Proprietary Rights Indemnification. Without limiting the foregoing, Contractor will without limitation, at its expense defend the City against all claims asserted by any person that anything provided by Contractor infringes a patent, copyright, trade secret or other intellectual property right and must, without limitation, pay the costs, damages and attorneys' fees awarded against the City in any such action, or pay any settlement of such action or claim. Each party agrees to notify the other promptly of any matters to which this provision may apply and to cooperate with each other in connection with such defense or settlement. If a preliminary or final judgment is obtained against the City’s use or operation of the items provided by Contractor hereunder or any part thereof by reason of any alleged infringement, Contractor will, at its expense and without limitation, either: (a) modify the item so that it becomes non-infringing; (b) procure for the City the right to continue to use the item; (c) substitute for the infringing item other item(s) having at least equivalent capability; or (d) refund to the City an amount equal to the price paid, less reasonable usage, from the time of installation acceptance through cessation of use, which amount will be calculated on a useful life not less than five (5) years, plus any additional costs the City may incur to acquire substitute supplies or services.
Proprietary Rights Indemnification. NetIQ hereby represents and warrants ---------------------------------- that the Products and the sale and use of the Products do not infringe upon any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any third party, and that there are no suits or proceedings, pending or threatened alleging any such infringement that have not been disclosed to Tech Data. Regarding any suits or proceedings which have been disclosed to Tech Data, then NetIQ will either (a) not supply Tech Data with any of the Products which are the subject of a disclosed suit or proceeding, or (b) if NetIQ supplies Tech Data with said Products, then NetIQ will be liable to Tech Data for those items in Section 6.5 below in addition to its indemnification obligations stated herein. NetIQ shall indemnify and hold Tech Data, Tech Data's parent, affiliates and subsidiaries and their respective, officers, directors, employees and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs and expenses, which they or any of them incur or become obligated to pay resulting from or arising out of any breach or claimed breach of the foregoing warranty. Tech Data shall inform NetIQ of any such suit or proceeding filed against Tech Data and shall have the right, but not the obligation, to participate in the defense of any such suit or proceeding at Tech Data's expense. NetIQ shall, at its option and expense, either (i) procure for Tech Data, its Customers and End Users the right to continue to use the Product as set forth in this Agreement, or (ii) replace, to the extent Products are available, or modify the Product to make its use non-infringing while being capable of performing the same function without degradation of performance. If neither of the foregoing alternatives (i) or (ii) is reasonably available, NetIQ shall accept a return of the Products from Tech Data, at NetIQ's sole cost and expense, and shall refund to Tech Data the full amount of the price paid by Tech Data for said returned Products, less any price protection credits, but not including any early payment or prepayment discounts. NetIQ shall have no liability under this Section 6.2 for any infringement based on the use of any Product, if the Product is used in a manner or with equipment for which it was not reasonably intended. NetIQ's obligations under this Section 6.2 shall survive termination or expiration of this Agreement.
Proprietary Rights Indemnification. KOFAX shall defend any suit or proceeding brought against Tech Data based on a claim of a third party that the Product(s), or any part thereof, furnished by KOFAX constitutes an infringement of any patent, copyright, trademark of the US or other third party intellectual right, provided that KOFAX is notified promptly in writing and given Authority, information and assistance (at KOFAX's expense) for the defense of such a suit or proceeding, and KOFAX will pay all damages and costs, including attorneys fees in connection therewith. In case the Product(s) furnished by KOFAX, or any part thereof, is enjoined, KOFAX shall, at its expense and option (i) procure for Tech Data the right to continue using the Product(s); (ii) replace the same with non-infringing Product(s); (iii) modify the Product(s) so it becomes non-infringing; or (iv) grant Tech Data credit for such equipment at the purchase price and accept its return. KOFAX shall not be liable to Tech Data hereunder if the patent infringement or claim hereof is based upon the use of the Product in connection with other Products not reasonably intended for use with the Product, or in a manner for which the KOFAX Product(s) was not designed, or where the Product(s) was modified by or for Tech Data in a manner to become infringing. IN NO EVENT SHALL KOFAX BE LIABLE TO TECH DATA UNDER THIS PARAGRAPH FOR CONSEQUENTIAL OR SPECIAL DAMAGES EXCEPT WHERE A THIRD PARTY OBTAINS SUCH DAMAGES AGAINST TECH DATA. EXCEPT AS EXPRESSLY SET FORTH HEREIN, KOFAX SHALL HAVE NO LIABILITY OR OBLIGATION TO TECH DATA WITH RESPECT TO PATENT OR COPYRIGHT INFRINGEMENT MATTERS.
