Common use of Intellectual Property Indemnity Clause in Contracts

Intellectual Property Indemnity. The Seller shall indemnify, defend and hold harmless, the Buyer, its Affiliates and its and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilities, damages, losses, costs or expenses (including, without limitation, attorneys’ fees and expenses) arising out of any suit, claim, or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing of the Claim; (b) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer shall have the right to participate at the Seller’s expense in any such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of any such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunder.

Intellectual Property Indemnity. The Seller CONTRACTOR shall indemnifydefend, defend indemnify and hold harmlessharmless any OWNER Indemnified Party from and against any and all suits, the Buyer, its Affiliates and its and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilitiesactions, damages, lossesclaims, costs costs, losses or expenses (including, without limitation, attorneys’ fees and expenses) liability of whatsoever kind or character arising out from any infringement of patents or the improper use of other Intellectual Property rights which may occur in connection with CONTRACTOR’s performance of the Work or the ownership or use of any suit, claim, or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing portion of the Claim; (b) gives the Seller sole authorityWork, unless such infringement or improper use is at the Sellerspecific (as opposed to general) direction of OWNER. OWNER’s expense, using counsel reasonably acceptable acceptance of CONTRACTOR’s engineering design and/or proposed or supplied materials or equipment shall not be construed to relieve CONTRACTOR of any obligation hereunder. CONTRACTOR shall have the Buyer, to direct and sole authority for the control of the defense of any and any settlement all such claims or suits brought thereon, and compromise negotiationsOWNER shall render such assistance as CONTRACTOR shall reasonably require in connection therewith; provided, however, that in any suit brought on such claim, the Buyer applicable OWNER Indemnified Party shall have the right to participate be represented by counsel of its own choice at the Seller’s expense in its own expense. Should any such settlement and compromise negotiations that would require any changes to claim materially impair CONTRACTOR’s performance of the Services Work or Equipment or that would require any action or restraint OWNER’s continued use of action by the Buyer and that the Buyer shall have Work, then CONTRACTOR shall, at its own expense, timely procure the right to approve any settlement that would require any changes continue its performance of the Work so as not to materially impair the Services schedule for completion of the Work, or Equipment or that would require any action or restraint timely procure the right to continue use of action by the Buyer (which consent Work, and CONTRACTOR shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of settle any such claim after notice in a manner that reasonably might be expected to interfere with its performance of same from the Buyer, Work or the Buyer shall be entitled but not required to undertake operation of the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderGathering System.

Intellectual Property Indemnity. The Seller GDE shall indemnify, hold harmless and defend Vista from and hold harmlessagainst any and all suits, the Buyer, its Affiliates and its and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilitiesactions, damages, costs, losses, costs or expenses (includingincluding reasonable attorneys' fees) and other liabilities arising from or in connection with any claim that the Licensed Products in the form delivered to Vista infringes or violates any United States patent, without limitationcopyright, attorneys’ fees and expenses) arising out trademark, trade secret or other proprietary right of any suit, claim, or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer third party. Vista agrees to promptly notifies the Seller notify GDE in writing of the Claim; (b) gives the Seller sole authoritysuch claim, suit or proceeding and give GDE authority to proceed as contemplated herein, and, at the Seller’s GDE's expense, using counsel reasonably acceptable give GDE proper and full information and assistance to the Buyersettle and/or defend any such claim, to direct and control the defense and any settlement and compromise negotiations; providedsuit or proceeding. Without limiting GDE's obligations as set forth herein, howeverGDE may, that the Buyer shall have at its sole option, either procure for Vista the right to participate at continue using the Seller’s expense Licensed Products in the form delivered, or, if such is not possible, replace or modify the Licensed Products so that it becomes non-infringing. During the time when GDE is contemplating or implementing its options, Vista shall have no obligation to make royalty payments to GDE for such Licensed Items that are the subject of the infringement claim. GDE shall have no liability for any above mentioned claim based upon the use of other than the unaltered version of the Licensed Products if such settlement and compromise negotiations that infringement would require any changes to the Services or Equipment or that would require any action or restraint of action have been avoided by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance use of the Buyer as may be reasonably required unaltered version of the Licensed Products. In the event Vista becomes aware of a potential infringer of GDE's intellectual property rights in the Licensed Products, Vista shall promptly notify GDE, in writing, and GDE agrees to defend any such Claim. If the Seller does not use reasonable efforts to promptly undertake defense of any such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderprotect GDE's intellectual property rights.

Intellectual Property Indemnity. The Seller shall indemnifyContractor shall, defend as part of the Fixed Prices, defend, indemnify and hold harmlessharmless Owner Indemnitees against any and all damages, the Buyer, its Affiliates and its and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilities, damages, losses, costs or and expenses (including attorneys’ fees and other professionals’ fees) associated with any claims, suits or proceedings brought against any of the Owner Indemnitees based on an allegation that any Services performed by Contractor or its Subcontractors, the Documentation or the Equipment, or any part thereof, or use thereof, constitutes an infringement or misappropriation of any right of any third party, including, without limitation, attorneys’ fees any copyrights, mask work rights, United States patent rights, trademark rights, trade secret rights, confidentiality rights or other property rights, if Contractor is notified promptly in writing and expenses) arising out given authority, information, and assistance for the defense or settlement of such claim suit or proceeding. Contractor will not be responsible for any suit, claim, settlement of such suit or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller made without its written consent. Contractor shall obtain Owner’s written consent, which may be withheld in writing of the Claim; (b) gives the Seller Owner’s sole authoritydiscretion, at the Seller’s expense, using counsel reasonably acceptable prior to the Buyer, to direct and control the defense and entering into any settlement and compromise negotiations; provided, however, that the Buyer shall have the right to participate at the Seller’s expense in any such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of any such claim after notice suit or proceeding that does not include a complete liability release for all Owner Indemnitees or that would prohibit use of same from any part of the BuyerProject, the Buyer shall be entitled but not required Documentation or the Equipment by any Owner Indemnitees. If the use of the Project, the Documentation or the Equipment, or any part thereof, as a result of any such claim, suit or proceeding is held to undertake constitute infringement, and its use by any of the defense of Owner Indemnitees is enjoined, Contractor shall, at its option, either: (i) procure for such claim and shall have Owner Indemnitees the right to direct continue using the Project, the Documentation or the Equipment, or any part thereof; (ii) replace same with substantially equivalent non-infringing Documentation or Equipment or parts thereof acceptable to Owner; or (iii) modify same in a manner acceptable to Owner and control in conformance with the defense and any settlement and compromise negotiations concerning such claim with counsel selected by functional requirements of this Agreement so it becomes non-infringing. Except to the Buyer and extent that Contractor is a contributory infringer, Contractor shall have no indemnity duty or obligation hereunder to the extent that the Seller Facility, the Documentation or the Equipment furnished hereunder is (A) modified by Owner after acceptance thereof to make it infringing, or (B) combined by Owner with items not furnished hereunder or recommended or approved by Contractor and solely as a result of said modification or combination a claim, suit or proceeding is brought against Owner. Contractor shall have flow down the right requirements of this Section 14.3 and make Owner direct beneficiary of the indemnification obligation in its subcontracts with all Major Subcontractors. If Contractor is unable to approve any settlement (which consent flow down such provision to a Major Subcontractor, Contractor shall notify Owner in writing of such failure prior to entering into a subcontract with such Person and Owner and Contractor shall consult in good faith concerning the options to select an alternative Subcontractor. Notwithstanding anything to the contrary, Contractor’s obligations under this Section 14.3 shall not be unreasonably withheld); all at apply to the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderOwner Equipment.

Intellectual Property Indemnity. The Seller shall 9.1. Supplier agrees that it will indemnify, defend and hold harmless, the Buyerat its option and expense, its Affiliates Ciena and its and their officers, directors, employees, agents, Financing Parties, successors and Subcontractors assigns from and against all liabilities, damages, losses, costs or expenses (including, without limitation, attorneys’ fees and expenses) arising out of any suit, third party claim, or proceeding (a “Claim”) including any claim by an End User seeking indemnity from Ciena, alleging that the Equipment Products, Software and/or use of the Products or Services provided under this Contract violate Software by Ciena or infringe any Intellectual Property ifEnd User infringes any patent, copyright, trademark or other intellectual property right of such third party. Supplier further agrees that it will hold Ciena harmless from and against all suits, claims or other proceedings and reasonable expenses and costs against Ciena related to such infringement claims. Supplier’s obligations hereunder are conditioned upon: (ai) Ciena giving Supplier prompt written notice of all claims of any such infringement claim (except that failure to give prompt notice shall not excuse Supplier’s obligations to the Buyer promptly notifies extent that Supplier is not materially prejudiced by such delay), (ii) Supplier being given full authority to assume the Seller in writing sole defense thereof through its own counsel and to compromise or settle any suits so far as this may be done without prejudice to the right of Ciena to continue the use of the Claim; alleged infringing apparatus subject to this Section 9.1, and (biii) gives Ciena cooperating fully with Supplier to facilitate defense or settlement of such claim. In any such suit, if the Seller use of the alleged infringing intellectual property is held to constitute an infringement and is enjoined, or if in light of any claim Supplier deems it advisable to do so and can do so without, in Supplier’s reasonable opinion, impairing or adversely affecting the Product or use thereof by [*]=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. Ciena or Ciena’s customers, Supplier may at Supplier’s sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer shall have option: (i) procure the right to participate at continue the Seller’s expense in any such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance use of the Buyer as may same for Ciena and the End Users; (ii) replace or modify the same to be reasonably required free of the infringement claim; or (iii) require Ciena to defend any return same to Supplier and refund Ciena the full purchase price paid by Ciena for such Claim. If the Seller does not promptly undertake defense of any such claim after notice of same from the BuyerProduct, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderless depreciation on a straight line basis over a three year period.

Intellectual Property Indemnity. The Seller shall indemnify, defend Lucent will indemnify and hold harmless, the Buyer, its Affiliates harmless CD Radio from and its and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilities, damages, losses, costs or expenses (including, without limitation, attorneys’ fees and expenses) arising out of any suit, claim, or proceeding (claim by a “Claim”) third party against CD Radio alleging that the Equipment or Services provided any Device furnished under this Contract violate Agreement directly infringes any patent, copyright or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing trademark of the Claim; (b) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer such third party. Lucent shall have the right obligation, at its own expense, to participate defend or settle all such claims, subject to CD Radio's reasonable participation, at its own expense, in the Seller’s expense in conduct of any such settlement proceeding or settlement. Lucent shall reimburse CD Radio for any costs incurred at Lucent's written request relating to such claim and compromise negotiations that would require shall pay damages and costs assessed by final judgment against CD Radio, or resulting from settlement, and attributable to such claim. In addition, Lucent will have the right, at any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer time and that the Buyer shall have at its option and expense to: (i) procure for CD Radio the right to approve continue using such Device; (ii) replace or modify any settlement that would require any changes such Device provided or to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance provided to render it free of the Buyer as may be reasonably required to defend any infringement, while maintaining equivalent functionality and complete compatibility with CD Radio's products; or (iii) require return of such ClaimDevice and refund the purchase price. If the Seller does not promptly undertake defense Lucent's obligations hereunder are conditioned upon: (i) CD Radio giving Lucent written notice within thirty (30) days of any such claim after notice asserted against it; (ii) Lucent having complete control of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement thereof, subject to CD Radio's reasonable participation and compromise negotiations concerning consent (in the case of settlement or litigation decisions affecting CD Radio); (iii) CD Radio cooperating fully with Lucent, at Lucent's expense, to facilitate the defense or settlement of such claim claim; and (iv) CD Radio's substantial compliance with counsel selected by the Buyer and that material terms of this Agreement. Notwithstanding the Seller foregoing, Lucent shall have no obligation to defend or settle any claim, and CD Radio shall indemnify and save harmless Lucent and its suppliers and affiliated companies from all costs, expenses, liabilities and claims, for any such claim: (i) arising from Lucent's compliance with CD Radio's specifications, designs or instructions; or (ii) relating to any Device furnished hereunder in combination with item(s), whether or not furnished by Lucent, even if such combination results from the right to approve Device's necessary or inherent use or the use for which the device is purchased. The sale of any settlement (which consent Device by Lucent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderconfer upon CD Radio, or upon anyone claiming under CD Radio, any license (expressly, by implication, by estoppel or otherwise) under any patent claim of Lucent or others covering or relating to any combination, machine or process in which such Device is or might be used, or to any process or method of making such Device. THE FOREGOING STATES THE SOLE AND EXCLUSIVE REMEDY AND OBLIGATION OF THE PARTIES HERETO FOR INFRINGEMENT OR OTHER VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS ARISING OUT OF THIS AGREEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO.

Intellectual Property Indemnity. The A. Seller shall indemnify, defend indemnify and hold harmless, the Buyer, its Affiliates Buyer and its customers harmless from any and their officersall costs, employees, agents, Financing Parties, and Subcontractors against all liabilities, damagesexpenses (including reasonably attorneys' fees), losses, costs damages or expenses (includingliabilities incurred because of actual or alleged infringement of any patent, without limitationcopyright, attorneys’ fees and expenses) trade secret, trademark, maskwork or other intellectual right arising out of the use or sale by Buyer or Buyer's customers of Items or Buyer's products manufactured using the Item(s). Buyer shall notify Seller of such claim or demand and shall permit Seller to participate in the defense or settlement thereof. B. If an injunction issues as a result of any suitclaim or action, claimSeller agrees, or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property ifat its sole cost and expense, and Xxxxx's option to either: (ai) the procure for Buyer promptly notifies the Seller in writing of the Claim; (b) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer shall have the right to participate continue using Items, (ii) replace the Items with non-infringing Items or (iii) modify the Items so they become non-infringing. If, despite Seller's best efforts, none of the foregoing options are available, Buyer may at its option return the Item at Seller’s expense in any such settlement 's sole cost and compromise negotiations that would require any changes expense, and Seller shall refund to Buyer the Services or Equipment or that would require any action or restraint purchase price of action by the Buyer and that the Buyer shall have the right Item. C. Seller's obligations pursuant to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent this Section 13 shall not be unreasonably withheld); apply where: (i) custom Items are manufactured to Buyer's detailed design and (c) such design is the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance cause of the Buyer as may be reasonably claim; or (ii) Items are used in combination with Equipment, software or other products not supplied, required to defend any or recommended by Seller and such Claiminfringement would not have occurred but for such combination. If the Seller does not promptly undertake defense of any such claim after notice of same from the BuyerD. THE FOREGOING STATES THE ENTIRE OBLIGATIONS AND REMEDIES FLOWING BETWEEN BUYER AND SELLER ARISING FROM ANY INTELLECTUAL PROPERTY CLAIM BY A THIRD PARTY. 14. HAZARDOUS MATERIALS. A. IF ITEMS OR SERVICES PROVIDED HEREUNDER INCLUDE HAZARDOUS MATERIALS, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement SELLER REPRESENTS AND WARRANTS THAT SELLER AND ITS EMPLOYEES, AGENTS, AND SUBCONTRACTORS PROVIDING SERVICES TO BUYER UNDERSTAND THE NATURE OF AND HAZARDS ASSOCIATED WITH THE HANDLING, TRANSPORTATION, AND USE OF SUCH HAZARDOUS MATERIALS, AS APPLICABLE TO SELLER. B. PRIOR TO CAUSING HAZARDOUS MATERIALS TO BE ON BUYER'S PREMISES, SELLER SHALL PROVIDE BUYER WITH MATERIAL SAFETY DATA SHEETS (which consent shall not be unreasonably withheld); all at the Seller’s expenseMSDS) AND ANY OTHER DOCUMENTATION REASONABLY NECESSARY TO ENABLE BUYER TO COMPLY WITH THE APPLICABLE LAWS AND REGULATIONS, AND OBTAIN WRITTEN APPROVAL FROM BUYER'S SITE ENVIRONMENTAL, HEALTH, AND SAFETY (EHS) ORGANIZATION. For the avoidance of doubtBUYER WILL NOT GRANT APPROVAL WITHOUT SELLER'S AGREEMENT TO COMPLY WITH BUYER'S HAZARDOUS MATERIALS MANAGEMENT REQUIREMENTS. C. SELLER WILL BE FULLY RESPONSIBLE FOR, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderDEFEND, INDEMNIFY AND HOLD BUYER HARMLESS FROM ANY CLAIM OR LIABILITY ARISING IN CONNECTION WITH (1) PROVIDING SUCH HAZARDOUS MATERIALS TO BUYER, OR (2) THE USE OF SUCH HAZARDOUS MATERIALS BY SELLER, ITS AGENTS OR SUBCONTRACTORS IN PROVIDING SERVICES TO BUYER. D. SELLER HEREBY CERTIFIES THAT ITEMS SUPPLIED TO BUYER DO NOT "CONTAIN" ANY CLASS I OZONE DEPLETING SUBSTANCES, AS THOSE TERMS ARE DEFINED BY LAW. E. EXCEPT AS PROVIDED HEREAFTER, ITEMS RETURNED TO SELLER BY BUYER WILL BE DECONTAMINATED FROM HAZARDOUS MATERIALS TO THE DEGREE PRACTICAL, REASONABLE, AND AS REQUIRED BY APPLICABLE LAW OR REGULATION. UPON REQUEST, BUYER SHALL PROVIDE APPROPRIATE DOCUMENTATION TO SELLER THAT THE RETURNED ITEMS HAVE BEEN DECONTAMINATED. IF SELLER IS FINANCIALLY RESPONSIBLE FOR SHIPPING THE RETURN ITEMS, SELLER WILL BE RESPONSIBLE FOR THEIR DECONTAMINATION, AND BUYER SHALL MAKE BUYER'S FACILITIES AVAILABLE TO SELLER FOR THE DECONTAMINATION. 15.

Intellectual Property Indemnity. The Seller shall indemnifywill: (i) defend or settle, defend at its option and hold harmlessexpense, any claim against Maxtor alleging that any Product furnished under this Agreement directly infringes any patent, copyright or trademark; (ii) reimburse Maxtor for any costs incurred at Seller's written request relating to such claim; and (iii) pay damages and costs assessed by final judgment against Maxtor and attributable to such claim. In addition, Seller will have the Buyerright, at any time and at its Affiliates option and its expense to: (i) procure for Maxtor the right to continue using such Product; (ii) replace or modify any such Product provided or to be provided to be free of the infringement; or (iii) require return of such Product and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilities, damages, losses, costs or expenses refund the purchase price. Seller's obligations hereunder are conditioned upon: (including, without limitation, attorneys’ fees and expensesi) arising out Maxtor giving Seller written notice within thirty (30) days of any suit, such claim, or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing of the Claim; (bii) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and having complete control of the defense and any settlement and compromise negotiationsthereof; provided, however, that (iii) Maxtor cooperating fully with Seller to facilitate the Buyer shall have the right to participate at the Seller’s expense in any defense or settlement of such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld)claim; and (civ) Maxtor's full compliance with this Agreement. Notwithstanding the Buyer provides the Sellerforegoing, at the Seller’s expense, with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of any such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have no obligation to defend or settle any claim, and Maxtor shall indemnify and save harmless Seller and its suppliers and affiliated companies from all costs, expenses, liabilities and claims, for any such claim: (i) arising from Seller's compliance with Maxtor's specifications, designs or instructions; or (ii) relating to any Product furnished hereunder in combination with item(s), whether or not furnished by Seller, even if such combination results from the right to approve Product's necessary or inherent use or the use for which the Product is purchased. The sale of any settlement (which consent Product by Seller shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderconfer upon Maxtor, or upon anyone claiming under Maxtor, any license (expressly, by implication, by estoppel or otherwise) under any patent claim of Seller or others covering or relating to any combination, machine or process in which such product is or might be used, or to any process or method of making such product. THE FOREGOING STATES THE SOLE AND EXCLUSIVE REMEDY AND OBLIGATION OF THE PARTIES HERETO FOR INFRINGEMENT OR OTHER VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS ARISING OUT OF THIS AGREEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO.

Intellectual Property Indemnity. The Seller SUPPLIER shall indemnifydefend, defend indemnify and hold harmless, the Buyerharmless VA LINUX, its Affiliates Representatives, Contract Manufacturers, and/or customers against any claim that the Product allegedly infringes any United States or Canadian patent, copyright, mask work right, trademark, trade secret, or any other intellectual property right of any third party. If any such claim of infringement is made, SUPPLIER, at SUPPLIER's expense, shall defend against and its pay any and their officersall costs, employees, agents, Financing Partiesexpenses (including reasonable fees of attorneys and other retained professionals), and Subcontractors against all liabilities, damages, losses, costs or expenses (including, without limitation, attorneys’ fees and expenses) damages of any kind arising out of such claim or resulting from any suitsettlement thereof, claimwhether or not that claim is successful, or proceeding (a “Claim”) alleging provided that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property ifVA LINUX: (a) the Buyer promptly notifies the Seller in writing gives SUPPLIER prompt written notice of the Claimsuch claim; (b) gives the Seller sole authoritycooperates with SUPPLIER, at SUPPLIER's expense for reasonable out of pocket expenses incurred by VA LINUX, in the Seller’s expense, using counsel reasonably acceptable defense of such claim; and (c) allows SUPPLIER to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer of such claim. SUPPLIER shall have the right to participate at the Seller’s expense in any such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve not enter into any settlement that would require any changes to the Services affects VA LINUX's rights or Equipment or that would require any action or restraint of action by the Buyer (which interests without VA LINUX's prior written consent. Such consent shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, withheld or delayed. SUPPLIER shall not be responsible for any settlement made by VA LINUX without SUPPLIER's prior written consent. Such consent shall not be unreasonably withheld or delayed. VA LINUX may choose to participate with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of any such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake SUPPLIER in the defense of such claim and at its own expense, but such participation shall have the be without prejudice to VA LINUX's right to direct reimbursement from SUPPLIER of reasonable costs, expenses (including reasonable fees of attorneys and control the defense other retained professionals prior to VA LINUX's participation), and awarded damages of any settlement and compromise negotiations concerning kind that VA LINUX may have been ordered to pay as a result of such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderclaim.

Intellectual Property Indemnity. The Seller war¬rants that, to the best of its knowledge, Products, Services and/or Software furnished hereunder, and any part thereof, (each a “Delivered Item”) shall be delivered free of any rightful claim of any third party not affiliated with Buyer for infringement of any U.S. patent, any trademark registered in the U.S. Patent and Trademark Office and/or any copyright registered in the U.S. Copyright Office. Seller will, at its own expense, defend or settle any suits that may be instituted against Buyer for alleged infringement by the Delivered Item of any U.S. patent, any trademark registered in the U.S. Patent and Trademark Office and/or any copyright registered in the U.S. Copyright Office provided that: (a) such alleged infringement consists of the use of the Delivered Item for (i) any of the purposes for which Buyer informed Seller such Delivered Items would be used, or (ii) if Buyer did not so inform Seller, any of the purposes for which Buyer reasonably believed such Delivered Items would be used; (b) Buyer shall have made all payments for such Delivered Items then due hereunder; (c) Buyer shall give Seller immediate notice in writing of any such suit and transmit to Seller immediately upon receipt of all processes and papers served upon Buyer; (d) Buyer does not take any position adverse to Seller in connection with such claim; and (e) Buyer shall permit Seller through Seller’s counsel, either in the name of Buyer or in the name of Seller, to defend such suit(s) and give all needed information, assistance and authority to enable Seller to do so. In case of a final award of damages in any such suit, Seller will pay such award but will not be responsible for any compromise or settlement made without its written consent. In case the Delivered Item itself is in such suit held to infringe any valid pat- ent issued in the United States and/or a trademark and/or copyright registered in the United States, and its use is enjoined, or in the event of a settlement or compromise approved by Seller which shall preclude future use of the Delivered Item, Seller shall, at its own expense and at its sole option, either: (a) procure rights to continue using such Delivered Item; (b) modify the Delivered Item to render it non-infringing; (c) replace the Delivered Item with a non-infringing Product and/or Software; or (d) refund the purchase price paid by Buyer for the Delivered Item after return of the Delivered Item to Seller (less reasonable depreciation for any period of use). Notwithstanding the foregoing, Seller shall indemnifynot be held responsible for claims of infringement of any patents covering the use of the Delivered Item in combination with other goods or materials not furnished by Seller. The foregoing states the entire liability of Seller for intellectual property infringement, defend and hold harmless, the IN NO EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES ATTRIBUTABLE TO AN INTELLECTUAL PROPERTY INFRINGEMENT. Buyer, at its Affiliates own expense, shall defend Seller against, and/or settle, (a) any patent, trademark, copyright or other intellectual property infringement claim pertaining to a Delivered Item furnished by Seller to Buyer manufactured in accordance with designs, drawings or other descriptions proposed or furnished by Buyer; and its (b) any claim against Seller of contributory infringement resulting from the use or resale by Buyer of a Delivered Item sold hereunder. Buyer shall indemnify Seller for any award against Seller or settlement by Seller regarding any such claims and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilities, damages, losses, costs or expenses (including, without limitation, attorneys’ fees and expenses) arising out of any suit, claim, or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller defense costs incurred in writing of the Claim; (b) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer shall have the right to participate at the Seller’s expense in any such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of any such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderclaims.

Intellectual Property Indemnity. The Seller SUPPLIER shall indemnify, defend and hold harmlessindemnify JNI and Buyers, the Buyer, its Affiliates and its and their officers, directors and employees, agentsagainst any claims, Financing Parties, and Subcontractors against all liabilities, damages, losses, costs actions or expenses (including, without limitation, attorneys’ fees and expenses) arising out of any suit, claim, or proceeding (a “Claim”) demands alleging that the Equipment manufacture or Services provided under distribution of any SUPPLIER Products infringes any patents, copyright, mask work right or other intellectual property right of any third party. These indemnity obligations of SUPPLIER are contingent upon (a) Buyer giving prompt written notice to SUPPLIER of any such claim, action or demand, (b) Buyer allowing SUPPLIER to control the defense and related settlement negotiations, and (c) Buyer’s cooperation in the defense of any such claim. SUPPLIER shall have no obligation hereunder for any such claims, actions, or demands which result from: (1) JNI’s use of the SUPPLIER Products in combination with products not purchased from SUPPLIER (but only if and to the extent that both (A) such violation or infringement is dependent upon such combination, and (B) the SUPPLIER Product can readily be used for its intended purpose without infringing); and (2) the modification or attempted modification of the SUPPLIER Products by parties other than SUPPLIER. Notwithstanding any of the provisions of the Agreement to the contrary, the provisions of this Contract violate Section 10 shall constitute the sole remedy of the Buyers with respect to the above mentioned infringement allegations. Without derogating from the above, should the use by Buyers of any SUPPLIER Products purchased from SUPPLIER be enjoined, be threatened by injunction, or infringe be the subject of any Intellectual Property iflegal proceeding, SUPPLIER may, at its sole expense, either: (a) the Buyer promptly notifies the Seller in writing of the Claimsubstitute fully equivalent non-infringing SUPPLIER Products; (b) gives modify the Seller sole authority, at infringing SUPPLIER Products so that they no longer infringe but remain fully equivalent; (c) obtain for the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct Buyers and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer shall have their customers the right to participate at the Seller’s expense in any such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance continue use of the Buyer as may be reasonably required to defend any such Claim. If SUPPLIER Products; or (d) if none of the Seller does not promptly undertake defense of any such claim after notice of same from foregoing is possible, refund the Buyer, purchase price paid for the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderinfringing SUPPLIER Products.

Intellectual Property Indemnity. The Seller shall indemnify(a) Stone & Xxxxxxx will, at its own cost and expense, defend (or at its option subject to Section 4(b), settle) and shall indemnify and hold harmlessProgress or any Qualified Entity harmless from and against any and all claims, demands, costs, suits, actions, proceedings, fines and penalties (and interest thereon) brought against Progress or any Qualified Entity to the Buyerextent based solely on an allegation that the Facility Documentation or any of the Intellectual Property Rights therein, its Affiliates or any part thereof furnished hereunder, or the use thereof in a manner contemplated by this License Agreement, constitutes an infringement, violation, or arises from or involves the misappropriation of, any patent, trademark, copyright, trade secret or other property right or intellectual property right, or any other similar intellectual property protection, if Stone & Xxxxxxx is notified promptly in writing and its and their officersgiven authority, employees, agents, Financing Partiesinformation, and Subcontractors against assistance for the defense of any such suit or proceeding. Stone & Xxxxxxx will indemnify and save the Progress or any Qualified Entity harmless from all damages, liabilities, damages, losses, costs or expenses fees (including, without limitation, attorneys’ fees reasonable attorney fees), costs, and expenses) arising out of expenses incurred by Progress or any Qualified Entity in connection with any such claim, suit, claimaction or proceeding, or awarded in any such suit, action, or proceeding. Stone & Xxxxxxx will not be responsible for any settlement of such suit, action, or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing of the Claim; (b) gives the Seller sole authoritymade without its prior written consent, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer shall have the right to participate at the Seller’s expense in any such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably conditioned, delayed or withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense use of the Facility Documentation or any of the Intellectual Property Rights therein or any part thereof furnished hereunder, as a result of any such claim after notice of same from suit, action, or proceeding is held to constitute infringement or misappropriation and its use by the BuyerProgress or any Qualified Entity is in any manner enjoined or restrained, Stone & Xxxxxxx will, at its option and at its own cost and expense, either: (i) procure for the Buyer shall be entitled but not required to undertake the defense of such claim and shall have Progress or any Qualified Entity the right to direct continue using said Facility Documentation and control the defense Intellectual Property Rights therein or part thereof, as contemplated under this License Agreement; (ii) replace same with substantially equivalent noninfringing Facility Documentation and any settlement the Intellectual Property Rights therein; or (iii) modify same so it becomes non-infringing while remaining substantially equivalent features and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderfunctionalities.

Intellectual Property Indemnity. The Seller shall indemnifyKidde agrees that it shall, at its own expense and at its sole option, defend and hold harmlessor settle any claim, the Buyer, its Affiliates and its and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilities, damages, losses, costs or expenses (including, without limitation, attorneys’ fees and expenses) arising out of any suit, claim, or proceeding (a “Claim”) alleging brought against Buyer or any customer expressly indemnified by Buyer based on an allegation that the Equipment or Services provided any Product furnished under this Contract violate or infringe sales contract directly infringes any Intellectual Property claim of any United States patent. This obligation shall be effective only if: (a) the Buyer promptly notifies the Seller in writing of the Claimhas made all payments then due; (b) gives the Seller sole product is the design of Kidde and not made in accordance with drawings, samples, or manufacturing specifications designated by Buyer; (c) Kidde is notified of said allegation promptly in writing; and (d) Kidde is given full opportunity and authority, information, and assistance to conduct the sole defense of said claim, suit, or proceeding, including settlement and appeals. Provided all the foregoing conditions have been met, Kidde shall either settle such claim, or pay all court awarded damages, excluding indirect, incidental, special, consequential and punitive damages. In the event of a final adjudication by a court of competent jurisdiction enjoining the use or sale of the product, or if the provisions of any negotiated settlement agreement prohibit the use or sale of the Product, Kidde shall at the Seller’s its sole option and its own expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the either: (a) procure for Buyer shall have the right to participate at continue using the Seller’s expense in any such settlement Product; (b) replace it with a substantially equivalent non‐infringing Product; (c) modify it so it becomes non‐ infringing but substantially equivalent; or (d) if none of the above is reasonably available, terminate the Buyer's right to use the Product and compromise negotiations that would require any changes return to the Services or Equipment or that would require any action or restraint Buyer a pro rata portion of action the price originally paid by Buyer to Kidde represented by the Buyer and that remaining useful life of the Buyer shall have Product as a percentage of the right total useful life. The foregoing obligation does not apply to approve the following: (a) any claim of infringement resulting from changes or modifications made to or from the Product by the Buyer; (b) any settlement that would require any changes to the Services of a claim, suit, or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld)proceeding made without Kidde's written consent; and (c) any claim of infringement for products on a U.S. Government application. The foregoing states the entire liability of Kidde with respect to infringement or violation of third party intellectual property rights in connection with products furnished under this Agreement. In the event any Product to be furnished under this Agreement is to be made in accordance with drawings, samples, or manufacturing specifications designated by Buyer provides or is not the Sellerdesign of Kidde, at the Seller’s expenseBuyer agrees to defend, with such disclosure indemnify, and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of any such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderhold Kidde harmless.

Intellectual Property Indemnity. The Seller shall indemnify, defend Contractor agrees to indemnify and hold harmless, harmless the Buyer, State of Tennessee as well as its Affiliates and its and their officers, employees, agents, Financing Parties, and Subcontractors employees from and against any and all liabilities, damages, losses, costs claims or expenses (including, without limitation, attorneys’ fees and expenses) suits which may be brought against the State concerning or arising out of any suitclaim of an alleged patent, claimcopyright, trade secret or proceeding (a “Claim”) alleging that other intellectual property infringement. In any such claim or action brought against the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) State, the Buyer promptly notifies Contractor shall satisfy and indemnify the Seller in writing State for the amount of the Claim; (b) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement or final judgment, and compromise negotiations; provided, however, that the Buyer Contractor shall have be responsible for all legal or other fees or expenses incurred by the right to participate at the Seller’s expense in State arising from any such settlement and compromise negotiations that would require any changes to claim. The State shall give the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense Contractor notice of any such claim after or suit, however, the failure of the State to give such notice shall only relieve Contractor of same its obligations under this Section to the extent Contractor can demonstrate actual prejudice arising from the BuyerState’s failure to give notice. This Section shall not grant the Contractor, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have through its attorneys, the right to direct and control represent the defense and State of Tennessee in any settlement and compromise negotiations concerning legal matter, as provided in Tenn. Code Xxx. § 8-6-106. In addition to the above indemnity, if the State’s use of any deliverable, or any portion thereof, provided under this Contract, is or is likely to be enjoined by order of a court of competent jurisdiction as such claim an infringement or unauthorized use, the Contractor, at its expense, shall: (x) procure for the State the continued use of such deliverable; (y) replace such deliverable with counsel selected a non-infringing counterpart; or (z) modify such deliverable so it becomes non-infringing; provided that, if (y) or (z) is the option chosen by the Buyer and that Contractor, the Seller shall have replacement or modified deliverable must be capable of performing substantially the same function. Notwithstanding the foregoing, the State retains the right to approve terminate the Contract in accordance with Section 1.65. hereunder in the event of such infringement or unauthorized use, and any settlement (which consent such exercise of these allowable options by Contractor shall not be unreasonably withheldrelieve Contractor of its indemnity obligations under this Section. The forgoing indemnity does not apply to the extent that the infringement arises from the State’s: (i) use of the deliverable not in accordance with instructions, documentations, or specifications (“Misuse”); all (ii) alteration, modification or revision of the Deliverables not expressly authorized by the Contractor (“Alteration”); (iii) failure to use or implement corrections or enhancements to the Deliverables made available by the Contractor to the State at no additional cost to the SellerState, except where such failure to use or implement corrections or enhancements is a result of State’s expense. For termination in accordance with the avoidance preceding paragraph; or (iv) combination of doubtthe Deliverables with materials not provided, specified, or approved by the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderContractor.

Intellectual Property Indemnity. The Seller CONTRACTOR shall indemnifydefend, defend indemnify and hold harmlessharmless any OWNER Indemnified Party from and against any and all suits, the Buyer, its Affiliates and its and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilitiesactions, damages, lossesclaims, costs costs, losses or expenses (including, without limitation, attorneys’ fees and expenses) liability of whatsoever kind or character arising out from any infringement of patents or the improper use of other Intellectual Property rights which may occur in connection with CONTRACTOR’s performance of the Work or the ownership or use of any suit, claim, or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing portion of the Claim; (b) gives the Seller sole authorityWork, unless such infringement or improper use is at the Sellerspecific (as opposed to general) direction of OWNER. OWNER’s expense, using counsel reasonably acceptable acceptance of CONTRACTOR’s engineering design and/or proposed or supplied materials or equipment shall not be construed to relieve CONTRACTOR of any obligation hereunder. CONTRACTOR shall have the Buyer, to direct and sole authority for the control of the defense of any and any settlement all such claims or suits brought thereon, and compromise negotiationsOWNER shall render such assistance as CONTRACTOR shall reasonably require in connection therewith; provided, however, that in any suit brought on such claim, the Buyer applicable OWNER Indemnified Party shall have the right to participate be represented by counsel of its own choice at the Seller’s expense in its own expense. Should any such settlement and compromise negotiations that would require any changes to claim materially impair CONTRACTOR’s performance of the Services Work or Equipment or that would require any action or restraint OWNER’s continued use of action by the Buyer and that the Buyer shall have Work, then CONTRACTOR shall, at its own expense, timely procure the right to approve any settlement that would require any changes continue its performance of the Work so as not to materially impair the Services schedule for completion of the Work, or Equipment or that would require any action or restraint timely procure the right to continue use of action by the Buyer (which consent Work, and CONTRACTOR shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of settle any such claim after notice in a manner that reasonably might be expected to interfere with its performance of same from the Buyer, Work or the Buyer shall be entitled but not required to undertake operation of the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expenseTransmission Line. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunder.SD\624074.9

Intellectual Property Indemnity. The Seller shall indemnifyAMNH will defend any action brought against Borrower to the extent that such action is based on a claim that any aspect of the Exhibition or Education Materials used by Borrower within the scope of this Agreement infringes any United States patents, defend and hold harmlesscopyrights, the Buyer, its Affiliates and its and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilities, damages, losses, costs or expenses (including, without limitation, attorneys’ fees and expenses) arising out of any suit, claimlicenses, or proceeding (a “Claim”) alleging trade secrets, provided that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer Borrower promptly notifies the Seller AMNH in writing of the Claim; (b) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer shall have the right to participate at the Seller’s expense in any such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of any such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim and provided further that AMNH shall have the exclusive right to direct control such defense, and control the defense to compromise and settle any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have claim. AMNH further reserves the right to approve modify the Exhibition in settlement of any settlement (which consent shall claim in order to remove any infringing or allegedly infringing aspect. Should any such action not be unreasonably withheld); all at settled, AMNH further agrees to indemnify Borrower against any final judgment for damages entered against Borrower that is based upon such infringement by the Seller’s expenseExhibition. For Should Borrower be enjoined from use of more than minor elements of the avoidance Exhibition by any judicial action, AMNH will equitably apportion and refund the Loan Fee. The foregoing states the entire liability of doubtAMNH with respect to infringement of any copyrights, patents, licenses or trade secrets by the Buyer’s election to undertake Exhibition or not to undertake any portion thereof, and Borrower hereby expressly waives any other such defense will not limit in any way the Seller’s indemnification obligations hereunderliabilities. AMNH SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES EVEN IF AMNH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS REVENUE, OR OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, OR ANY DAMAGES CLAIMED AGAINST BORROWER BY ANY OTHER PARTY.