Intellectual Property Indemnification Seller shall defend, indemnify and hold Purchaser and its Affiliates harmless from and against any and all expenses, costs, claims, demands, causes of action and damages of whatever kind which Purchaser may incur in connection with any suit or claim of infringement of any patent, copyright or trademark, or misappropriation of any trade secret or other intellectual property right resulting from (i) Purchaser's or its Affiliates' use of any portion of the Equipment as contemplated in the Proposal and otherwise in accordance with this Sales Agreement or applicable Equipment documentation delivered by Purchaser by Seller hereunder, or (ii) performance of the Work, except, in each case with respect to each of the foregoing clauses (i) and (ii), to the extent directly attributable to Third-Party Hardware or Third-Party Software. Seller shall receive written notice from Purchaser within ten (10) days after proper legal service is received by Purchaser of any such suit or claim, provided that failure to receive such notice shall not relieve Seller of its obligations under this Article 3 except to the extent that Seller's ability to defend such suit or claim is materially impaired due to such failure. Seller is hereby authorized by Purchaser to, at Seller's expense, appear in and assume the defense of, and be given the complete control of the settlement of, any such suit or claim; provided that (a) if Purchaser or any of its Affiliates wishes to participate in the defense and settlement of the claim, Purchaser or any of its Affiliates may do at its own cost, (b) Purchaser is kept timely informed of all material actions taken by Seller in connection with any such settlement, suit or claim (including, without limitation, of settlement offers and responses (to the extent the delivery of such information does not require Seller to waive work product immunity or attorney/client privilege or otherwise violate the terms of any protective order between Seller and any third party plaintiff or defendant)); and (c) Seller shall not enter into or acquiesce to any settlement admitting to or stipulating to any guilt, fault, liability or wrongdoing on the part of Purchaser or any of its Affiliates without Purchaser's prior written consent. In the event that Purchaser's right or ability to use the Equipment is threatened or impaired as a result of any such suit or claim, Seller shall, at its own expense, do one of the following, (1) diligently procure for Purchaser the right to continue using the Equipment, or (2) modify the Equipment or, if necessary and by mutual agreement, substitute functionally equivalent Equipment, to the extent necessary to avoid infringement or misappropriation; provided in each case that if such modified or substituted equipment fails to comply with all Specifications applicable to the original, unmodified Equipment, Purchaser shall be entitled to equitable compensation with respect to such noncompliance. Seller hereby assigns to or otherwise transfers to the benefit of Purchaser all of its right, title and interest in and to any intellectual property right infringement or misappropriation indemnification or defense rights Seller may have with respect to Third Party Software and Third Party Hardware, and will, at its expense, take any actions as may be necessary to enable Purchaser to exercise such rights and realize such benefit to the fullest extent possible. It is mutually agreed that the provisions set forth herein are Seller's only obligations with respect to infringement of any patent, copyright or trademark, or misappropriation of any trade secret or other intellectual property right.
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 Infringement To the knowledge of the Company and the Operating Partnership and except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, neither the Company nor any of its Subsidiaries has infringed or is infringing the intellectual property of a third party, and neither the Company nor any of its Subsidiaries has received notice of a claim by a third party to the contrary, except for any such notice that would not reasonably be expected to have a Material Adverse Effect.
Infringement Indemnification (a) BNYM shall defend and indemnify Company against any third party claim alleging that the Licensed System infringes in any material respect upon any United States patent or copyright or any trade secret or other proprietary right of any person. BNYM shall have no liability or obligation under this Section 5.1 unless Company gives written notice to BNYM within ten (10) days (provided that later notice shall relieve BNYM of its liability and obligations under this Section 5.1 only to the extent that BNYM is prejudiced by such later notice) after any applicable infringement claim is initiated against Company and allows BNYM to have sole control of the defense or settlement of the claim. The remedies provided in this Section 5.1 are the Company's sole remedies for third party claims against the Company alleging infringement by the Licensed System. If any applicable claim is initiated, or in BNYM's sole opinion is likely to be initiated, then BNYM shall have the option, at its expense, to:
Notification of Infringement Each party agrees to provide written notice to the other party promptly after becoming aware of any infringement of the Patent Rights.
Intellectual Property Claims Borrower is the sole owner of, or otherwise has the right to use, the Intellectual Property. Except as described on Schedule 5.9,(i) each of the material Copyrights, Trademarks and Patents is valid and enforceable, (ii) no material part of the Intellectual Property has been judged invalid or unenforceable, in whole or in part, and (iii) no claim has been made to Borrower that any material part of the Intellectual Property violates the rights of any third party. Exhibit D is a true, correct and complete list of each of Borrower’s Patents, registered Trademarks, registered Copyrights, and material agreements under which Borrower licenses Intellectual Property from third parties (other than shrink-wrap software licenses), together with application or registration numbers, as applicable, owned by Borrower or any Subsidiary, in each case as of the Closing Date. Borrower is not in material breach of, nor has Borrower failed to perform any material obligations under, any of the foregoing contracts, licenses or agreements and, to Borrower’s knowledge, no third party to any such contract, license or agreement is in material breach thereof or has failed to perform any material obligations thereunder.
Indemnification Procedure for Third Party Claims (a) In the event that any party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Party Claim”), such Indemnified Person must notify the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
Conduct of Indemnification Proceedings Promptly after receipt by any person of any notice of any loss, claim, damage or liability or any action in respect of which indemnity may be sought pursuant to Section 4.1 or 4.2, such person (the “Indemnified Party”) shall, if a claim in respect thereof is to be made against any other person for indemnification hereunder, notify such other person (the “Indemnifying Party”) in writing of the loss, claim, judgment, damage, liability or action; provided, however, that the failure by the Indemnified Party to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which the Indemnifying Party may have to such Indemnified Party hereunder, except and solely to the extent the Indemnifying Party is actually prejudiced by such failure. If the Indemnified Party is seeking indemnification with respect to any claim or action brought against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in such claim or action, and, to the extent that it wishes, jointly with all other Indemnifying Parties, to assume control of the defense thereof with counsel satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of such claim or action, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that in any action in which both the Indemnified Party and the Indemnifying Party are named as defendants, the Indemnified Party shall have the right to employ separate counsel (but no more than one such separate counsel) to represent the Indemnified Party and its controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Indemnified Party against the Indemnifying Party, with the fees and expenses of such counsel to be paid by such Indemnifying Party if, based upon the written opinion of counsel of such Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, consent to entry of judgment or effect any settlement of any claim or pending or threatened proceeding in respect of which the Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such judgment or settlement includes an unconditional release of such Indemnified Party from all liability arising out of such claim or proceeding.
Indemnification Process and Appeal (a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request to the Secretary of the Company, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board in writing that Indemnitee has requested indemnification.
Intellectual Property Matters Each Credit Party and each Subsidiary thereof owns or possesses rights to use all material franchises, licenses, copyrights, copyright applications, patents, patent rights or licenses, patent applications, trademarks, trademark rights, service xxxx, service xxxx rights, trade names, trade name rights, copyrights and other rights with respect to the foregoing which are reasonably necessary to conduct its business. No event has occurred which permits, or after notice or lapse of time or both would permit, the revocation or termination of any such rights, and no Credit Party nor any Subsidiary thereof is liable to any Person for infringement under Applicable Law with respect to any such rights as a result of its business operations.