Proprietary Rights Indemnification. Trancell hereby represents and ---------------------------------- warrants that the Products and the sale and use of the Products do not infringe upon any copyright, patent, trade secret or other proprietary or intellectual property right of any third party, and that there are no suits or proceeding, pending or threatened alleging any such infringement. Trancell shall indemnify and hold Tech Data, Tech Data's subsidiaries and their respective, officers, directors, employees and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs and expenses, which they or any of them incur or become obligated to pay resulting from or arising out of any breach or claimed breach of the foregoing warranty. Tech Data shall inform Trancell of any such suit or proceeding filed against Tech Data and shall have the right, but not the obligation, to participate in the defense of any such suit or proceeding at Tech Data's expense. Trancell shall, at its option and expense, either (i) procure for Tech Data, its Customers and End Users the right to continue to use the Product as set forth in this Agreement, or (ii) replace, to the extent Products are available, or modify the Product to make its use non-infringing while being capable of performing the same function without degradation of performance. Trancell shall have no liability under this Section 6.2 for any infringement based on the use of any Product, if the Product is used in a manner or with equipment for which it was not reasonably intended. Trancell's obligations under this Section 6.2 shall survive termination of this Agreement.
Proprietary Rights Indemnification. Service Provider agrees to indemnify, defend, and hold harmless Indemnitees from and against any and all Claims, including reasonable lawyers fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any Claim arising out of or relating to the Services infringing or misappropriating any patent, copyright, trade secret, trademark, or other proprietary right. In the event that Service Provider is enjoined from providing the Services and such injunction is not dissolved within thirty (30) calendar days, or in the event that Subscriber is adjudged, in any final order of a court of competent jurisdiction from which no appeal is taken, to have infringed upon or misappropriated any patent, copyright, trade secret, trademark, or other proprietary right in the access or use of the Services, then Service Provider shall, at its expense: (a) obtain for Subscriber the right to continue using such Services; (b) replace or modify such Services so that they do not infringe upon or misappropriate such proprietary right and is free to be used by Subscriber; or, (c) in the event that Service Provider is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do either of the aforementioned, Service Provider shall reimburse to Subscriber any prepaid Service Fees.
Proprietary Rights Indemnification a. Seller agrees: (i) to defend, hold harmless and indemnify Constellium, its successors, and Constellium’s Customer against claims of actual or alleged direct infringement (including literal infringement and infringement under the Doctrine of Equivalents) of, or contributory infringement of or inducement to infringe, any proprietary right (including any patent, trademark, copyright, moral, industrial design right or other proprietary right or misuse or misappropriation of trade secret) and against any resulting damages or expenses (including attorneys’ and other professionals’ fees, settlements, releases and judgments) to the extent such damages or expenses arise out of or relate in any way to the Products covered by this Purchase Order (including without limitation their manufacture, purchase, use and/or sale) or under any legal theory related to the Products, including such claims where Seller has provided only part of the Products, and Seller expressly waives any claim against Constellium that such infringement arose out of compliance with Constellium's specifications; (ii) to waive any claim against Constellium, including any hold harmless or similar claim, in any way related to a third-party claim asserted against Seller or Constellium for infringement of any proprietary right (including any patent, trademark, copyright, moral, industrial design right or other proprietary right or misuse or misappropriation of trade secret), including claims arising out of specifications furnished by Constellium; (iii) that Constellium, Constellium's subcontractors and Constellium’s Customer have the worldwide, irrevocable right and license to repair, reconstruct, rebuild, and make, and to have repaired, reconstructed, rebuilt, and made, the Products without payment of any royalty or other compensation to Seller or any other party; (iv) that manufactured parts based on Constellium's drawings or specifications may not be used for Seller's own use or sold to third parties without Constellium's express written authorization;
Proprietary Rights Indemnification. If notified promptly in writing of any judicial action brought against GM based on an allegation that GM's use of the Products infringes any patent, copyright, trademark, mask work or any rights of a third party or constitutes misuse or misappropriation of a trade secret (Infringement), CWC will defend such action at its expense and will pay the costs and damages awarded in any such action or the cost of settling such action. CWC shall have sole control of the defense of any such action and all negotiations for its settlement or compromise. If notified promptly in writing of any informal claim (other than a judicial action) brought against GM based on an allegation that GM's use of the Products constitute Infringement, CWC will pay the costs associated with resolving such claim and will pay the settlement amount (if any), provided that CWC shall have sole control of the resolution of any such claim and all negotiations for its settlement. In the event a final injunction shall be obtained against GM's use of the Products by reason of infringement, or in CWC'
(i) procure for GM the right to continue to use the Products as contemplated hereunder, or
(ii) replace or modify the Products to make its use hereunder non-infringing while being capable of performing the same function. If neither option as reasonably available to CWC, then the applicable Purchase Order or relevant part of such Purchase Order may be terminated at the option of either party hereto without further obligation or liability other than as provided in Section 16 hereof, except as follows: (i) Periodic Payment License, CWC shall promptly refund to GM a monthly prorated amount of the prepaid fees for the unexplored portion of the applicable payment period; (
Proprietary Rights Indemnification. 11.1 Seller shall, at its expense, settle and/or defend, and shall indemnity Purchaser against, and shall pay all costs, damages, and attorneys’ fees (other than attorneys’ fees and punitive damages attributable to acts of Purchaser) finally awarded in, any demand, claim, suit, action or proceeding by a third party against Purchaser to the extent based upon a finding that the design or construction of the Product, as furnished, infringes the intellectual property rights of such third party provided that Purchaser promptly notifies Seller in writing of any allegation of such infringement and Seller is given the right at its expense to settle such charge and, through attorneys of its own choice, to defend or control the defense of any suit based upon such charge; and the entire obligation of Seller hereunder to indemnify Purchaser shall not exceed the total amount paid to Seller by Purchaser for all Products purchased under this Agreement.
