Common use of Patent/Copyright Materials/Proprietary Infringement Clause in Contracts

Patent/Copyright Materials/Proprietary Infringement. Unless otherwise expressly provided in this Contract, Contractor shall be solely responsible for clearing the right to use any patented or copyrighted materials in the performance of this Contract. Contractor represents and warrants that any materials (e.g., software, documentation, specifications) or any part thereof, as modified through the Services provided under this Contract will not infringe upon or violate any patent, copyright, trademark, trade secret, or any other proprietary right, of any third party. Contractor agrees that, in accordance with the more specific requirement contained in Paragraph JJ below, it shall indemnify, defend and hold County and County Indemnities harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorneys fees, costs and expenses. In the event any materials or any part thereof, as modified through the Services provided under this Contract, is or becomes the subject of a claim of infringement or misappropriation of a patent, copyright, trademark, trade secret, or any other proprietary right, or is enjoined, Contractor at its own expense will with all reasonable speed and due diligence provide or otherwise secure for County, at Contractor’s expense and election, one of the following: (a) the right to continue use of any such materials or any part thereof to the full extent contemplated by this Contract; (b) an equivalent system having the specifications as provided in this Contract; or (c) modification of the system or its component parts so that they become non-infringing while performing in a substantially similar manner to the original system and meeting the requirements of this Contract. If none of these options are available on commercially reasonable terms, County will stop using the affected Services provided under this Contract and Contractor will refund to County any sums County has paid to Contractor for the affected Services during the current contract year (not to exceed 12 months). County then shall have the option of immediately terminating the Contract, or applicable portions thereof, in accordance with the Termination with Cause provisions described in Paragraph K. The foregoing indemnification obligations of Contractor shall not apply with respect to: (a) the Services that, after delivery or access, are modified or used by any party other than Contractor, in a manner where such modification or use was not recommended, authorized in writing or required by Contractor, and where such modification or use is the basis of the claim; and (b) the Services are combined or bundled with any non-Contractor products, processes or materials that were not recommended, authorized or provided by Contractor, if such liability would not have arisen but for such combination or bundling.

Patent/Copyright Materials/Proprietary Infringement. Unless otherwise expressly provided in this Contract, Contractor shall be solely responsible for clearing the right to use any patented or copyrighted materials or any part thereof in the performance of this Contract. Contractor represents and warrants that any materials (e.g., softwareSoftware, documentation, specifications) or any part thereof, as modified through the Services provided under this Contract Contract, will not infringe upon or violate misappropriate any patent, copyright, trademark, trade secret, or any other proprietary right, of any third party. Contractor agrees that, in accordance with the more specific requirement contained in Paragraph JJ belowArticle HH, Indemnification, it shall indemnify, defend and hold County and County Indemnities Indemnitees harmless from and against any and all such claims claims, suits, or proceedings, alleging that any materials or Services provided hereunder, including the use or operation of such materials or Services, infringes on or misappropriates a patent, copyright, trademark, trade secret, or any other proprietary right, and be responsible for payment of all costs, damages, penalties penalties, and expenses expenses, related to or arising from such claim(s), suit(s), or proceeding(s), including, but not limited to, attorneys attorney’s fees, costs costs, and expenses. In the event any materials or any part thereof, as modified through the Services provided under this Contract, is or becomes the subject of a claim of infringement or misappropriation of a patent, copyright, trademark, trade secret, or any other proprietary right, or is enjoined, Contractor at its own expense will will, with all reasonable speed and due diligence diligence, provide or otherwise secure for County, at Contractor’s expense and election, subject to County approval not to be unreasonably withheld, one of the following: (a) the right to continue use of any such materials or any part thereof to the full extent contemplated by this Contract; (b) an equivalent system having the specifications as provided in this Contract; or (c) modification of the system or its component parts so that they become non-infringing while performing in a substantially similar manner to the original system and meeting the requirements of this Contract. If none of these options are available on commercially reasonable terms, terms and County will must stop using the affected Services provided under Orange County Information Technology Page 12 of 122 Redline_MA-017-18010489 AssetWorks, LLC Folder No.:C003855 Computerized Maintenance Management System this Contract and Contractor will refund to County, the prorated sums County has paid to Contractor for the affected Services based on a five year depreciated value. Alternatively, County may immediately terminate the Contract in accordance with Article K, or applicable portions thereof, without penalty for cause and Contractor will refund to County any sums County has paid to Contractor for the affected Services during the current contract year (not to exceed 12 months). County then shall have the option of immediately terminating the Contract, or applicable portions thereof, in accordance with the Termination with Cause provisions described in Paragraph K. The foregoing indemnification obligations of Contractor shall not apply with respect to: (a) the Services that, after delivery or access, are modified or used by any party other than Contractor, in a manner where such modification or use was not recommended, authorized in writing or required by Contractor, and where such modification or use is the basis of the claim; and (b) the Services are combined or bundled with any non-Contractor products, processes or materials that were not recommended, authorized or provided by Contractor, if such liability would not have arisen but for such combination or bundlingunused Services.

