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. (b) THIS INDEMNITY SHALL NOT COVER ANY CLAIM: (i) for patent infringement based upon any combination made by Buyer of any Bloom System with any other product or products or modifications made by Buyer to any part of the Bloom System, unless such combination or modification is in accordance with Seller’s specifications for the Bloom System, or unless the combination or modification is made by or on behalf of or at the written request of Seller; or (ii) for infringement of any proprietary rights arising in whole or in part from changes; combinations or modifications made to the Bloom System by Buyer or from any aspect of the Bloom System which was designed by or requested by Buyer on a custom basis.

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. (b) THIS INDEMNITY SHALL NOT COVER ANY CLAIM: (i) for patent infringement based upon Intellectual Property infringement, conflict, violation or misuse arising from or in connection with any combination made by Buyer of any Bloom System with any other product or products or modifications made by or on behalf of Buyer to any part of the Bloom System, unless such combination or modification is (A) in accordance with Seller’s specifications for the Bloom System, or unless the combination or modification is (B) made by or on behalf of or at the written request of Seller where Seller has requested the specific combination or modification giving rise to the claim by Seller; or (ii) for infringement of any proprietary Intellectual Property rights arising in whole or in part from changes; combinations or modifications made to the Bloom System by Buyer or from any aspect of the Bloom System which was designed by or requested by the Buyer on a custom basis.

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. (ba) THIS INDEMNITY SHALL NOT COVER ANY CLAIM: (i) for patent infringement based upon Intellectual Property infringement, conflict, violation or misuse arising from or in connection with any combination made by Buyer of any Bloom System with any other product or products or modifications made by or on behalf of Buyer to any part of the Bloom System, unless (A) such combination or modification is in accordance with Seller’s specifications for the Bloom System, or unless the (B) such combination or modification is made by or on behalf of or at the written request of Seller; orSeller where Seller has requested the specific combination or modification giving rise to the claim by Buyer, or (C) such other product or products would not infringe the Intellectual Property rights of a third party but for the combination with any part of the Bloom System; (ii) for infringement of any proprietary Intellectual Property rights arising in whole or in part from changes; combinations or modifications made to the Bloom System by Buyer or from any aspect of the Bloom System which was designed by or requested by Buyer on a custom basis. For the avoidance of doubt, the integration of the Battery Solution into any Facility shall not constitute an alteration designed by or requested by Buyer on a custom basis; or (iii) for infringement of any Intellectual Property rights arising in whole or in part from any aspect of the Battery Solution (unless such infringement arises in whole or in part from any aspect of the parts or components supplied by Seller or any of its Affiliates to the Battery Solution Manufacturer that are used to manufacture the Battery Solution).

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. (b) THIS INDEMNITY SHALL NOT COVER ANY CLAIM: (i) for patent infringement based upon Intellectual Property infringement, conflict, violation or misuse arising from or in connection with any combination made by Buyer of any Bloom System with any other product or products or modifications made by or on behalf of Buyer to any part of the Bloom System, unless such combination or modification is (A) in accordance with Seller’s specifications for the Bloom System, or unless the combination or modification is (B) made by or on behalf of or at the written request of Seller where Seller has requested the specific combination or modification giving rise to the claim by Seller; or (ii) for infringement of any proprietary Intellectual Property rights arising in whole or in part from changes; combinations or modifications made to the Bloom System by Buyer or from any aspect of the Bloom System which was designed by or requested by the Buyer on a custom basis.

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. (b) THIS INDEMNITY SHALL NOT COVER ANY CLAIM: (i) for patent infringement based upon Intellectual Property infringement, conflict, violation or misuse arising from or in connection with any combination made by Buyer of any Bloom System with any other product or products or modifications made by or on behalf of Buyer to any part of the Bloom System, unless such combination or modification is (A) in accordance with Seller’s specifications for the Bloom System, or unless the combination or modification is (B) made by or on behalf of or at the written request of Seller where Seller has requested the specific combination or modification giving rise to the claim by Seller; or (ii) for infringement of any proprietary Intellectual Property rights arising in whole or in part from changes; combinations or modifications made to the Bloom System by Buyer or from any aspect of the Bloom System which was designed by or requested by the Buyer on a custom basis.

IP Indemnity. Section 16.1.1 (aInfringement Indemnity) Except as expressly limited shall be replaced in its entirety be the below: 16.1.1 Supplier will defend, Seller agrees to indemnifyhold harmless and indemnify Citi, defend its Affiliates and hold Buyer harmless their Personnel (collectively, the “Citi Indemnitees”) from and against any and all third losses, claims, liabilities, costs and expenses (including taxes, fees, fines, penalties, interest, reasonable expenses of investigation and attorneys’ fees and disbursements), with Supplier paying all reasonable expenses of investigation and attorneys’ fees and litigation related costs or disbursements as incurred and all losses, claims, liabilities and damages finally awarded against the Citi Indemnitees (or agreed by the indemnifying 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 a final settlement thereof) (icollectively “Damages”) 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 Systemarising out of, or (iv) when and if none of relating to, a claim by a third party that the first three options is reasonably available to SellerServices, 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 Deliverables 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. (b) THIS INDEMNITY SHALL NOT COVER ANY CLAIM: (i) for patent infringement based upon any combination made by Buyer of any Bloom System with any other product information or products or modifications made by Buyer to any part of the Bloom System, unless such combination or modification is in accordance with Seller’s specifications for the Bloom System, or unless the combination or modification is made materials furnished by or on behalf of Supplier, or at that the written request Citi Indemnitee’s use thereof or exercise of Seller; or any license rights related thereto, infringes (iiwhether directly, contributorily, by inducement or otherwise), misappropriates or violates such third party’s Intellectual Property Rights or other rights. The indemnification obligations of Supplier set forth in this Section 16.1.1 shall not apply to the extent the claim arises from: (a) for patent infringement of any proprietary rights arising in whole claims only, Supplier’s compliance with Citi’s information, technology, designs, written specifications or in part from changes; combinations or modifications made written instructions to the Bloom System extent related to a business process or function, including those incorporated into any Work Order or Deliverable, where the Services, Deliverables or any other materials furnished by Buyer Supplier would not be infringing without such compliance or from any aspect use by Supplier; (b) modification of a Deliverables by Citi or by a third party acting on behalf of Citi, where the Bloom System which was designed Deliverables would not be infringing without such modification; or (c) Citi’s use of Third Party Materials furnished by Supplier in conjunction with the Services or requested by Buyer on a custom basisDeliverable, where Citi has agreed in the Work Order to have direct responsibility for licensing or providing such Third Party Materials.”

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. (b) THIS INDEMNITY SHALL NOT COVER ANY CLAIM: (i) for patent infringement based upon Intellectual Property infringement, conflict, violation or misuse arising from or in connection with any combination made by Buyer of any Bloom New System with any other product or products or modifications made by or on behalf of Buyer to any part of the Bloom New System, unless (A) such combination or modification is in accordance with Seller’s specifications for the Bloom New System, or unless the (B) such combination or modification is made by or on behalf of or at the written request of SellerSeller where Seller has requested the specific combination or modification giving rise to the claim by Buyer, or (C) such other product or products would not infringe the Intellectual Property rights of a third party but for the combination with any part of the New System; or (ii) for infringement of any proprietary Intellectual Property rights arising in whole or in part from changes; combinations or modifications made to the Bloom System by Buyer or from any aspect of the Bloom New System which was designed by or requested by Buyer on a custom basis.

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. (b) THIS INDEMNITY SHALL NOT COVER ANY CLAIM: (i) for patent infringement based upon Intellectual Property infringement, conflict, violation or misuse that would not have been caused but for any combination made by Buyer of any Bloom Phase 2 New System with any other product or products or modifications made by or on behalf of Buyer to any part of the Bloom Phase 2 New System, unless (A) such combination or modification is in accordance with Seller’s specifications for the Bloom SystemPhase 2 New System or is otherwise contemplated in the Documentation, or unless the (B) such combination or modification is made by or on behalf of or at the written request of SellerSeller where Seller has requested the specific combination or modification giving rise to the claim by Buyer, or (C) such other product or products would not infringe the Intellectual Property rights of a third party but for the combination with any part of the Phase 2 New System; oror DM_US 164459518-11.107145.0012 (ii) for infringement of any proprietary Intellectual Property rights arising in whole or in part from changes; combinations or modifications made to the Bloom System by Buyer or from any aspect of the Bloom Phase 2 New System which was designed by or requested by Buyer on a custom basisbasis (unless Seller knew or had reason to know that such design would cause such infringement).