Common use of PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY Clause in Contracts

PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY. a) Contractor will indemnify, defend, and save harmless the State, its officers, agents, and employees, from any and all third party claims, costs (including without limitation reasonable attorneys’ fees), and losses for infringement or violation of any U.S. Intellectual Property Right by any product or service provided hereunder. With respect to claims arising from Software manufactured by a third party and sold by Contractor as a reseller, Contractor will pass through to the State such indemnity rights as it receives from such third party (“Third Party Obligation”) and will cooperate in enforcing them; provided that if the third party manufacturer fails to honor the Third Party Obligation, Contractor will provide the State with indemnity protection equal to that called for by the Third Party Obligation, but in no event greater than that called for in the first sentence of this Section). Unless a Third Party Obligation provides otherwise, the defense and payment obligations set forth in this Section will be conditional upon the following: i. The State will notify the Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and ii. The Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that (a) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its own expense with respect to attorneys’ fees and costs (but not liability); (b) where a settlement would impose liability on the State, affect principles of California government or public law, or impact the authority of the State, the Department of General Services or the Department of Technology, as applicable, will have the right to approve or disapprove any settlement or compromise, which approval will not unreasonably be withheld or delayed; and (c) the State will reasonably cooperate in the defense and in any related settlement negotiations. b) Should the Software Products or Services, or the operation thereof, become, or in the Contractor's opinion are likely to become, the subject of a claim of infringement or violation of a U.S. Intellectual Property Right, the State shall, subject to prior approval, permit the Contractor, at its option and expense, either to procure for the State the right to continue using the Services, or to replace or modify the same so that they become non-infringing. If none of these options can reasonably be taken, or if the use of such Services by the State shall be prevented by injunction, the State shall then have the option of terminating this Contract, or applicable portions thereof, without penalty or termination charge and the Contractor shall refund any sums the State has paid the Contractor less any reasonable amount for use or damage. c) The Contractor shall have no liability to the State under any provision of this clause with respect to any claim of patent, copyright or trade secret infringement which is based upon: i. The combination or utilization of Deliverables furnished hereunder with Goods or Software not made or furnished by the Contractor; or ii. The combination or utilization of Software or Services not made or furnished by the Contractor, and introduced into the States computing environment; or iii. The modification initiated by the State, or a third party at the State’s direction, of any Software or Service furnished hereunder; or iv. The combination or utilization of Software furnished hereunder with non- Contractor supplied Software. d) The Contractor certifies that it has appropriate systems and controls in place to ensure that State funds will not be used in the performance of this Contract for the acquisition, operation or maintenance of Software in violation of any U.S. Intellectual Property laws.

PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY. (a) Contractor will shall indemnify, defend, and save hold harmless the StateState of California, its Board of Trustees of the California State University, CSU, and their respective officers, agents, and employeesemployees (collectively referred to as CSU), from any and all third third-party claims, costs (including without limitation reasonable attorneys’ fees), and losses for infringement or violation of any U.S. Intellectual Property Right Right, domestic or foreign, by any product or service provided hereunder. With respect to claims arising from computer Hardware or Software manufactured by a third party and sold by Contractor as a reseller, Contractor will pass through to CSU, in addition to the State foregoing provision, such indemnity rights as it receives from such third party (“Third Third-Party Obligation”) and will cooperate in enforcing them; provided that if the third third-party manufacturer fails to honor the Third Third-Party Obligation, Contractor will provide the State CSU with indemnity protection equal to that called for by the Third Party Obligation, but in no event greater than that called for in the first sentence of this Section). Unless a Third Party Obligation provides otherwise, the defense and payment obligations set forth in this Section will be conditional upon the following:protection. i. The State (i) CSU will notify the Contractor of any such claim in writing and tender the its defense thereof within a reasonable time; and ii. The Contractor and (ii)Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that (a) , except when substantial principles of government or public law are involved, when litigation might create precedent affecting future State CSU operations or liability, or when involvement of the State CSU is otherwise mandated by law, the State may participate in . In such action at its own expense with respect to attorneys’ fees and costs (but not liability); case no settlement shall be entered into on behalf of CSU without CSU’s written approval. (b) where Contractor may be required to furnish CSU a settlement would impose bond against any and all loss, damage, costs, expenses, claims and liability on the Statefor patent, affect principles of California government or public law, or impact the authority of the State, the Department of General Services or the Department of Technology, as applicable, will have the right to approve or disapprove any settlement or compromise, which approval will not unreasonably be withheld or delayed; copyright and trade secret infringement. (c) the State will reasonably cooperate in the defense and in any related settlement negotiations. b) Should the Software Products Deliverables or ServicesSoftware, or the operation thereof, become, or in the Contractor's Contactor’s opinion are likely to become, the subject of a claim of infringement or violation of a U.S. Intellectual Property Right, the State shallwhether domestic or foreign, subject to prior approval, CSU shall permit the Contractor, Contractor at its option and expense, expense either to procure for the State CSU the right to continue using the Services, Deliverables or Software or to replace or modify the same so that they become non-infringing, provided they comply with Contract and performance requirements and/or expectations. If none of these options neither option can reasonably be taken, practicable or if the use of such Services Deliverables or Software by the State CSU shall be prevented by injunction, Contractor agrees to take back such Deliverables or Software and use its best effort to assist CSU in procuring substitute Deliverables or Software at Contractors cost and expense. If, in the State sole opinion of CSU, the return of such infringing Deliverables or Software makes the retention of other Deliverables or Software acquired from Contractor under this Contract impracticable, CSU shall then have the option of terminating this Contract, or applicable portions thereof, without penalty or termination charge charge. Contractor agrees to take back such Deliverables or Software and the Contractor shall refund any sums the State has CSU paid the Contractor less any reasonable amount for use or damage. c) The Contractor shall have no liability to the State under any provision of this clause with respect to any claim of patent, copyright or trade secret infringement which is based upon: i. The combination or utilization of Deliverables furnished hereunder with Goods or Software not made or furnished by the Contractor; or ii. The combination or utilization of Software or Services not made or furnished by the Contractor, and introduced into the States computing environment; or iii. The modification initiated by the State, or a third party at the State’s direction, of any Software or Service furnished hereunder; or iv. The combination or utilization of Software furnished hereunder with non- Contractor supplied Software. (d) The Contractor certifies that it has appropriate systems and controls in place to ensure that State funds will not be used in the performance of this Contract for the acquisition, operation or maintenance of computer Software in violation of any U.S. Intellectual Property copyright laws.

PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY. a) Contractor will indemnify, defend, and save harmless the State, its officers, agents, and employees, from any and all third party claims, costs (including without limitation reasonable attorneys’ fees), and losses for infringement or violation of any U.S. Intellectual Property Right by any product or service provided hereunder. With respect to claims arising from computer Hardware or Software manufactured by a third party and sold by Contractor as a reseller, Contractor will pass through to the State such indemnity rights as it receives from such third party (“Third Party Obligation”) and will cooperate in enforcing them; provided that if the third party manufacturer fails to honor the Third Party Obligation, Contractor will provide the State with indemnity protection equal to that called for by the Third Party Obligation, but in no event greater than that called for in the first sentence of this SectionSection 39a). The provisions of the preceding sentence apply only to third party computer Hardware or Software sold as a distinct unit and accepted by the State. Unless a Third Party Obligation provides otherwise, the defense and payment obligations set forth in this Section 39a) will be conditional upon the following: i. i) The State will notify the Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and ii. The ) Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that that (ai) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its own expense with respect to attorneys’ fees and costs (but not liability); (b) where a settlement would impose liability on the State, affect principles of California government or public law, or impact the authority of the State, the Department of General Services or the Department of Technology, as applicable, will have the right to approve or disapprove any settlement or compromise, which approval will not unreasonably be withheld or delayed; and (c) the State will reasonably cooperate in the defense and in any related settlement negotiations. b) Should the Software