Common use of IP Indemnity Clause in Contracts

IP Indemnity. (a) Except as expressly limited below, Seller agrees to indemnify, defend and hold Buyer harmless from any and all third party claims resulting from any alleged infringement of patents, copyrights or other third party intellectual property rights, or from the misuse of third party trade secrets by Bloom Systems purchased by Buyer from Seller. Buyer shall give Seller prompt notice of any such claims. Buyer shall give Seller control of the defense of such claim and Buyer authorizes Seller to settle or defend such claims in its sole discretion on Buyer’s behalf, subject to the proviso of the following sentence. Buyer shall assist Seller in defending any such claim (at Seller’s reasonable expense) upon request by Seller. Should Buyer be enjoined from selling or using the Bloom System as a result of such claim, Seller will, at its sole option and discretion, either (i) procure or otherwise obtain for Buyer the right to use or sell the Bloom System; (ii) modify the Bloom System so that it becomes non-infringing but still substantially meets the original functional specifications of the Bloom System (in which event, for the avoidance of doubt, all warranties hereunder shall continue to apply unmodified); (iii) upon return of the Bloom System to Seller, as directed by Seller, provide to Buyer a non-infringing Bloom System meeting the functional specifications of the Bloom System, or (iv) when and if none of the first three options is reasonably available to Seller, authorize the return of the Bloom System to Seller and, upon receipt thereof, return to Buyer all monies paid by Buyer to Seller for the cost of the Bloom System itself, net of any monies paid by Seller to Buyer for any performance guaranties or other warranty claims; provided that Seller shall not elect the option in the preceding clause (i) without the Buyer’s written consent if such election is reasonably expected to materially decrease Buyer’s revenues or materially increase Buyer’s operating expenses.

IP Indemnity. (a) Except as expressly limited below, Seller agrees to indemnify, defend and hold Buyer Buyer, its members, and their Affiliates and their respective managers, officers, directors, employees and agents harmless from and against any and all third party claims resulting Third Party Claims and Indemnifiable Losses (including in connection with obtaining any Intellectual Property necessary for continuation of completion, operation and maintenance of Bloom Systems purchased by Buyer from Seller), arising from or in connection with any alleged infringement infringement, conflict, violation or misuse of any patents, copyrights copyrights, trade secrets or other third party intellectual property rights, or from the misuse of third party trade secrets Intellectual Property rights by Bloom Systems purchased by Buyer from SellerSeller (or the (b) use, operation or maintenance thereof) or the exercise of the IP License or the Software License granted pursuant to Section 11.1 and Section 11.2 hereunder. Buyer shall give Seller prompt notice of any such claims. Buyer Seller shall give be entitled to participate in, and, unless in the opinion of counsel for Seller a conflict of interest between the Parties may exist with respect to such claim, assume control of the defense of such claim and with counsel reasonably acceptable to the Buyer. Buyer authorizes Seller to settle or defend such claims in its sole discretion on Buyer’s behalf, without imposing any monetary or other obligation or liability on the Buyer and subject to the proviso of the following sentenceBuyer’s participation rights set forth in this Section 13.1. Buyer shall assist Seller in defending any such claim (upon reasonable request by Seller and, at Seller’s reasonable expense) upon request by , in defending any such claim. If Seller does not assume the defense of such claim, or if a conflict precludes Seller from assuming the defense, then Seller shall reimburse Buyer on a monthly basis for Buyer’s reasonable defense expenses of such claim through separate counsel of Buyer’s choice reasonably acceptable to Seller. Even if Seller assumes the defense of such claim, Buyer may, at its sole option, participate in the defense, at Buyer’s expense, without relieving Seller of any of its obligations hereunder. Should Buyer be enjoined from selling or using the any Bloom System as a result of such claim, Seller will, at its sole option and discretion, either (i) procure or otherwise obtain for Buyer the right to use or sell the Bloom System; (ii) modify the Bloom System so that it becomes non-infringing but still substantially meets the original functional specifications of the Bloom System (in which event, for the avoidance of doubt, all warranties hereunder shall continue to apply unmodified); (iii) upon return of the Bloom System to Seller, as directed by Seller, provide to Buyer a non-infringing Bloom System meeting the functional specifications of the Bloom System, or (iv) when and if none of the first three options is reasonably available to Seller, authorize the return of the Bloom System to Seller and, upon receipt thereof, return to Buyer all monies paid by Buyer to Seller for the cost of the Bloom System itselfSystems and BOF, net of any monies paid by Seller to Buyer for any performance guaranties or other warranty claims; provided that Seller shall not elect the option in the preceding clause (i) without the Buyer’s written consent if such election is could reasonably be expected to materially decrease Buyer’s revenues or materially increase Buyer’s operating expenses.