11.2 In addition, in the event that the use of the Product becomes, or in the opinion of Seller may become the subject of any claim, suit or proceeding or if the manufacture, use or sale of the Product is enjoined, Seller may, at its option and expense, do one or more of the following:
a. obtain for Purchaser the right to use the Product;
b. modify the Product so that it becomes noninfringing or replace the Product with a noninfringing product, while remaining in compliance with Seller’s published specifications in effect at the date of this Agreement; in all material respects; or
c. if Seller cannot reasonably effect (a) or (b) above, cease to deliver the Product to Purchaser and allow Purchaser to return the allegedly infringing Product to Seller, and upon return pay to Purchaser an amount equal to all amounts paid by Purchaser to Seller for the Product less depreciation (based on a five-year life, with straight-line depreciation) up to the time that Purchaser ceases to use the Product as a result of such claim. Seller shall communicate and consult with Purchaser as to the ability of Seller to effect alternatives (a) or (b) above and the resulting impact on any Product or Product availability or Delivery Schedule. In the event Seller concludes that it cannot reasonably effect (a) or (b), then Seller shall work with Purchaser in order to minimize the costs and disruption to Purchaser’s business resulting from such action. Should the System or any non-infringing Product become inoperable due to cessation of delivery under ...
Proprietary Rights Indemnification. Network-1 represents and warrants that (i) at the time of delivery to EDS, no Product provided under this Agreement is the subject of any litigation ("Litigation"), and (ii) Network-1 has all right, title, ownership interest, and/or marketing rights necessary to provide the Products to EDS and that each License, the Products and their sale, license, and use hereunder do not and shall not directly or indirectly violate or infringe upon any copyright, patent, trade secret, or other proprietary or intellectual property right of any third party or contribute to such violation or infringement ("Infringement"). Network-1 shall indemnify and hold EDS and Product end users and their respective successors, officers, directors, employees, and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs, and expenses (including legal fees) resulting from or arising out of any Litigation, any breach or claimed breach of the foregoing warranties, or which is based on a claim of an Infringement and Network-1 shall defend and settle, at its expense, all suits or proceedings arising therefrom. EDS shall inform Network-1 of any such suit or proceeding against EDS and shall have the right to participate in the defense of any such suit or proceeding at its expense and through counsel of its choosing. Network-1 shall notify EDS of any actions, claims, or suits against Network-1 based on an alleged Infringement of any party's intellectual property rights in and to the Products. In the event a permanent injunction is obtained against use of the Products by EDS or customers of EDS, Network-1 shall promptly, at its option and expense, either (A) procure for EDS and Product end users the right to continue to use the infringing Product as set forth in this Agreement, or (B) replace or modify the infringing Products to make its use non-infringing while being capable of performing the same function without degradation of performance. If, after the use of best efforts, neither option (A) or (B) is accomplished by Network-1 within thirty (30) days of the effective date of such permanent injunction, then: (i) the applicable Purchase Order may be immediately terminated by EDS, (ii) Network-1 shall promptly refund to EDS a pro rata amount of any prepaid Charges for maintenance and support Services related thereto, and (iii) Network-1 shall promptly refund to EDS all prepaid fees or Charges, less depreciation based on a five (5) year straight li...
Proprietary Rights Indemnification. Contractor shall warrant that all elements of its solution, including all equipment, software, documentation, services and deliverables, do not and will not infringe upon or violate any patent, copyright, trade secret or other proprietary rights of any third party. In the event of any claim, suit or action by any third party against the State of Delaware, the State of Delaware shall promptly notify the Contractor in writing and Contractor shall defend such claim, suit or action at Contractor’s expense, and Contractor shall indemnify the State of Delaware against any loss, cost, damage, expense or liability arising out of such claim, suit or action (including, without limitation, litigation costs, lost employee time, and counsel fees) whether or not such claim, suit or action is successful. Contractor shall not be responsible for the State’s or a Purchasing Entity’s negligence. If any equipment, software, services (including methods) products or other intellectual property used or furnished by the Contractor (collectively “”Products”) is or in Contractor’s reasonable judgment is likely to be, held to constitute an infringing product, Contractor shall at its expense and option either:
a. Procure the right for the State of Delaware to continue using the Product(s); Replace the product with a non-infringing equivalent that satisfies all the requirements of the Participating Addendum; or
b. Modify the Product(s) to make it or them non-infringing, provided that the modification does not materially alter the functionality or efficacy of the product or cause the Product(s) or any part of the work to fail to conform to the requirements of the Participating Addendum, or only alters the Product(s) to a degree that the State of Delaware agrees to and accepts in writing.
