Common use of Indemnity by Licensor Clause in Contracts

Indemnity by Licensor. Licensor shall defend, indemnify and hold harmless Sublicensor, Sublicensee and each of their respective Affiliates, and each of their respective members, managers, stockholders, officers, employees, agents, representatives and attorneys against any Loss (including without limitation any Loss first suffered by a customer of an Indemnified Party for which the Indemnified Party becomes responsible) arising from or in connection with (i) any claim that the Licensed Property, the Know-How, or the manufacture, sale, or use of Refined Coal produced using the Technology, infringes or misappropriates, directly or indirectly, a patent, trade secret, copyright, trademark or other intellectual property right of any third party (a “Third Party Rights Holder”); (ii) any challenge to the validity of any of the Patents or the rights granted to Sublicensee; and (iii) any breach by Licensor of the representations and warranties in Section 5.2 or any covenant or agreement by Licensor in this Agreement. Notwithstanding the foregoing, Licensor will not indemnify any Loss to the extent based upon: (1) an infringement or misappropriation of an intellectual property right of a Third Party Holder that would not exist but for (aa) the addition, use, or presence of any material, chemical, or other type of additives that is not: (xx) included as an element of the Refined Coal produced using the Technology as introduced into the cyclone boiler (excluding any element present in the coal prior to such coal being converted to Refined Coal, such as bromine); or (yy) present and inherent as the result of the conventional combustion of the Refined Coal in a cyclone boiler (e.g., oxygen or other constituents inherently produced in the combustion process); or (bb) the use of a process step or equipment in conjunction with the operation of the cyclone boiler that is unconventional or unique to the operator of the cyclone boiler; or (2) the use of the Licensed Property, Know-How or Technology after Licensor has provided US 1104947v.12 the Indemnified Party with replacement for or a modification of the Licensed Property, Know-How or Technology if the alleged infringement or misappropriation would have been avoided by implementation of such replacement or modification and such replacement or modification does not adversely affect the emissions control functionality of the Refined Coal in a cyclone boiler. If any portion of the Licensed Property, Know-How or Technology becomes, or in Licensor’s opinion is likely to become, the subject of a Loss arising from this Section 8.2, then Licensor may, at its sole option and expense, either procure the right to continue using the Licensed Property, Know-How or Technology or replace or modify the Licensed Property, Know-How or Technology so it becomes noninfringing. Section 1.4 The following new Section 8.7 shall hereby be added to the Sublicense Agreement:

Indemnity by Licensor. Licensor shall defend, indemnify and hold harmless SublicensorLicensee, Sublicensee and each of their respective its Affiliates, and each of their respective members, managers, stockholders, officers, employees, agents, representatives and attorneys (each, a “Licensee Indemnified Party”) against any Loss (including without limitation any Loss first suffered by a customer of an a Licensee Indemnified Party for which the Licensee Indemnified Party becomes responsible) arising from or in connection with (i) any claim that the Technology, including any Improvements (other than Excluded Licensee Improvements), the Licensed Property, the Know-How, or the manufacture, sale, sale or use of Refined Coal produced using the TechnologyTechnology or the Licensed Property, in accordance with the exercise of the license specified in Section 2.1(a), infringes or misappropriates, directly or indirectly, a patent, trade secret, copyright, trademark or other intellectual property right of any third party (a “Third Party Rights Holder”); (ii) any challenge to the validity of any of the Patents or the rights granted to SublicenseeLicensee in Section 2.1(a); and (iiiii) any breach by Licensor of the representations and warranties in Section 5.2 Sections 2.4 or 6.2 or any covenant or agreement by Licensor in this Agreement. . (a) Notwithstanding the foregoing, Licensor will not indemnify any Loss to the extent based upon: (1) upon an infringement or misappropriation of an intellectual property right of a Third Party Rights Holder that would not exist but for for: (aa1) with regard to the operation of the boiler: the addition, use, or presence of any material, chemical, or other type of additives that is not: not (xxi) included as an element of the Refined Coal produced using the Technology or the Licensed Property as introduced into the cyclone boiler (excluding any element present in the coal prior to such coal being converted to Refined Coal, such as bromine); or (yyii) present and inherent as the result of the conventional combustion of the Refined Coal in a cyclone boiler (e.g., oxygen or other constituents inherently produced in the combustion process)) being operated in a manner typical of operations prior to the date Refined Coal is first combusted in such boiler; or (bbiii) the use of a process step or equipment in conjunction with the operation of the cyclone boiler that is unconventional or unique to the operator of the cyclone boiler; or or (2) with regard to the production of the Refined Coal, operation of the Refined Coal Facility, or post-combustion operations, processes or activities which occur after the Refined Coal has been combusted in the boiler: the addition, use, or presence of any material, chemical, additive, product, service, equipment, component, process, design, specification, or information that is not included as an element of the Licensed Property, Know-How or Technology (including any instructions, drawings, or specifications provided by Licensor to Licensee) whether used alone or in combination with the Licensed Property, Know-How or Technology; or (3) the addition, use, or presence of an Excluded Licensee Improvement. (b) Licensor will also not indemnify any Loss to the extent based upon the use of the Licensed Property, Know-How or Technology after Licensor has provided US 1104947v.12 the Licensee Indemnified Party with replacement for or a modification of the Licensed Property, Know-How or Technology if the alleged infringement or misappropriation would have been avoided by implementation of such replacement or modification and such replacement or modification does not adversely affect the emissions control functionality of the Refined Coal in a cyclone boiler. . (c) If any portion of the Licensed Property, Know-How or Technology becomes, or in Licensor’s opinion is likely to become, the subject of a Loss arising from this Section 8.29.2, then Licensor may, at its sole option and expense, either procure the right to continue using the Licensed Property, Know-How or Technology or replace or modify the Licensed Property, Know-How or Technology so it becomes noninfringingnon-infringing. Section 1.4 The following new Section 8.7 shall hereby be added to the Sublicense Agreement:

Indemnity by Licensor. Licensor shall defend, indemnify and hold harmless Sublicensor, Sublicensee and each of their respective Affiliates, and each of their respective members, managers, stockholders, officers, employees, agents, representatives and attorneys against any Loss (including without limitation any Loss first suffered by a customer of an Indemnified Party for which the Indemnified Party becomes responsible) arising from or in connection with (i) any claim that the Licensed Property, the Know-How, or the manufacture, sale, or use of Refined Coal produced using the Technology, infringes or misappropriates, directly or indirectly, a patent, trade secret, copyright, trademark or other intellectual property right of any third party (a “Third Party Rights Holder”); (ii) any challenge to the validity of any of the Patents or the rights granted to Sublicensee; and (iii) any breach by Licensor of the representations and warranties in Section 5.2 or any covenant or agreement by Licensor in this Agreement. Notwithstanding the foregoing, Licensor will not indemnify any Loss to the extent based upon: (1) an infringement or misappropriation of an intellectual property right of a Third Party Holder that would not exist but for (aa) the addition, use, or presence of any material, chemical, or other type of additives that is not: (xx) included as an element of the Refined Coal produced using the Technology as introduced into the cyclone boiler (excluding any element present in the coal prior to such coal being converted to Refined Coal, such as bromine); or (yy) present and inherent as the result of the conventional combustion of the Refined Coal in a cyclone boiler (e.g., oxygen or other constituents inherently produced in the combustion process); or (bb) the use of a process step or equipment in conjunction with the operation of the cyclone boiler that is unconventional or unique to the operator of the cyclone boiler; or (2) the use of the Licensed Property, Know-How or Technology after Licensor has provided US 1104947v.12 the Indemnified Party with replacement for or a modification of the Licensed Property, Know-How or Technology if the alleged infringement or misappropriation would have been avoided by implementation of such replacement or modification and such replacement or modification does not adversely affect the emissions control functionality of the Refined Coal in a cyclone boiler. If any portion of the Licensed Property, Know-How or Technology becomes, or in Licensor’s opinion is likely to become, the subject of a Loss arising from this Section 8.2, then Licensor may, at its sole option and expense, either procure the right to continue using the Licensed Property, Know-How or Technology or replace or modify the Licensed Property, Know-How or Technology so it becomes noninfringing. Section 1.4 The following new Section 8.7 shall hereby be added to the Sublicense Agreement: