Common use of PATENT AND COPYRIGHT INDEMNIFICATION Clause in Contracts

PATENT AND COPYRIGHT INDEMNIFICATION. 40.1. Contractor, at its expense, shall defend, indemnify, and save DES and any Purchaser harmless from and against any claims against DES or Purchaser that any Work Product supplied hereunder, or Purchaser’s use of the Work Product within the terms of this Contract or any Work Order, infringes any patent, copyright, utility model, industrial design, mask work, trade secret, trademark, or other similar proprietary right of a third party worldwide. Contractor shall pay all costs of such defense and settlement and any penalties, costs, damages and attorneys’ fees awarded by a court or incurred by DES or Purchaser provided that DES or Purchaser: a) Promptly notifies Contractor in writing of the claim, but DES’ or Purchaser’s failure to provide timely notice shall only relieve Contractor from its indemnification obligations if and to the extent such late notice prejudiced the defense or resulted in increased expense or loss to Contractor; and b) Cooperates with and agrees to use its best efforts to encourage the Office of the Attorney General of Washington to grant Contractor sole control of the defense and all related settlement negotiations. 40.2. If such claim has occurred, or in Contractor’s opinion is likely to occur, Purchaser agrees to permit Contractor, at its option and expense, either to procure for Purchaser the right to continue using the Work Product or to replace or modify the same so that they become noninfringing and functionally equivalent. If use of the Work Product is enjoined by a court and Contractor determines that none of these alternatives is reasonably available, Contractor, at its risk and expense, will take back the Work Product and provide Purchaser a refund equal to the entire amount Purchaser paid to Contractor for Contractor’s provision of the Work Product. 40.3. Contractor has no liability for any claim of infringement arising solely from: a) Contractor compliance with any designs, specifications or instructions of Purchaser; b) Modification of the Work Product by Purchaser or a third party without the prior knowledge and approval of Contractor; or c) Use of the Work Product in a way not specified by Contractor; unless the claim arose against Contractor’s Work Product independently of any of these specified actions.

PATENT AND COPYRIGHT INDEMNIFICATION. 40.1. Contractor, at its expense, shall defend, indemnify, and save DES and any Purchaser harmless from and against any claims against DES or Purchaser that any Work Product supplied hereunder, or Purchaser’s use of the Work Product within the terms of this Contract or any Work Order, infringes any patent, copyright, utility model, industrial design, mask work, trade secret, trademark, or other similar proprietary right of a third party worldwide. Contractor shall pay all costs of such defense and settlement and any penalties, costs, damages and attorneys’ fees awarded by a court or incurred by DES or Purchaser provided that DES or Purchaser: a) Promptly notifies Contractor in writing of the claim, but DES’ or Purchaser’s failure to provide timely notice shall only relieve Contractor from its indemnification obligations if and to the extent such late notice prejudiced the defense or resulted in increased expense or loss to Contractor; and b) Cooperates with and agrees to use its best efforts to encourage the Office of the Attorney General of Washington to grant Contractor sole control of the defense and all related settlement negotiations. 40.2. If such claim has occurred, or in Contractor’s opinion is likely to occur, Purchaser Xxxxxxxxx agrees to permit Contractor, at its option and expense, either to procure for Purchaser the right to continue using the Work Product or to replace or modify the same so that they become noninfringing and functionally equivalent. If use of the Work Product is enjoined by a court and Contractor determines that none of these alternatives is reasonably available, Contractor, at its risk and expense, will take back the Work Product and provide Purchaser a refund equal to the entire amount Purchaser paid to Contractor for Contractor’s provision of the Work Product. 40.3. Contractor has no liability for any claim of infringement arising solely from: a) Contractor compliance with any designs, specifications or instructions of Purchaser; b) Modification of the Work Product by Purchaser or a third party without the prior knowledge and approval of Contractor; or c) Use of the Work Product in a way not specified by Contractor; unless the claim arose against Contractor’s Work Product independently of any of these specified actions.

PATENT AND COPYRIGHT INDEMNIFICATION. 40.1. 10.12.1 Contractor, at its expense, shall defend, indemnify, and save DES and any and/or Purchaser harmless from and against any claims Service or Product infringes, any valid patent, copyright, trade secret or trade xxxx third party actions, suits or proceedings brought against DES and/or Purchaser (each, a “Claim”) to the extent it is based on a claim that the Services or Purchaser that any Work Product supplied hereunderProduct, or Purchaser’s use of the Work Product within used in accordance with the terms of this Contract or any Work OrderContract, infringes any patent, copyright, utility model, industrial design, mask work, trade secret, trademark, or other similar proprietary right trademark of a third party (other than DES Customers) worldwide. Contractor shall pay all costs of such defense and settlement and any penalties, costs, damages and attorneys’ fees awarded by a court or incurred by DES or Purchaser provided that DES or Contractor’s indemnification obligations apply only if Purchaser: a) Promptly notifies Contractor in writing of the claim, but DES’ or Purchaser’s failure to provide timely notice shall only relieve Contractor from its indemnification obligations if and to the extent such late notice prejudiced the defense or resulted in increased expense or loss to Contractor; and b) Cooperates with and agrees to use its best efforts to encourage the Office of the Attorney General of Washington to grant Contractor sole control of the defense and all related settlement negotiations. 40.2. 10.12.2 If such claim has occurred, or in Contractor’s opinion is likely to occur, Purchaser agrees to permit Contractor, at its option and expense, expense either to procure for Purchaser the right to continue using the Work Services or Product or to replace or modify the same so that they become noninfringing non-infringing and functionally equivalent. If use of the Work Services or Product is enjoined by a court and Contractor determines that none of these alternatives is reasonably available, ContractorContractor may terminate the Contract and/or any applicable Order or SOW and refund to Purchaser any prepaid, at its risk and expense, will take back the Work Product and provide Purchaser a refund equal to the entire amount Purchaser unused fees paid to Contractor for Contractor’s provision of the Work affected Services or Product. 40.3. 10.12.3 Contractor has no liability for any claim of infringement arising solely from: a) Contractor DES and/or Purchaser’s Data or DES Applications; b) DES and/or Purchaser’s breach of this Contract; c) Contractor’s compliance with any designs, specifications or instructions of DES and/or Purchaser; bd) Use of the Services or Product in a way not specified by Contractor; e) Modification of the Work Services or Product by DES, Purchaser or a third party without the prior knowledge and written approval of Contractor; f) The combination of the Services or Products with other products, services, equipment, devices, software, systems or data not supplied by Contractor to the extent such Claim is caused by such combination; g) Use by DES and/or Purchaser after notice by Contractor to discontinue use of all or a portion of the Services or Products; h) Any use of any software made available by Contractor, that is the subject of an open source license; or ci) Use Any use by DES and/or Purchaser of the Work Product in a way not specified by Contractor; any third-party services or software unless the claim arose against Contractor’s Work Product Services or Products independently of any of these specified actions. 10.12.4 DES and/or Purchaser will, at DES Purchaser’s expense, defend and/or settle any claim, suit or proceeding brought about by a third-party against the Contractor or Contractor’s officers, directors, employees, agents and Affiliates and arising out of or related to DES and/or Purchaser’s Data, DES and/or Purchaser’s Applications, content, or other material breaches of Section 17.2. In addition, DES and/or Purchaser will pay any judgment awarded against Contractor or any settle amount agreed to by DES and/or Purchaser. 10.12.5 The indemnifying party shall not enter into any settlement that imposes liability or obligations on the indemnified party without obtaining the indemnified party’s prior written consent of the settlement. 10.12.6 The foregoing remedies are the exclusive remedies for any indemnification claim.