Products or Services, or the operation thereof, become, or in the Contractor's opinion are likely to become, the subject of a claim of infringement or violation of a U.S. Intellectual Property Right, the State shall, subject to prior approval, permit the Contractor, at its option and expense, either to procure for the State the right to continue using the Services, or to replace or modify the same so that they become non-infringing. If none of these options can reasonably be taken, or if the use of such Services by the State shall be prevented by injunction, the State shall then have the option of terminating this Contract, or applicable portions thereof, without penalty or termination charge and the Contractor shall refund any sums the State has paid the Contractor less any reasonable amount for use or damage. c) The Contractor shall have no liability to the State under any provision of this clause with respect to any claim of patent, copyright or trade secret infringement which is based upon: i. The combination or utilization of Deliverables furnished hereunder with Goods or Software not made or furnished by the Contractor; or ii. The combination or utilization of Software or Services not made or furnished by the Contractor, and introduced into the States computing environment; or iii. The modification initiated by the State, or a third party at the State’s direction, of any Software or Service furnished hereunder; or iv. The combination or utilization of Software furnished hereunder with non- Contractor supplied Software. d) The Contractor certifies that it has appropriate systems and controls in place to ensure that State funds will not be used in the performance of this Contract for the acquisition, operation or maintenance of Software in violation of any U.S. Intellectual Property laws.;

PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY. a) Contractor will indemnify, defend, and save harmless the State, its officers, agents, and employees, from any and all third party claims, costs (including without limitation reasonable attorneys’ fees), and losses for infringement or violation of any U.S. Intellectual Property Right by any product or service provided hereunder. With respect to claims arising from Software manufactured by a third party and sold by Contractor as a reseller, Contractor will pass through to the State such indemnity rights as it receives from such third party (“Third Party Obligation”) and will cooperate in enforcing them; provided that if the third party manufacturer fails to honor the Third Party Obligation, Contractor will provide the State with indemnity protection equal to that called for by the Third Party Obligation, but in no event greater than that called for in the first sentence of this SectionSection ). Unless a Third Party Obligation provides otherwise, the defense and payment obligations set forth in this Section will be conditional upon the following: i. : The State will notify the Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and ii. and The Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that that (a) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its own expense with respect to attorneys’ fees and costs (but not liability); (b) where a settlement would impose liability on the State, affect principles of California government or public law, or impact the authority of the State, the Department of General Services or the Department of Technology, as applicable, will have the right to approve or disapprove any settlement or compromise, which approval will not unreasonably be withheld or delayed; and (c) the State will reasonably cooperate in the defense and in any related settlement negotiations. b) . Should the Software Products or Services, or the operation thereof, become, or in the Contractor's opinion are likely to become, the subject of a claim of infringement or violation of a U.S. Intellectual Property Right, the State shall, subject to prior approval, permit the Contractor, at its option and expense, either to procure for the State the right to continue using the Services, or to replace or modify the same so that they become non-infringing. If none of these options can reasonably be taken, or if the use of such Services by the State shall be prevented by injunction, the State shall then have the option of terminating this Contractsuch Contracts, or applicable portions thereof, without penalty or termination charge and the Contractor shall refund any sums the State has paid the Contractor less any reasonable amount for use or damage. c) . The Contractor shall have no liability to the State under any provision of this clause with respect to any claim of patent, copyright or trade secret infringement which is based upon: i. : The combination or utilization of Deliverables furnished hereunder with Goods or Software not made or furnished by the Contractor; or ii. or The combination or utilization of Software or Services not made or furnished by the Contractor, and introduced into the States computing environment; or iii. or The modification initiated by the State, or a third party at the State’s direction, of any Software or Service furnished hereunder; or iv. or The combination or utilization of Software furnished hereunder with non- non-Contractor supplied Software. d) . The Contractor certifies that it has appropriate systems and controls in place to ensure that State funds will not be used in the performance of this Contract for the acquisition, operation or maintenance of Software in violation of any U.S. Intellectual Property laws.

PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY. a) Subject to damage limitations and warranty disclaimers under this Contract , Contractor will indemnify, defend, and save harmless reimburse the State, its officers, agents, and employees, from any and all third party claims, for their respective out-of-pocket costs (including without limitation reasonable attorneys’ fees), and losses fees)incurred to defend any lawsuit brought against the State by an unaffiliated third party for infringement or violation of any U.S. Intellectual Property Right by any product or service Services provided hereunder. With respect to claims arising from Software manufactured by a third party and sold by Contractor as a reseller, Contractor will pass through to the State such indemnity rights as it receives from such third party hereunder (“Third Party ObligationIP Claim”) ), and will cooperate in enforcing them; provided that if indemnify the third party manufacturer fails to honor State, its officers, agents, and employees for the Third Party Obligation, Contractor will provide the State with indemnity protection equal to that called for by the Third Party Obligation, but in no event greater than that called for in the first sentence amount of this Sectionany adverse final judgment or settlement arising out of an IP claim (“Final Awards”). Unless a Third Party Obligation provides otherwise, the defense and The payment obligations set forth in this Section will be conditional upon the following: i. (i) The State will notify the Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and (ii) The State may not consent to the entry of any judgment or enter into any settlement with respect to the claim without prior written notice to Contractor. The Contractor will have sole may assume control of or otherwise participate in the defense of any action on such claim and all negotiations for its settlement or compromise; provided that that (a) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its own expense with respect to attorneys’ fees and costs (but not liability); (b) where a settlement would impose liability on the State, affect principles of California government or public law, or impact the authority of the State, the Department of General Services or the Department of Technology, as applicable, will have the right to approve or disapprove any settlement or compromise, which approval will not unreasonably be withheld or delayed; and (c) the State will reasonably cooperate in the defense and in any related settlement negotiations. b) Should the Software Products or Services, or the operation thereof, become, or in the Contractor's opinion are likely to become, the subject of a claim of infringement or violation of a U.S. Intellectual Property Right, the State shall, subject to prior approval, shall permit the Contractor, at its option and expense, either to (i) procure for the State the right to continue using the ServicesServices alleged to be infringing, or to (ii) replace or modify the same so that they become non-infringing. If none of these options can reasonably be taken, or if the use of such Services by the State shall be prevented by injunction, the State shall then have the option of terminating this Contract, or applicable portions thereof, without penalty or termination charge and the Contractor shall refund any sums the State has paid the Contractor less any reasonable amount for use or damage. c) The Contractor shall have no liability to the State under any provision of this clause with respect to any claim of patent, copyright or trade secret infringement which is based upon: i. The combination or utilization of Deliverables furnished hereunder with Goods or Software not made or furnished by the Contractor; or ii. The combination or utilization of Software or Services not made or furnished by the Contractor, and introduced into the States computing environment; or iii. The modification initiated by the State, or a third party at the State’s direction, of any Software or Service furnished hereunder; or iv. The combination or utilization of Software furnished hereunder with non- Contractor supplied Software. d) The Contractor certifies that it has appropriate systems and controls in place to ensure that State funds will not be used in the performance of this Contract for the acquisition, operation or maintenance of Software in violation of any U.S. Intellectual Property laws.

PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY. a) Contractor will indemnify, defend, and save harmless the State, its officers, agents, and employees, from any and all third party claims, costs (including without limitation reasonable attorneys’ fees), and losses for infringement or violation of any U.S. Intellectual Property Right by any product or service provided hereunder. With respect to claims arising from computer Hardware or Software manufactured by a third party and sold by Contractor as a reseller, Contractor will pass through to the State such indemnity rights as it receives from such third party (“Third Party Obligation”) and will cooperate in enforcing them; provided that if the third party manufacturer fails to honor the Third Party Obligation, Contractor will provide the State with indemnity protection equal to that called for by the Third Party Obligation, but in no event greater than that called for in the first sentence of this SectionSection ). The provisions of the preceding sentence apply only to third party computer Hardware or Software sold as a distinct unit and accepted by the State. Unless a Third Party Obligation provides otherwise, the defense and payment obligations set forth in this Section will be conditional upon the following: i. The State will notify the Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and ii. The Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that that (a) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its own expense with respect to attorneys’ fees and costs (but not liability); (b) where a settlement would impose liability on the State, affect principles of California government or public law, or impact the authority of the State, the Department of General Services or the Department of Technology, as applicable, will have the right to approve or disapprove any settlement or compromise, compromise which approval will not unreasonably be withheld or delayed; and (c) the State will reasonably cooperate in the defense and in any related settlement negotiations. b) Should the Software Products or ServicesDeliverables, or the operation thereof, become, or in the Contractor's ’s opinion are likely to become, the subject of a claim of infringement or violation of a U.S. Intellectual Property Right, the State shall, subject to prior approval, shall permit the Contractor, at its option and expense, either to procure for the State the right to continue using the ServicesDeliverables, or to replace or modify the same so that they become non-infringing. If none of these options can reasonably be taken, or if the use of such Services Deliverables by the State shall be prevented by injunctioninjunction the Contractor agrees to take back such Deliverables and make every reasonable effort to assist the State in procuring substitute Deliverables. If, in the sole opinion of the State, the return of such infringing Deliverables makes the retention of other Deliverables acquired from the Contractor under this Contract impractical, the State shall then have the option of terminating this Contractsuch Contracts, or applicable portions thereof, without penalty or termination charge charge. The Contractor agrees to take back such Deliverables and the Contractor shall refund any sums the State has paid the Contractor less any reasonable amount for use or damage. c) The Contractor shall have no liability to the State under any provision of this clause with respect to any claim of patent, copyright or trade secret infringement which is based upon: i. The combination or utilization of Deliverables furnished hereunder with Goods Equipment, Software or Software devices not made or furnished by the Contractor; Contractor or, ii. The combination or utilization operation of Software or Services not made or the Equipment furnished by the Contractor, and introduced into Contractor under the States computing environmentcontrol of any Operating Software; or iii. The modification initiated by the State, or a third party at the State’s direction, of any Software or Service Deliverable furnished hereunder; , or iv. The combination or utilization of Software furnished hereunder with non- Contractor contractor supplied Software. d) The Contractor certifies that it has appropriate systems and controls in place to ensure that State funds will not be used in the performance of this Contract for the acquisition, operation or maintenance of computer Software in violation of any U.S. Intellectual Property copyright laws.

PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY. a) Contractor will indemnify, defend, and save harmless the State, its officers, agents, and employees, from any and all third third-party claims, costs (including without limitation reasonable attorneys’ fees), and losses for infringement or violation of any U.S. Intellectual Property Right by any product or service provided hereunder. With respect to claims arising from computer Hardware or Software manufactured by a third third-party and sold by Contractor as a reseller, Contractor will pass through to the State such indemnity rights as it receives from such third third-party (“Third Third-Party Obligation”) and will cooperate in enforcing them; provided that if the third third-party manufacturer fails to honor the Third Third-Party Obligation, Contractor will provide the State with indemnity protection equal to that called for by the Third Third-Party Obligation, but in no event greater than that called for in the first sentence of this Section). The provisions of the preceding sentence apply only to third- party computer Hardware or Software sold as a distinct unit and accepted by the State. Unless a Third Third-Party Obligation provides otherwise, the defense and payment obligations set forth in this Section will be conditional upon the following: i. The State will notify the Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and ii. The Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that that (a) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its own expense with respect to attorneys’ fees and costs (but not liability); (b) where a settlement would impose liability on the State, affect principles of California government or public law, or impact the authority of the State, the Department of General Services or the Department of Technology, as applicable, will have the right to approve or disapprove any settlement or compromise, compromise which approval will not unreasonably be withheld or delayed; and (c) the State will reasonably cooperate in the defense and in any related settlement negotiations. b) . Should the Software Products or ServicesDeliverables, or the operation thereof, become, or in the Contractor's ’s opinion are likely to become, the subject of a claim of infringement or violation of a U.S. Intellectual Property Right, the State shall, subject to prior approval, shall permit the Contractor, at its option and expense, either to procure for the State the right to continue using the ServicesDeliverables, or to replace or modify the same so that they become non-infringing. If none of these options can reasonably be taken, or if the use of such Services Deliverables by the State shall be prevented by injunctioninjunction the Contractor agrees to take back such Deliverables and make every reasonable effort to assist the State in procuring substitute Deliverables. If, in the sole opinion of the State, the return of such infringing Deliverables makes the retention of other Deliverables acquired from the Contractor under this Contract impractical, the State shall then have the option of terminating this Contractsuch Contracts, or applicable portions thereof, without penalty or termination charge charge. The Contractor agrees to take back such Deliverables and the Contractor shall refund any sums the State has paid the Contractor less any reasonable amount for use or damage. c) . The Contractor shall have no liability to the State under any provision of this clause with respect to any claim of patent, copyright or trade secret infringement which is based upon: i. The combination or utilization of Deliverables furnished hereunder with Goods Equipment, Software, or Software devices not made or furnished by the Contractor; or, ii. The combination or utilization operation of Software or Services not made or Equipment furnished by the Contractor under the control of any Operating Software other than, or in addition to, the current version of Contractor, and introduced into the States computing environment-supplied Operating Software; or iii. The modification initiated by the State, or a third third-party at the State’s direction, of any Software or Service Deliverable furnished hereunder; or iv. The combination or utilization of Software furnished hereunder with non- Contractor contractor supplied Software. d) . The Contractor certifies that it has appropriate systems and controls in place to ensure that State funds will not be used in the performance of this Contract for the acquisition, operation operation, or maintenance of computer Software in violation of any U.S. Intellectual Property copyright laws.