Patent/Copyright Materials/Proprietary Infringement. Unless otherwise expressly provided in this Contract, Contractor shall be solely responsible for clearing the right to use any patented or copyrighted materials in the performance of this Contract. Contractor represents shall indemnify and warrants that hold County harmless from and against any materials (e.g., software, documentation, specifications) or claims brought by third parties to the extent caused by infringement of any part thereof, as modified through the Services provided under this Contract will not infringe upon or violate any U.S. patent, copyright, trademark, trade secret, trademark or any other proprietary right, of any third partyright in connection with the products and/or services furnished under this Agreement. Contractor agrees that, in accordance with the more specific requirement contained in Paragraph JJ below, it shall indemnify, defend and hold County and County Indemnities harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorneys fees, costs and expenses. In the event any materials or any part thereof, as modified through the Services provided under this Contract, is or becomes the subject of a claim of infringement or misappropriation of a patent, copyright, trademark, trade secret, or any other proprietary right, or is enjoined, Contractor at its own expense will with all reasonable speed and due diligence provide or otherwise secure for County, at Contractor’s expense and election, one of the following: (a) have the right to continue use assume the defense of any such materials claim or action (subject to County's right to approve defense counsel, such approval shall not be unreasonably withheld) and all negotiations for its settlement or compromise; provided, however, that; Contractor shall not, without County’s consent (which shall not be unreasonably withheld or delayed), agree to any part thereof settlement which makes any admission on behalf of County or consent to an injunction against County, except to the full extent contemplated by any such injunction relates solely to County’s use of the services. County shall provide reasonable cooperation to Contractor in the defense, settlement or compromise of such claim. The foregoing Section H notwithstanding, Contractor shall not have any liability to County under this Contract; Section H to the extent that any third party infringement claim is based upon: (bi) an equivalent system having County’s use of the specifications as provided product in this Contractcombination with equipment or software not supplied hereunder where the alleged infringement would not exist but for such combination; or (cii) modification County’s use of the system product and/or service in an application or environment for which it was not designed or not contemplated in its component parts so that they become product literature; (iii) County’s use of other than a current non-infringing while performing in a substantially similar manner to release of the original system and meeting the requirements of this Contract. If none of these options are available on commercially reasonable terms, County will stop using the affected Services product and/or service provided under this Contract and Contractor will refund to County any sums County has paid to Contractor for by Contractor; (iv) unauthorized modifications of the affected Services during the current contract year (not to exceed 12 months). County then shall have the option of immediately terminating the Contract, or applicable portions thereof, in accordance with the Termination with Cause provisions described in Paragraph K. The foregoing indemnification obligations of Contractor shall not apply with respect to: (a) the Services that, after delivery or access, are modified or used product and/or service by any party anyone other than Contractor, in a manner where such modification or use was not recommended, authorized in writing or required by Contractor, and where such modification or use is the basis of the claim; and (b) the Services are combined or bundled with any non-Contractor products, processes or materials that were not recommended, authorized or provided by Contractor, if such liability would not have arisen but for such combination or bundling.

Patent/Copyright Materials/Proprietary Infringement. Unless otherwise expressly provided in this Contract, Contractor shall be is solely responsible for clearing the right to use any patented or copyrighted materials in the performance of this Contract. Contractor represents and warrants that any materials (e.g., software, documentation, specifications) or any part thereof, as modified through the Services provided under this Contract will not infringe upon or violate any patent, copyright, trademark, trade secret, or any other proprietary right, of any third party. Contractor agrees that, in accordance with the more specific requirement contained in Paragraph JJ belowZ, it shall indemnify, defend and hold County and County Indemnities Indemnitees harmless from any and all such third party claims of infringement or misappropriation of a patent, copyright, trademark, trade secret or any other proprietary right and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such third party claim(s), including, but not limited to, attorneys fees, costs and expensesexpenses and reasonable attorney’s fees. In the event any materials or any part thereof, as modified through the Services services provided under this Contract, is or becomes the subject of a claim of infringement or misappropriation of a patent, copyright, trademark, trade secret, or any other proprietary right, or is enjoined, Contractor at its own expense will with all reasonable speed and due diligence provide or otherwise secure for County, at Contractor’s expense and election, subject to County approval not to be unreasonably withheld, one of the following: (a) the right to continue use of any such materials or any part thereof to the full extent contemplated by this Contract; (b) an equivalent system having the specifications as provided in this Contract; or (c) modification of the system or its component parts so that they become non-infringing while performing in a substantially similar manner to the original system and meeting the requirements of this Contract. If none of these options are available on commercially reasonable terms, County will stop using the affected Services services provided under this Contract and Contractor will refund to County any sums County has paid to Contractor for the affected Services during the current contract year (not to exceed 12 months)services, less a reasonable offset for use. County then shall have has the option of immediately terminating the Contract, or applicable portions thereof, in accordance with the Termination with Cause provisions described in Paragraph K. The foregoing indemnification obligations of Contractor shall not apply with respect to: (a) the Services that, after delivery or access, are modified or used by any party other than Contractor, in a manner where such modification or use was not recommended, authorized in writing or required by Contractor, and where such modification or use is the basis of the claim; and (b) the Services are combined or bundled with any non-Contractor products, processes or materials that were not recommended, authorized or provided by Contractor, if such liability would not have arisen but for such combination or bundlingwithout penalty.