of modifications to the Licensed Program Software made by any party other than by or on behalf of Portable or from Customer's use of the Licensed Program in combination with other non-Portable softwareNumerical Technologies. THE FOREGOING STATES THE ENTIRE LIABILITY OF NUMERICAL TECHNOLOGIES WITH RESPECT TO INFRINGEMENT OF ANY PATENT, equipment or devices; or (b) if Portable has provided Customer with a non-infringing version of the Licensed Programs (that provide substantially the sameCOPYRIGHT, or greater, functionality and performance than the infringing Licensed Program) and Customer does not promptly replace all copies of the infringing version of the Licensed Programs with the non-infringing versionTRADE SECRET OR OTHER PROPRIETARY RIGHT.

INDEMNIFICATION FOR INFRINGEMENT. 9.1 Portable Concur warrants to Customer that the Licensed Programs do not infringe any patent issued in the United States or a European Union country, or any trade secret, copyright, or other proprietary rights. As Customer's exclusive remedy for breach of this warranty and PortableConcur's entire liability for infringement, Portable Concur agrees to indemnify and hold Customer harmless with respect to any suit, claim, or proceeding brought against Customer alleging that Customer's permitted use of the Licensed Programs under this Agreement constitutes an infringement of any patent issued in the United States or a European Union country, or any trade secret, copyright, copyright or other proprietary right. Portable Concur shall defend Customer against any such suit, claim, or proceeding, and pay all litigation costs and reasonable attorneys' fees incurred in connection with such suit, claim or proceeding, and all settlement payments and damages awarded therein, provided that Portable Concur is notified in writing within thirty (30) days of any such suit, claim or proceeding, Customer tenders the control of any such claim or proceeding to PortableConcur, and Customer cooperates with Portable Concur in the defense or settlement of same. 9.2 Upon notice of alleged infringement or if in PortableConcur's opinion such a claim is likely, Portable Concur shall have the -------------------------------------------------------------------------------- CONCUR TECHNOLOGIES, INC. Page 4 -------------------------------------------------------------------------------- right, at its option and expense, either: (a) to procure for Customer the right to continue using the Licensed Programs; or (b) to replace or modify the Licensed Programs so that they provide substantially the same, or greater, functionality and performance than the infringing Licensed Program, but are no longer subject to a claim or infringement. If, in PortableConcur's opinion, none of the options above are reasonably available, Customer's sole and exclusive remedy shall be to return the infringing Licensed Programs to Portable Concur in exchange for a refund of the price that Customer paid to Portable Concur for such Licensed Programs, less reasonable amortization pro-rated over a forty-eight (48) month term from the date the infringing Licensed Programs are shipped to Customer. Portable Concur shall not have any obligation under this Section: (a) to the extent the claim arises from a modification of the Licensed Program other than by or on behalf of Portable Concur or from Customer's use of the Licensed Program in combination with other non-Portable Concur software, equipment or devices; or (b) if Portable Concur has provided Customer with a non-infringing version of the Licensed Programs (that provide substantially the same, or greater, functionality and performance than the infringing Licensed Program) and Customer does not promptly replace all copies of the infringing version of the Licensed Programs with the non-infringing version; or (c) the use of any version of a Licensed Program other than the most recent version of that Licensed Program, to the extent that Customer's liability for such infringement claim would have been avoided by the use of said most recent version.