IP Indemnity. (a) Except as expressly limited below, Seller agrees to indemnify, defend and hold Buyer Buyer, its members, and their Affiliates and their respective managers, officers, directors, employees and agents harmless from and against any and all third party claims resulting Third Party Claims and Indemnifiable Losses (including in connection with obtaining any Intellectual Property necessary for continuation of completion, operation and maintenance of Bloom Systems purchased by Buyer from Seller), arising from or in connection with any alleged infringement infringement, conflict, violation or misuse of any patents, copyrights copyrights, trade secrets or other third party intellectual property rights, or from the misuse of third party trade secrets Intellectual Property rights by Bloom Systems purchased by Buyer from SellerSeller (or the use, operation or maintenance thereof) or the exercise of the IP License or the Software License granted pursuant to Section 11.1 and Section 11.2 hereunder. Buyer shall give Seller prompt notice of any such claims. Buyer Seller shall give be entitled to participate in, and, unless in the opinion of counsel for Seller a conflict of interest between the Parties may exist with respect to such claim, assume control of the defense of such claim and with counsel reasonably acceptable to the Buyer. Buyer authorizes Seller to settle or defend such claims in its sole discretion on Buyer’s behalf, without imposing any monetary or other obligation or liability on the Buyer and subject to the proviso of the following sentenceBuyer’s participation rights set forth in this Section 13.1. Buyer shall assist Seller in defending any such claim (upon reasonable request by Seller and, at Seller’s reasonable expense) upon request by , in defending any such claim. If Seller does not assume the defense of such claim, or if a conflict precludes Seller from assuming the defense, then Seller shall reimburse Buyer on a monthly basis for Buyer’s reasonable defense expenses of such claim through separate counsel of Buyer’s choice reasonably acceptable to Seller. Even if Seller assumes the defense of such claim, Buyer may, at its sole option, participate in the defense, at Buyer’s expense, without relieving Seller of any of its obligations hereunder. Should Buyer be enjoined from selling or using the any Bloom System as a result of such claim, Seller will, at its sole option and discretion, either (i) procure or otherwise obtain for Buyer the right to use or sell the Bloom System; (ii) modify the Bloom System so that it becomes non-infringing but still substantially meets the original functional specifications of the Bloom System (in which event, for the avoidance of doubt, all warranties hereunder shall continue to apply unmodified); (iii) upon return of the Bloom System to Seller, as directed by Seller, provide to Buyer a non-infringing Bloom System meeting the functional specifications of the Bloom System, or (iv) when and if none of the first three options is reasonably available to Seller, authorize the return of the Bloom System to Seller and, upon receipt thereof, return to Buyer all monies paid by Buyer to Seller for the cost of the Bloom System itselfSystems and BOF, net of any monies paid by Seller to Buyer for any performance guaranties or other warranty claims; provided that Seller shall not elect the option in the preceding clause (i) without the Buyer’s written consent if such election is could reasonably be expected to materially decrease Buyer’s revenues or materially increase Buyer’s operating expenses.

