Infringement Claims. If any item used by Supplier to provide the Services or any Work Product becomes, or in Supplier’s reasonable opinion is likely to become, the subject of an infringement or misappropriation Claim, Supplier will, in addition to indemnifying Health Net Indemnitees as provided in this Section 23 (Indemnification) and to the other rights Health Net may have under this Agreement, and at law or equity, ***: (i) promptly *** secure the right to continue using the item or Work Product, or (ii) if this cannot be accomplished with Commercially Reasonable Efforts, then ***, replace or modify the item or Work Product to make it non-infringing or without misappropriation, while not degrading performance, functionality, or quality, increasing Health Net costs, or disrupting Health Net’s business operations, or (iii) if neither of the foregoing can be accomplished by Supplier with Commercially Reasonable Efforts, and only in such event, then upon at least one hundred eighty (180) days’ prior written notice to Health Net, (A) with respect to non-Work Product items, Supplier may remove the item from use in performing the Services, in which case Supplier’s Charges will be equitably adjusted to reflect such removal, and (B) in the case of Work Product, Supplier may recall the Work Product and shall refund to Health Net all Charges and fees paid by Health Net relating to such Work Product. If removal of the item from use in performing Services or recall of a Work Product causes the loss or degradation of the Services or any portion of the Services that is material to Health Net or has a material impact on Health Net, such loss, degradation or material impact will constitute a material breach of this Agreement by Supplier in respect of which Health Net may exercise its termination and other rights and remedies under this Agreement.
Appears in 2 contracts
Samples: Master Services Agreement, Master Services Agreement (Health Net Inc)
Infringement Claims. (a) If any item used by Supplier BancTec to provide the Services or any Work Product other than a DFS Resource becomes, or in SupplierBancTec’s reasonable opinion is likely to become, the subject of an infringement or misappropriation Claim, Supplier BancTec will, in addition to indemnifying Health Net DFS Indemnitees as provided in this Section 23 (Indemnification) 17 and to the other rights Health Net DFS may have under this Agreement, and at law or equity, ***: (i) promptly *** at BancTec’s expense secure the right to continue using the item or Work Productitem, or (ii) if this cannot be accomplished with Commercially Reasonable Efforts, then ***at BancTec’s expense, replace or modify the item or Work Product to make it non-infringing or without misappropriation; provided, while however, that any such replacement or modification may not degrading performance, functionality, degrade the performance or quality, increasing Health Net costs, quality of the affected components of the Services or disrupting Health Net’s disrupt DFS’ business operations, or (iii) if neither of the foregoing can be accomplished by Supplier BancTec with Commercially Reasonable Efforts***, and only in such event, then upon at least one hundred eighty (180) *** days’ prior written notice to Health NetDFS, (A) with respect to non-Work Product items, Supplier BancTec may remove the item from use in performing the Services, in which case SupplierBancTec’s Charges charges will be equitably adjusted to reflect such removal, and (B) in the case of Work Product, Supplier may recall the Work Product and shall refund to Health Net all Charges and fees paid by Health Net relating to such Work Product. If removal of the item from use in performing Services or recall of a Work Product causes the loss or degradation of the Services or any portion of the Services that is material to Health Net or has a material impact on Health NetDFS, such loss, loss or degradation or material impact will constitute a material breach of this Agreement by Supplier BancTec in respect of which Health Net DFS may exercise its termination and other rights and remedies remedies.
(b) If any DFS Resource becomes, or in DFS’ reasonable opinion is likely to become, the subject of an infringement or misappropriation Claim, DFS will, in addition to indemnifying BancTec Indemnitees as provided in this Section 17 and to the other rights BancTec may have under this Agreement, (i) promptly at DFS’ expense secure the right to continue using the item, or (ii) if this cannot be accomplished with ***, then at DFS’ expense, replace or modify the item to make it non-infringing or without misappropriation; provided, however, that any such replacement or modification may not degrade the performance or quality of the affected components of the Services or disrupt DFS’ business operations, or (iii) if neither of the foregoing can be accomplished by DFS with Commercially Reasonable Efforts, and only in such event, then upon at least *** days’ prior written notice to DFS, BancTec may remove the item from the Services, in which case BancTec’s charges will be equitably adjusted to reflect such removal. *** Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.
Appears in 2 contracts
Samples: Services Agreement (Discover Card Execution Note Trust), Services Agreement (Discover Card Master Trust I)
Infringement Claims. (a) If any item used by Supplier BancTec to provide the Services or any Work Product other than a DFS Resource becomes, or in SupplierBancTec’s reasonable opinion is likely to become, the subject of an infringement or misappropriation Claim, Supplier BancTec will, in addition to indemnifying Health Net DFS Indemnitees as provided in this Section 23 (Indemnification) 17 and to the other rights Health Net DFS may have under this Agreement, and at law or equity, ***: (i) promptly *** at BancTec’s expense secure the right to continue using the item or Work Productitem, or (ii) if this cannot be accomplished with Commercially Reasonable Efforts, then ***at BancTec’s expense, replace or modify the item or Work Product to make it non-infringing or without misappropriation; provided, while however, that any such replacement or modification may not degrading performance, functionality, degrade the performance or quality, increasing Health Net costs, quality of the affected components of the Services or disrupting Health Net’s disrupt DFS’ business operations, or (iii) if neither of the foregoing can be accomplished by Supplier BancTec with Commercially Reasonable Efforts, and only in such event, then upon at least one hundred eighty (180) 180 days’ prior written notice to Health NetDFS, (A) with respect to non-Work Product items, Supplier BancTec may remove the item from use in performing the Services, in which case SupplierBancTec’s Charges charges will be equitably adjusted to reflect such removal, and (B) in the case of Work Product, Supplier may recall the Work Product and shall refund to Health Net all Charges and fees paid by Health Net relating to such Work Product. If removal of the item from use in performing Services or recall of a Work Product causes the loss or degradation of the Services or any portion of the Services that is material to Health Net or has a material impact on Health NetDFS, such loss, loss or degradation or material impact will constitute a material breach of this Agreement by Supplier BancTec in respect of which Health Net DFS may exercise its termination and other rights and remedies remedies.
(b) If any DFS Resource becomes, or in DFS’ reasonable opinion is likely to become, the subject of an infringement or misappropriation Claim, DFS will, in addition to indemnifying BancTec Indemnitees as provided in this Section 17 and to the other rights BancTec may have under this Agreement, (i) promptly at DFS’ expense secure the right to continue using the item, or (ii) if this cannot be accomplished with Commercially Reasonable Efforts, then at DFS’ expense, replace or modify the item to make it non-infringing or without misappropriation; provided, Services Agreement 29 CONFIDENTIAL however, that any such replacement or modification may not degrade the performance or quality of the affected components of the Services or disrupt DFS’ business operations, or (iii) if neither of the foregoing can be accomplished by DFS with Commercially Reasonable Efforts, and only in such event, then upon at least 180 days’ prior written notice to DFS, BancTec may remove the item from the Services, in which case BancTec’s charges will be equitably adjusted to reflect such removal.
Appears in 2 contracts
Samples: Services Agreement (Discover Card Execution Note Trust), Services Agreement (Discover Card Master Trust I)
Infringement Claims. If Customer is enjoined by a court of competent jurisdiction from using any item used by Supplier to provide of the Services or their components for the intended purpose on the grounds that such use infringes on any Work Product becomesproprietary right, or in Supplier’s reasonable opinion is likely to become, the subject of an infringement or misappropriation Claim, Supplier Roadie will, in addition to indemnifying Health Net Indemnitees Customer Indemnified Parties as provided in this Section 23 (Indemnification10(a) and to the other rights Health Net may have under this Agreement, and at law or equity, ***: (i) promptly *** (A), at its expense (A) use commercially reasonable efforts to secure the right to continue using the item or Work ProductServices, or (iiB) if this cannot be accomplished with Commercially Reasonable Efforts, then ***commercially reasonable efforts, replace or modify the item or Work Product Services to make it them non-infringing or and/or without misappropriation; provided, while however, that any such replacement or modification may not degrading performance, functionality, degrade the performance or quality, increasing Health Net costs, or disrupting Health Net’s business operationsquality of the affected components of the Services, or (iiiC) if neither of the foregoing can be accomplished by Supplier Roadie with Commercially Reasonable Effortscommercially reasonable efforts, and only in such event, then Roadie may terminate this Agreement upon at least one hundred eighty thirty (18030) days’ prior written notice to Health Net, (A) with respect to non-Work Product items, Supplier may remove the item from use in performing the ServicesCustomer. If, in which case SupplierCustomer’s Charges will be equitably adjusted reasonable opinion, the Services or Roadie Platform are likely to reflect such removal, and (B) in become the case subject of Work Product, Supplier may recall the Work Product and shall refund to Health Net all Charges and fees paid by Health Net relating to such Work Product. If removal an infringement or misappropriation claim affecting Customer’s use of the item from use in performing Services or recall of Platform as contemplated by this Agreement, or a Work Product Roadie modification or replacement to the Services causes the loss or degradation of the Services or any portion of the Services that is material to Health Net or has a material impact on Health NetCustomer, such loss, degradation or material impact will constitute a material breach of Customer may terminate this Agreement by Supplier upon ten (10) days prior written notice. Notwithstanding the above, Customer may terminate this Agreement immediately upon receipt of an injunction prohibiting its further use of the Platform or Services. If the Claim subject to indemnification is part of a class action or other action involving multiple parties from which an Indemnified Party has the right to claim indemnification, the Indemnitor shall only be liable to Indemnified Party for its proportionate share of any liability arising under Section 10(a) among all indemnitors of the Indemnified Party also included in respect of which Health Net may exercise its termination and other rights and remedies under such Claim or action. The relief set forth in this AgreementSection 10 (a)(iv) shall be Customer’s sole relief for Infringement Claims.
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Infringement Claims. If any item used by Supplier to provide the Services or which is provided by Supplier to Triple-S under this Agreement, including any Software, Work Product Product, Independent IP, Deliverables or Services (collectively, the “Indemnified Items”) becomes, or in Supplier’s reasonable opinion is likely to become, the subject of an infringement or misappropriation Claima Claim which is indemnifiable pursuant to Section 23.1(f) (Infringement), Supplier will, in addition to indemnifying Health Net Triple-S Indemnitees as provided in this Section 23 (Indemnification) and to the other rights Health Net Triple-S may have under this Agreement, and at law or equity, ***at Supplier’s expense: (ia) promptly *** secure the right to continue using the item or Work ProductIndemnified Item, or (iib) if this cannot be accomplished with Commercially Reasonable Efforts, then ***, at Supplier’s expense replace or modify the item or Work Product Indemnified Item to make it non-infringing or without misappropriation, while not materially degrading performance, functionality, or quality, increasing Health Net Triple-S costs, or materially disrupting Health NetTriple-S’s business operations, or (iiic) if neither of the foregoing can be accomplished by Supplier with Commercially Reasonable Efforts, and only in such event, then upon at least one hundred eighty (180) 180 days’ prior written notice to Health NetTriple-S, (Ai) with respect to non-Work Product itemsIndemnified Items other than Deliverables, Supplier may remove the item from use in performing the Services, in which case Supplier’s Charges for the affected Services will be equitably adjusted to reflect such removal, and (Bii) in the case of Work ProductDeliverables, Supplier may recall the Work Product Deliverable and (if the Deliverable was subject to a specific Charge) shall refund to Health Net all Triple-S Charges and fees paid by Health Net relating to Triple-S for such Work ProductDeliverable. If removal of the item Indemnified Item from use in performing Services or recall of a Work Product Deliverable causes the loss or degradation of the Services or any portion of the Services that is material to Health Net Triple-S or has a material impact on Health NetTriple-S, such loss, degradation or material impact will constitute a material breach of this Agreement by Supplier in respect of which Health Net Triple-S may exercise its termination and other rights and remedies under this AgreementAgreement or at law or equity.
Appears in 1 contract
Samples: Master Services Agreement (Triple-S Management Corp)
Infringement Claims. If All Claims that any item used by Supplier to provide the Provider Assets, Work Product, Provider Software, Provider Licensed Software, Services or any Work Product becomesother item, information, system, Deliverable, software or service provided or used under the Agreement (the “Affected Material”) by Provider (or any Provider Agent), or use thereof (or access or other rights thereto) in accordance with the terms of the Agreement, infringes or misappropriates any Intellectual Property Right of a Third Party. If any Affected Material is held to constitute, or in SupplierProvider’s reasonable opinion judgment is likely to becomeconstitute, the subject of an infringement or misappropriation ClaimExhibit 10.103 misappropriation, Supplier Provider will, in addition to indemnifying Health Net Indemnitees as provided in this Section 23 (Indemnification) its indemnity obligations, at its expense and to the other rights Health Net may have under this Agreementoption, and at law or equityafter consultation with Customer regarding Customer’s preference in such event, ***either: (i) promptly *** secure procure the right for Customer Indemnitees to continue using the item or Work Product, or such Affected Material; (ii) if this canprovide Customer with an opinion of counsel reasonably acceptable to Customer as to the invalidity of the asserted Intellectual Property Rights or the non-infringement of the Affected Material; (iii) replace such Affected Material with a non-infringing equivalent, provided that such replacement does not be accomplished with Commercially Reasonable Effortsresult in a degradation of the functionality, then ***performance or quality of the Affected Material, replace accompanied by an opinion of counsel reasonably acceptable to Customer as to the non-infringement of the Affected Material and the replacement integrated therein; (iv) modify such Affected Material, or modify the item or Work Product have such Affected Material modified, to make it non-infringing or without misappropriationinfringing, while provided that such modification does not degrading performance, result in a degradation of the functionality, performance or qualityquality of the Affected Material, increasing Health Net costs, or disrupting Health Net’s business operations, accompanied by an opinion of counsel reasonably acceptable to Customer as to the non-infringement of the Affected Material and the replacement integrated therein; or (iiiv) if neither create a workaround that would not have any adverse impact on Customer Group, accompanied by an opinion of counsel reasonably acceptable to Customer as to the non-infringement of the foregoing can be accomplished by Supplier with Commercially Reasonable Efforts, Affected Material and only in such event, then upon at least one hundred eighty the replacement integrated therein. Provider shall have no liability or obligation to any of the Customer Indemnitees under this paragraph (180) days’ prior written notice to Health Net, (Aa) with respect to non-Work Product items, Supplier may remove the item from Affected Materials due to: (A) such Customer Indemnitee’s unauthorized use in performing the Services, in which case Supplier’s Charges will be equitably adjusted to reflect or modification of such removal, and item; (B) such Customer Indemnitees’ failure to use corrections or enhancements made available by Provider to Customer within a reasonable period of time after such corrections or enhancements were first made available to Customer without cost; or (C) such Customer Indemnitee’s use of such item in the case combination with any product or equipment not owned, developed, contemplated or authorized by Provider, except where Provider knew or should reasonably have known that such combination would be used by Customer or such Customer Indemnitee and did not object. The foregoing sentence constitutes Customer’s sole and exclusive remedy, and Provider’s entire liability, with respect to claims of Work Product, Supplier may recall the Work Product and shall refund to Health Net all Charges and fees paid by Health Net relating to such Work Product. If removal infringement or misappropriation of the item from use in performing Services or recall of a Work Product causes the loss or degradation of the Services or any portion of the Services that is material to Health Net or has a material impact on Health Net, such loss, degradation or material impact will constitute a material breach of this Agreement by Supplier in respect of which Health Net may exercise its termination and other rights and remedies under this AgreementThird Party Intellectual Property Rights.
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Infringement Claims. If any item used by Supplier to provide the Services or any Work Product becomes, or in Supplier’s reasonable opinion is likely to become, the subject of an infringement or misappropriation Claim, Supplier will, in addition to indemnifying Health Net Indemnitees as provided in this Section 23 (Indemnification) and to the other rights Health Net may have under this Agreement, and at law or equity, ***its expense: (i) promptly *** at Supplier’s expense secure the right to continue using the item or Work Productitem, or (ii) if this cannot be accomplished with Commercially Reasonable Efforts, then ***at Supplier’s expense, replace or modify the item or Work Product to make it non-infringing or without misappropriation, while not degrading performance, functionality, or quality, increasing Health Net costs, or disrupting Health Net’s business operations, or (iii) if neither of the foregoing can be accomplished by Supplier with Commercially Reasonable Efforts, and only in such event, then upon at least one hundred eighty (180) days’ prior written notice to Health Net, (A) with respect to non-Work Product items, Supplier may remove the item from use in performing the Services, in which case Supplier’s Charges charges will be equitably adjusted to reflect such removal, and (B) in the case of Work Product, Supplier may recall the Work Product and shall refund to Health Net all Charges and fees paid by Health Net relating to such Work Product. If removal of the item from use in performing Services or recall of a Work Product causes the loss or degradation of the Services or any portion of the Services Services, and that is material to Health Net loss or has a material impact on Health Net, such loss, degradation or material impact will would otherwise constitute a material breach of this Agreement by Supplier in respect of which Agreement, then Health Net may exercise its termination and terminate this Agreement without payment of a fee or other rights and remedies under this Agreementliability by providing written notice to Supplier designating the effective date of termination.
Appears in 1 contract
Samples: Master Agreement (Health Net Inc)
Infringement Claims. (a) If any item used by Supplier to provide the Services or any Work Product becomes, or in Supplier’s reasonable opinion is likely to become, the subject of an infringement or misappropriation Claimclaim for reasons other than an Intellectual Property Right of Buyer, Supplier willwill promptly notify Buyer (the “Infringement Notice”) and, at Supplier’s expense, and in addition to indemnifying Health Net Buyer Indemnitees as provided in this Section 23 11 (Indemnification) and to the other rights Health Net Buyer may have under this Agreement, and at law or equity, ***Supplier shall: (ia) promptly *** at Supplier’s sole expense, secure the right to continue using manufacturing and selling the item Product; or Work Product, or (ii) if this cannot be accomplished with Commercially Reasonable Effortscommercially reasonable efforts, then ***, (b) replace or modify the item or Work Product to make it non-infringing or without misappropriation; provided, while however, that any such replacement or modification may not degrading performanceincrease the Product’s price, functionality, degrade the performance or quality, increasing Health Net costs, quality of the Product or disrupting Health Netdisrupt Buyer’s business operations, ; or (iii) if neither of the foregoing can be accomplished by Supplier with Commercially Reasonable Effortscommercially reasonable efforts, and only in such eventthen, then upon at least one hundred eighty (180) days’ prior written notice to Health Netno earlier than 365 days after the date of Supplier’s Infringement Notice, (Ac) with respect stop selling the affected Product to nonBuyer. During the foregoing 365-Work Product itemsday period of time and unless prohibited by Law, Supplier may remove shall not impact, reduce, or suspend manufacturing and/or delivery of the item affected Product hereunder and Supplier shall not increase the prices charged therefor as the direct result of such infringement or misappropriation claim. If Supplier chooses to stop selling any such Product and Supplier is not otherwise prohibited by Law from use in performing selling the Services, in which case Supplier’s Charges will be equitably adjusted to reflect such removal, and (B) in the case of Work Product, Supplier may recall the Work Product will be deemed to be in default and shall refund to Health Net all Charges and fees paid by Health Net relating to such Work Product. If removal of the item from use in performing Services or recall of a Work Product causes the loss or degradation of the Services or any portion of the Services that is material to Health Net or has a material impact on Health Net, such loss, degradation or material impact will constitute a material breach of this Agreement by Supplier in respect of which Health Net Buyer may exercise its termination and other rights and remedies under this Agreementremedies.
(b) With respect to any actual or alleged infringement or misappropriation of any Supplier’s Intellectual Property Rights arising from or related to any product, process, material, document, software or firmware code or other part or component of a Buyer Product (“Components”), including without limitation as may relate to the manufacture, testing, and/or assembly of such Buyer Product (a “Component Claim”), Supplier agrees that its sole remedy shall be compensatory damages which Supplier may seek exclusively from the manufacturer(s) and/or distributor(s) of the relevant Component(s). Supplier shall hold harmless Buyer, its Affiliates, and their respective directors, officers, employees, agents, customers, successors, and assigns with respect to any and all Component Claims, and Supplier hereby waives and disclaims for itself and each of its Affiliates any and all right to seek equitable relief with respect to a Component Claim from or against Buyer, its Affiliates, and/or any of their respective directors, officers, employees, agents, customers, successors, and/or assigns.
Appears in 1 contract
Samples: Design and Supply Agreement (Electrameccanica Vehicles Corp.)
Infringement Claims. If Pivotal shall defend, indemnify, and hold Indemnified Parties harmless against any item used third party liabilities, claims, demands, suits (and any costs, judgments and settlement amounts associated therewith) that the use or disposition of a Product misappropriates a trade secret or infringes a patent, copyright, or trademark in any of the jurisdictions within which the Products were sold. Pivotal shall promptly engage counsel qualified in the subject matter of such dispute upon receiving notice. Pivotal shall also pay all damages awarded or agreed to under a settlement made by Supplier Pivotal and/or by a court of final appeal attributable to such claim. VMware will provide Pivotal (i) prompt notice in writing of such claim (but late notice shall not void Pivotal’s obligations in this Section unless the Services lateness itself prejudiced Pivotal’s ability to fulfill its obligations); (ii) sole control over the defense and settlement thereof; and (iii) reasonable cooperation from VMware, as applicable, at Pivotal’s expense in response to a Pivotal request for assistance. When settling or compromising any Work claim, Pivotal shall not, without VMware’s written approval, make any admission of facts that expose VMware to the imposition of punitive damages or other claims that are not covered by this indemnification. Should any Product becomesbecome, or in SupplierPivotal’s reasonable opinion is be likely to become, the subject of an infringement or misappropriation Claimsuch a claim, Supplier willPivotal shall, in addition to indemnifying Health Net Indemnitees as provided in this Section 23 at its option and expense, (Indemnificationa) procure for VMware, Channel Partners and to the other rights Health Net may have under this Agreement, and at law or equity, ***: (i) promptly *** secure End Users the right to continue using the item or Work Product, or make continued use thereof in accordance with this Agreement; (iib) if this cannot be accomplished with Commercially Reasonable Efforts, then ***, replace or modify the item or Work Product to make affected Product(s) so that it becomes non-infringing or without misappropriation, while not degrading but with substantially equivalent functionality and performance, functionality, or quality, increasing Health Net costs, or disrupting Health Net’s business operations, ; or (iiic) if neither (a) nor (b) are reasonably available, accept return of the foregoing can be accomplished by Supplier with Commercially Reasonable Efforts, affected Product(s) and only in such event, then upon at least one hundred eighty (180) days’ prior written notice to Health Net, (A) with respect to non-Work Product items, Supplier may remove the item from use in performing the Services, in which case Supplier’s Charges will be equitably adjusted to reflect such removal, and (B) in the case of Work Product, Supplier may recall the Work Product and shall receipt thereof refund to Health Net all Charges and fees VMware the price paid therefore by Health Net relating VMware to such Work Product. If removal of the item from use in performing Services or recall of a Work Product causes the loss or degradation of the Services or any portion of the Services that is material to Health Net or has a material impact on Health Net, such loss, degradation or material impact will constitute a material breach of this Agreement by Supplier in respect of which Health Net may exercise its termination and other rights and remedies under this AgreementPivotal.
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