Common use of Intellectual Property Warranties Clause in Contracts

Intellectual Property Warranties. 5.9.1. Client warrants that the use by UST and/or any Personnel of any and all materials as furnished by Client to UST under this Agreement and/or any SOW will not violate or conflict with any IPR of any third parties including, but not limited to, copyrights, patents and trademarks. If Personnel perform code renovation services, Client warrants that it is authorized to permit UST and Personnel to use all relevant code for the purposes of performing Services. Client agrees to indemnify and hold harmless UST and its Affiliates and each of their directors, officers, agents, contractors and employees, including Personnel, against any and all costs, losses, liabilities, expenses and judgments incurred, including but not limited to reasonable attorneys’ fees and court costs (collectively, “Losses”), resulting from or arising out of any claim, demand, or cause of action brought by a third party based on or arising out of Client’s breach of warranty as set forth in this Section c. 5.9.2. UST warrants that the use by Client of any and all Deliverables furnished to Client by UST under this Agreement will not violate or conflict with any United Kingdom Intellectual Property Rights of any third parties including, but not limited to, copyrights, patents and trademarks, provided that Client or its personnel have not altered such Deliverables; and provided further that this warranty shall not apply to the portion of any Deliverable that constitute materials furnished by Client to UST. UST agrees to indemnify and hold harmless Client, its directors, officers, agents, contractors and employees against any and all Losses, to the extent resulting from or arising out of any claim, demand, or cause of action brought by a third party based on, or arising out of UST’s breach of warranty as set forth in this Section 5.9.2; provided, however, that UST’s obligation shall not extend to Losses that arise out of or result from the negligence, willful misconduct, or breach of this Agreement by Client or Client’s personnel. Further, UST shall have no indemnification obligation under this Section 5.8.2 for any Losses resulting from or arising out of: (a) the combination of the Deliverable by Client with software, hardware, or other material not supplied (or approved in writing) by UST; (b) the modification of any Deliverable by Client, or by UST in compliance with specific written design specifications or instructions provided by Client and required by Client to be followed by UST; (c) the direct or contributory infringement by Client through the use of any Deliverable other than in accordance with the terms and conditions of this Agreement or the applicable SOW; (d) use of any Deliverable by Client other than in accordance with the terms and conditions of this Agreement or the applicable SOW; (e) continued allegedly infringing activity by (or permitted or enabled by) Client after Client has been notified by UST of the possible infringement; or (f) Client’s negligence or willful misconduct, in each case to the extent such infringement would not occur or exist but for the actions described in (a) – (f). The indemnity under this Section 5.9.2, shall be Client’s sole and exclusive remedy for UST’s breach of the warranty as set forth in this Section 5.9.2. 5.9.3. In the event of an indemnification claim arising from Sections 5.9.2or 5.9.2above, the parties will follow the procedure in Section 10.1. If the materials furnished by an indemnitor become or are likely to become the subject of an infringement claim, then, in addition to the indemnification obligations as required above, the indemnifying party shall, at its option and in its sole and exclusive discretion, either (a) promptly replace or modify such materials, without loss of material functionality or performance, to make them non-infringing or (b) promptly procure for the indemnified party the right to continue using the materials pursuant to this Agreement. Any costs associated with implementing either of the above alternatives will be borne by the indemnifying party. If after using reasonable endeavors, the indemnifying party fails to provide one of the foregoing remedies within forty-five (45) days of notice of the claim, the indemnified party shall have the right to terminate this Agreement with no further liability to the indemnifying party.