IP Indemnity. (a) Except as expressly limited below, Seller agrees to indemnify, defend and hold Buyer Buyer, its members, and their Affiliates and their respective managers, officers, directors, employees and agents harmless from and against any and all third party claims resulting Third Party Claims and Indemnifiable Losses (including in connection with obtaining any Intellectual Property necessary for continuation of completion, operation and maintenance of Bloom Systems purchased by Buyer from Seller), arising from or in connection with any alleged infringement infringement, conflict, violation or misuse of any patents, copyrights copyrights, trade secrets or other third party intellectual property rights, or from the misuse of third party trade secrets Intellectual Property rights by Bloom Systems purchased by Buyer from SellerSeller (or the use, operation or maintenance thereof) or the exercise of the IP License or the Software License granted pursuant to Section 11.1 and Section 11.2 hereunder. Buyer shall give Seller prompt notice of any such claims. Buyer Seller shall give be entitled to participate in, and, unless in the opinion of counsel for Seller a conflict of interest between the Parties may exist with respect to such claim, assume control of the defense of such claim and with counsel reasonably acceptable to Buyer. Buyer authorizes Seller to settle or defend such claims in its sole discretion on Buyer’s behalf, without imposing any monetary or other obligation or liability on Buyer and subject to the proviso of the following sentenceBuyer’s participation rights set forth in this Section13.1. Buyer shall assist Seller in defending any such claim (upon reasonable request by Seller and, at Seller’s reasonable expense) upon request by , in defending any such claim. If Seller does not assume the defense of such claim, or if a conflict precludes Seller from assuming the defense, then Seller shall reimburse Buyer on a monthly basis for Buyer’s reasonable defense expenses of such claim through separate counsel of Buyer’s choice reasonably acceptable to Seller. Even if Seller assumes the defense of such claim, Buyer may, at its sole option, participate in the defense, at Buyer’s expense, without relieving Seller of any of its obligations hereunder. Should Buyer be enjoined from selling or using the any Bloom System as a result of such claim, Seller will, at its sole option and discretion, either (ieither(i) procure or otherwise obtain for Buyer the right to use or sell the Bloom System; (ii) modify the Bloom System so that it becomes non-infringing but still substantially meets the original functional specifications of the Bloom System (in which event, for the avoidance of doubt, all warranties hereunder shall continue to apply unmodified); (iii) upon return of the Bloom System to Seller, as directed by Seller, provide to Buyer a non-infringing Bloom System meeting the functional specifications of the Bloom System, or (iv) when and if none of the first three options is reasonably available to Seller, authorize the return of the Bloom System to Seller and, upon receipt thereof, return to Buyer all monies paid by Buyer to Seller for the cost of the Bloom System itselfSystems and BOF, net of any monies paid by Seller to Buyer for any performance guaranties or other warranty claims; provided that Seller shall not elect the option in the preceding clause (i) without the Buyer’s written consent if such election is could reasonably be expected to materially decrease Buyer’s revenues or materially increase Buyer’s operating expenses.

IP Indemnity. (a) Except as expressly limited below, Seller agrees to indemnify, defend and hold Buyer Buyer, its members, and their Affiliates and their respective managers, officers, directors, employees and agents harmless from and against any and all third party claims resulting Third Party Claims and Indemnifiable Losses (including in connection with obtaining any Intellectual Property necessary for continuation of completion, operation and maintenance of Bloom Systems purchased by Buyer from Seller), arising from or in connection with any alleged infringement infringement, conflict, violation or misuse of any patents, copyrights copyrights, trade secrets or other third party intellectual property rights, or from the misuse of third party trade secrets Intellectual Property rights by Bloom Systems purchased by Buyer from SellerSeller (or the use, operation or maintenance thereof) or the exercise of the IP License or the Software License granted pursuant to Sections 7.1 and 7.2 hereunder. Buyer shall give Seller prompt notice of any such claims. Buyer Seller shall give be entitled to participate in, and, unless in the opinion of counsel for Seller a conflict of interest between the Parties may exist with respect to such claim, assume control of the defense of such claim and with counsel reasonably acceptable to the Buyer. Buyer authorizes Seller to settle or defend such claims in its sole discretion on Buyer’s behalf, without imposing any monetary or other obligation or liability on the Buyer and subject to the proviso of the following sentenceBuyer’s participation rights set forth in this Section 10.1. Buyer shall assist Seller in defending any such claim (upon reasonable request by Seller and, at Seller’s reasonable expense) upon request by , in defending any such claim. If Seller does not assume the defense of such claim, or if a conflict precludes Seller from assuming the defense, then Seller shall reimburse Buyer on a monthly basis for Buyer’s reasonable defense expenses of such claim through separate counsel of Buyer’s choice reasonably acceptable to Seller. Even if Seller assumes the defense of such claim, Buyer may, at its sole option, participate in the defense, at Buyer’s expense, without relieving Seller of any of its obligations hereunder. Should Buyer be enjoined from selling or using the any Bloom System as a result of such claim, Seller will, at its sole option and discretion, either (i) procure or otherwise obtain for Buyer the right to use or sell the Bloom System; (ii) modify the Bloom System so that it becomes non-infringing but still substantially meets the original functional specifications of the Bloom System (in which event, for the avoidance of doubt, all warranties hereunder shall continue to apply unmodified); (iii) upon return of the Bloom System to Seller, as directed by Seller, provide to Buyer a non-infringing Bloom System meeting the functional specifications of the Bloom System, or (iv) when and if none of the first three options is reasonably available to Seller, authorize the return of the Bloom System to Seller and, upon receipt thereof, return to Buyer all monies paid by Buyer to Seller for the cost of the Bloom System itselfSystems and BOF, net of any monies paid by Seller to Buyer for any performance guaranties or other warranty claims; provided that Seller shall not elect the option in the preceding clause (i) without the Buyer’s written consent if such election is reasonably expected to materially decrease Buyer’s revenues or materially increase Buyer’s operating expenses.

IP Indemnity. (a) Except as expressly limited below, Seller agrees to indemnify, defend and hold Buyer Buyer, its members and its permitted successors and assigns, and their Affiliates and their respective managers, officers, directors, employees and agents harmless from and against any and all third party claims resulting from Third Party Claims and Indemnifiable Losses (including in connection with obtaining any alleged infringement Intellectual Property necessary for continuation of patentscompletion, copyrights or other third party intellectual property rights, or from the misuse operation and maintenance of third party trade secrets by Bloom Phase 2 New Systems purchased by Buyer from Seller), arising from or in connection with any alleged infringement, conflict, violation, misappropriation or misuse of any patents, copyrights, trade secrets or other third party Intellectual Property rights by the Phase 2 New Systems purchased by Buyer from Seller (or the use, operation or maintenance thereof) or the exercise of the IP License or the Software License granted pursuant to Section 9.1 and Section 9.2 hereunder. Buyer shall give Seller prompt notice of any such claims. Buyer Seller shall give be entitled to participate in, and, unless in the opinion of counsel for Seller a conflict of interest between the Parties may exist with respect to such claim, assume control of the defense of such claim and with DM_US 164459518-11.107145.0012 counsel reasonably acceptable to Buyer. Buyer authorizes Seller to settle or defend such claims in its sole discretion on Buyer’s behalf, without imposing any monetary or other obligation or liability on Buyer and subject to Buyer’s participation rights set forth in this Section 11.1 and further provided that any such settlement: (i) includes a full and complete release in favor of Buyer; and (ii) does not require any admission of fault or liability on the proviso part of the following sentenceBuyer. Buyer shall assist Seller in defending any such claim (upon reasonable request by Seller and, at Seller’s reasonable expense) upon request by , in defending any such claim. If Seller does not assume the defense of such claim, or if a conflict precludes Seller from assuming the defense, then Seller shall reimburse Buyer on a monthly basis for Buyer’s reasonable defense expenses of such claim through separate counsel of Buyer’s choice reasonably acceptable to Seller. Even if Seller assumes the defense of such claim, Buyer may, at its sole option, participate in the defense, at Buyer’s expense, without relieving Seller of any of its obligations hereunder. Should Buyer be enjoined from selling or using the Bloom any Phase 2 New System as a result of such claim, or should Buyer reasonably and in good faith conclude that Buyer is likely to be so enjoined, Seller will, at its sole option and discretion, either (i) procure or otherwise obtain for Buyer the right to use or sell the Bloom SystemPhase 2 New System in the form purchased by Buyer; (ii) modify the Bloom Phase 2 New System so that it becomes non-infringing but still substantially meets the original functional specifications of the Bloom Phase 2 New System (in which event, for the avoidance of doubt, all warranties hereunder shall continue to apply unmodified); (iii) upon return of the Bloom Phase 2 New System to Seller, as directed by Seller, provide to Buyer a non-infringing Bloom Phase 2 New System meeting the functional specifications of the Bloom Phase 2 New System, or (iv) when and if none of the first three options is reasonably available to SellerSeller after having exercised good faith efforts to pursue such options, authorize the return of the Bloom Phase 2 New System to Seller and, upon receipt thereof, return to Buyer all monies paid by Buyer to Seller for the cost of the Bloom System itselfPhase 2 New Systems and BOF, net of any monies paid by Seller to Buyer for any performance guaranties or other warranty claimspursuant to the Phase 2 New System Portfolio Output Warranty, Efficiency Guaranty and/or Output Guaranty to the extent such Seller payments are allocable to such Phase 2 New System; provided that Seller shall not elect the option in the preceding clause (i) without the Buyer’s written consent if such election is could reasonably be expected to materially decrease Buyer’s revenues or materially increase Buyer’s operating expenses.

IP Indemnity. (a) Except as expressly limited below, Seller agrees to indemnify, defend and hold Buyer Buyer, its members, and their Affiliates and their respective managers, officers, directors, employees and agents harmless from and against any and all third party claims resulting from Third Party Claims and Indemnifiable Losses (including in connection with obtaining any alleged infringement Intellectual Property necessary for continuation of patentscompletion, copyrights or other third party intellectual property rights, or from the misuse operation and maintenance of third party trade secrets by Bloom New Systems purchased by Buyer from Seller), arising from or in connection with any alleged infringement, conflict, violation or misuse of any patents, copyrights, trade secrets or other third party Intellectual Property rights by New Systems purchased by Buyer from Seller (or the use, operation or maintenance thereof) or the exercise of the IP License or the Software License granted pursuant to Section 9.1 and Section 9.2 hereunder. Buyer shall give Seller prompt notice of any such claims. Buyer Seller shall give be entitled to participate in, and, unless in the opinion of counsel for Seller a conflict of interest between the Parties may exist with respect to such claim, assume control of the defense of such claim and with counsel reasonably acceptable to Buyer. Buyer authorizes Seller to settle or defend such claims in its sole discretion on Buyer’s behalf, without imposing any monetary or other obligation or liability on Buyer and subject to the proviso of the following sentenceBuyer’s participation rights set forth in this Section 11.1. Buyer shall assist Seller in defending any such claim (upon reasonable request by Seller and, at Seller’s reasonable expense) upon request by , in defending any such claim. If Seller does not assume the defense of such claim, or if a conflict precludes Seller from assuming the defense, then Seller shall reimburse Buyer on a monthly basis for Buyer’s reasonable defense expenses of such claim through separate counsel of Buyer’s choice reasonably acceptable to Seller. Even if Seller assumes the defense of such claim, Buyer may, at its sole option, participate in the defense, at Buyer’s expense, without relieving Seller of any of its obligations hereunder. Should Buyer be enjoined from selling or using the Bloom any New System as a result of such claim, Seller will, at its sole option and discretion, either (i) procure or otherwise obtain for Buyer the right to use or sell the Bloom New System; (ii) modify the Bloom New System so that it becomes non-infringing but still substantially meets the original functional specifications of the Bloom New System (in which event, for the avoidance of doubt, all warranties hereunder shall continue to apply unmodified); (iii) upon return of the Bloom New System to Seller, as directed by Seller, provide to Buyer a non-infringing Bloom New System meeting the functional specifications of the Bloom New System, or (iv) when and if none of the first three options is reasonably available to Seller, authorize the return of the Bloom New System to Seller and, upon receipt thereof, return to Buyer all monies paid by Buyer to Seller for the cost of the Bloom System itselfNew Systems and BOF, net of any monies paid by Seller to Buyer for any performance guaranties or other warranty claimspursuant to the New System Portfolio Output Warranty, Efficiency Guaranty and/or Output Guaranty to the extent such Seller payments are allocable to such New System; provided that Seller shall not elect the option in the preceding clause (i) without the Buyer’s written consent if such election is could reasonably be expected to materially decrease Buyer’s revenues or materially increase Buyer’s operating expenses.