Intellectual Property Warranties. 5.9.1. Client warrants (a) Transferors jointly and severally represent and warrant that (i) the Assigned Intellectual Property Rights were developed by the applicable Transferor(s) or acquired by such Transferor pursuant to a binding and enforceable agreement, and that no third party owns any rights in the Assigned Intellectual Property Rights and the Assigned Intellectual Property Rights are not subject to any Encumbrance, (ii) there is no demand, claim, suit, action, arbitration or other proceeding pending or, to any Transferor’s Knowledge, threatened against a Transferor which alleges that the use by UST and/or any Personnel Assigned Intellectual Property Rights infringes upon the Proprietary Rights or intellectual property rights of any third party, and all materials as furnished by Client to UST under (iii) this Agreement and/or any SOW will does not violate or conflict with any IPR of other agreement to which any third parties including, but not limited to, copyrights, patents and trademarks. If Personnel perform code renovation services, Client warrants that it Transferor is authorized to permit UST and Personnel to use all relevant code a party. (b) Except for the purposes obligations of performing Services. Client agrees Transferors with respect to indemnify and hold harmless UST and its Affiliates and each of their directors, officers, agents, contractors and employees, including Personnel, against any and all costs, losses, liabilities, expenses and judgments incurred, including but not limited to reasonable attorneys’ fees and court costs (collectively, “Losses”), resulting from or arising out of any claim, demand, or cause of action brought by a third party claims based on or arising out of Client’s breach of warranty as set forth in this Section c. 5.9.2. UST warrants that the use by Client of any and all Deliverables furnished to Client by UST under this Agreement will not violate or conflict with any United Kingdom Assigned Intellectual Property Rights of infringing any third parties including, but not limited to, copyrights, patents and trademarks, party rights as provided that Client or its personnel have not altered such Deliverables; and provided further that this warranty shall not apply to the portion of any Deliverable that constitute materials furnished by Client to UST. UST agrees to indemnify and hold harmless Client, its directors, officers, agents, contractors and employees against any and all Losses, to the extent resulting from or arising out of any claim, demand, or cause of action brought by a third party based on, or arising out of UST’s breach of warranty as set forth in this Section 5.9.2; provided, however, that UST’s obligation shall not extend to Losses that arise out of or result from the negligence, willful misconduct, or breach 6 of this Agreement by Client or Client’s personnel. FurtherAgreement, UST shall have no indemnification obligation under this Section 5.8.2 for any Losses resulting from or arising out of: (a) the combination of the Deliverable by Client with softwareSELLERS MAKE NO REPRESENTATIONS OR WARRANTIES, hardwareEXPRESS OR IMPLIED, or other material not supplied (or approved in writing) by UST; (b) the modification of any Deliverable by ClientAS TO THE PERFORMANCE OF THE ASSIGNED INTELLECTUAL PROPERTY RIGHTS, or by UST in compliance with specific written design specifications or instructions provided by Client and required by Client to be followed by UST; INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY SELLERS AND WAIVED BY ASPIRE NA. (c) the direct or contributory infringement by Client through the use of any Deliverable other than in accordance with the terms and conditions of this Agreement or the applicable SOW; (d) use of any Deliverable by Client other than in accordance with the terms and conditions of this Agreement or the applicable SOW; (e) continued allegedly infringing activity by (or permitted or enabled by) Client after Client has been notified by UST of the possible infringement; or (f) Client’s negligence or willful misconductIN NO EVENT SHALL ANY SELLER OR ANY OF ITS AGENTS, in each case to the extent such infringement would not occur or exist but for the actions described in (a) – (f). The indemnity under this Section 5.9.2SUBCONTRACTORS OR EMPLOYEES OR SELLERS BE LIABLE FOR ANY CONSEQUENTIAL OR INDIRECT DAMAGES, shall be Client’s sole and exclusive remedy for UST’s breach of the warranty as set forth in this Section 5.9.2INCLUDING LOSS OF PROFITS, REVENUE OR DATA INCURRED BY ASPIRE NA OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, BREACH OF WARRANTY OR TORT, EVEN IF ANY SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM ANY BREACH OF THIS AGREEMENT BY ANY SELLER. 5.9.3. In the event of an indemnification claim arising from Sections 5.9.2or 5.9.2above, the parties will follow the procedure in Section 10.1. If the materials furnished by an indemnitor become or are likely to become the subject of an infringement claim, then, in addition to the indemnification obligations as required above, the indemnifying party shall, at its option and in its sole and exclusive discretion, either (a) promptly replace or modify such materials, without loss of material functionality or performance, to make them non-infringing or (b) promptly procure for the indemnified party the right to continue using the materials pursuant to this Agreement. Any costs associated with implementing either of the above alternatives will be borne by the indemnifying party. If after using reasonable endeavors, the indemnifying party fails to provide one of the foregoing remedies within forty-five (45) days of notice of the claim, the indemnified party shall have the right to terminate this Agreement with no further liability to the indemnifying party.

Intellectual Property Warranties. 5.9.1(i) To the best of Assignor's knowledge, the Intellectual Property assigned and the Software and Excluded Technology licensed hereunder shall be sufficient in all respects for the operation of the business of Assignee as now conducted and as proposed to be conducted. (ii) The Intellectual Property has been independently created and developed solely by Assignor, and Assignor owns or has obtained all rights, licenses, releases, assignments, or other rights, and made all payments and satisfied all obligations to any third party or employee, necessary to make the assignment set forth in Section 2 hereof. Client warrants No third party or employee shall have any right, title or interest in and to the Intellectual Property. Each employee, consultant or contractor of Assignor who has contributed to the development of the Intellectual Property has entered into an agreement requiring such employee, consultant or contractor to assign to Assignor forever all right, title and interest that such employee, consultant or contractor may have accrued in the use Intellectual Property, and Assignee shall not incur any liability or obligation, including payment or other compensation, to such employee, consultant, contractor or other third party by UST and/or any Personnel reason of any the assignment in Section 2 hereof (iii) Assignee has the full corporate power to enter into this Agreement and all materials as furnished by Client to UST carry out its obligations under this Agreement and/or any SOW Agreement. Assignor has not previously granted, and will not violate grant, any right, license or conflict interest in, to or under the Intellectual Property, Software or Excluded Technology, or any portion thereof, which is inconsistent with the rights and licenses granted to Assignee herein or that will adversely affect any IPR exercise by Assignee of its rights under this Agreement. There are no actions, suits, investigations, claims or proceedings pending or, to the knowledge of Assignor, threatened in any third parties includingway relating to the Intellectual Property, but Software or Excluded Technology. (iv) The Intellectual Property, Software or Excluded Technology do not limited toand will not infringe or misappropriate any patents, copyrights, patents and trademarks. If Personnel perform code renovation servicestrade secrets, Client warrants that it is authorized to permit UST and Personnel to use all relevant code for the purposes of performing Services. Client agrees to indemnify and hold harmless UST and its Affiliates and each of their directors, officers, agents, contractors and employees, including Personnel, against any and all costs, losses, liabilities, expenses and judgments incurred, including but not limited to reasonable attorneys’ fees and court costs (collectively, “Losses”), resulting from trade names or arising out other intellectual or proprietary rights of any claimthird-party, demand, or cause of action brought by a third party based on or arising out of Client’s breach of warranty as set forth in this Section c. 5.9.2. UST warrants that the use by Client and Assignor is not aware of any claims or basis for such infringement. (v) The Software will function correctly when dealing with dates, times, and all Deliverables furnished date/time (including calculating, comparing and sequencing) from, into and between the twentieth and twenty-first centuries, and the years 1999 and 2000 and leap year calculations, and with respect to Client by UST under this Agreement the processing of date/time data, the Software will neither contain nor create any logical or mathematical inconsistency, will not violate or conflict with any United Kingdom Intellectual Property Rights of any third parties includingmalfunction, but and will not limited to, copyrights, patents and trademarks, provided that Client or its personnel have not altered such Deliverables; and provided further that this warranty shall not apply cease to the portion of any Deliverable that constitute materials furnished by Client to UST. UST agrees to indemnify and hold harmless Client, its directors, officers, agents, contractors and employees against any and all Losses, to the extent resulting from or arising out of any claim, demand, or cause of action brought by a third party based on, or arising out of UST’s breach of warranty as set forth in this Section 5.9.2; provided, however, that UST’s obligation shall not extend to Losses that arise out of or result from the negligence, willful misconduct, or breach of this Agreement by Client or Client’s personnel. Further, UST shall have no indemnification obligation under this Section 5.8.2 for any Losses resulting from or arising out of: (a) the combination of the Deliverable by Client with software, hardware, or other material not supplied (or approved in writing) by UST; (b) the modification of any Deliverable by Client, or by UST in compliance with specific written design specifications or instructions provided by Client and required by Client to be followed by UST; (c) the direct or contributory infringement by Client through the use of any Deliverable other than in accordance with the terms and conditions of this Agreement or the applicable SOW; (d) use of any Deliverable by Client other than in accordance with the terms and conditions of this Agreement or the applicable SOW; (e) continued allegedly infringing activity by (or permitted or enabled by) Client after Client has been notified by UST of the possible infringement; or (f) Client’s negligence or willful misconduct, in each case to the extent such infringement would not occur or exist but for the actions described in (a) – (f). The indemnity under this Section 5.9.2, shall be Client’s sole and exclusive remedy for UST’s breach of the warranty as set forth in this Section 5.9.2function. 5.9.3. In the event of an indemnification claim arising from Sections 5.9.2or 5.9.2above, the parties will follow the procedure in Section 10.1. If the materials furnished by an indemnitor become or are likely to become the subject of an infringement claim, then, in addition to the indemnification obligations as required above, the indemnifying party shall, at its option and in its sole and exclusive discretion, either (a) promptly replace or modify such materials, without loss of material functionality or performance, to make them non-infringing or (b) promptly procure for the indemnified party the right to continue using the materials pursuant to this Agreement. Any costs associated with implementing either of the above alternatives will be borne by the indemnifying party. If after using reasonable endeavors, the indemnifying party fails to provide one of the foregoing remedies within forty-five (45) days of notice of the claim, the indemnified party shall have the right to terminate this Agreement with no further liability to the indemnifying party.

Intellectual Property Warranties. 5.9.1. Client warrants (a) Licensors jointly and severally represent and warrant that (i) the Licensed Intellectual Property Rights were developed solely by Licensors or acquired by the Licensors pursuant to a valid, binding and enforceable agreement, and that no third party owns any rights in the Licensed Intellectual Property Rights, and the Licensed Intellectual Property Rights are not subject to any Encumbrance, (ii) there is no demand, claim, suit, action, arbitration or other proceeding pending or, to any Licensors’ knowledge, threatened against any Licensor which alleges that the use by UST and/or any Personnel Licensed Intellectual Property Rights infringes upon the proprietary rights or intellectual property rights of any third party, and all materials as furnished by Client to UST under (iii) this Agreement and/or any SOW will does not violate or conflict with any IPR of other agreement to which any third parties including, but not limited to, copyrights, patents and trademarks. If Personnel perform code renovation services, Client warrants that it Licensor is authorized to permit UST and Personnel to use all relevant code a party. (b) Except for the purposes obligations of performing Services. Client agrees Licensors with respect to indemnify and hold harmless UST and its Affiliates and each of their directors, officers, agents, contractors and employees, including Personnel, against any and all costs, losses, liabilities, expenses and judgments incurred, including but not limited to reasonable attorneys’ fees and court costs (collectively, “Losses”), resulting from or arising out of any claim, demand, or cause of action brought by a third party claims based on or arising out the infringement of Client’s breach of warranty as set forth in this Section c. 5.9.2. UST warrants that the use by Client of any and all Deliverables furnished to Client by UST under this Agreement will not violate or conflict with any United Kingdom Licensed Intellectual Property Rights of any third parties including, but not limited to, copyrights, patents and trademarks, as provided that Client or its personnel have not altered such Deliverables; and provided further that this warranty shall not apply to the portion of any Deliverable that constitute materials furnished by Client to UST. UST agrees to indemnify and hold harmless Client, its directors, officers, agents, contractors and employees against any and all Losses, to the extent resulting from or arising out of any claim, demand, or cause of action brought by a third party based on, or arising out of UST’s breach of warranty as set forth in this Section 5.9.2; provided, however, that UST’s obligation shall not extend to Losses that arise out of or result from the negligence, willful misconduct, or breach 8 of this Agreement by Client or Client’s personnel. FurtherAgreement, UST shall have no indemnification obligation under this Section 5.8.2 for any Losses resulting from or arising out of: (a) the combination of the Deliverable by Client with softwareLICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES, hardwareEXPRESS OR IMPLIED, or other material not supplied (or approved in writing) by UST; (b) the modification of any Deliverable by ClientAS TO THE PERFORMANCE OF THE LICENSED INTELLECTUAL PROPERTY RIGHTS, or by UST in compliance with specific written design specifications or instructions provided by Client and required by Client to be followed by UST; INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY LICENSORS AND WAIVED BY LICENSEE. (c) the direct or contributory infringement by Client through the use of any Deliverable other than in accordance with the terms and conditions of this Agreement or the applicable SOW; (d) use of any Deliverable by Client other than in accordance with the terms and conditions of this Agreement or the applicable SOW; (e) continued allegedly infringing activity by (or permitted or enabled by) Client after Client has been notified by UST of the possible infringement; or (f) Client’s negligence or willful misconductIN NO EVENT SHALL ANY LICENSORS OR ITS AGENTS, in each case to the extent such infringement would not occur or exist but for the actions described in (a) – (f). The indemnity under this Section 5.9.2SUBCONTRACTORS OR EMPLOYEES OR LICENSORS SHALL BE LIABLE FOR ANY CONSEQUENTIAL OR INDIRECT DAMAGES, shall be Client’s sole and exclusive remedy for UST’s breach of the warranty as set forth in this Section 5.9.2INCLUDING LOSS OF PROFITS, REVENUE OR DATA INCURRED BY LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, BREACH OF WARRANTY OR TORT, EVEN IF LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM ANY BREACH OF THIS AGREEMENT BY LICENSORS. 5.9.3. In the event of an indemnification claim arising from Sections 5.9.2or 5.9.2above, the parties will follow the procedure in Section 10.1. If the materials furnished by an indemnitor become or are likely to become the subject of an infringement claim, then, in addition to the indemnification obligations as required above, the indemnifying party shall, at its option and in its sole and exclusive discretion, either (a) promptly replace or modify such materials, without loss of material functionality or performance, to make them non-infringing or (b) promptly procure for the indemnified party the right to continue using the materials pursuant to this Agreement. Any costs associated with implementing either of the above alternatives will be borne by the indemnifying party. If after using reasonable endeavors, the indemnifying party fails to provide one of the foregoing remedies within forty-five (45) days of notice of the claim, the indemnified party shall have the right to terminate this Agreement with no further liability to the indemnifying party.