Common use of Proprietary Rights Indemnification Clause in Contracts

Proprietary Rights Indemnification. (a) Xxxxxxx.xxx represents and warrants that it is the sole owner of the Software, or has procured the Software under valid licenses from the owners thereof, and Xxxxxxx.xxx further represents and warrants that it has full power and authority to grant the rights herein granted without the consent of any other person. Xxxxxxx.xxx shall defend and indemnify and hold GE harmless against any amounts awarded in a settlement or final court decision arising from any claim, suit, or other proceeding brought against GE based on an allegation that the Software or any elements thereof, or the use of any Software furnished by Xxxxxxx.xxx pursuant to this Agreement constitutes a violation or infringement of any worldwide copyright, trade secret, or other proprietary information right, or U.S. patent provided that Xxxxxxx.xxx is notified promptly in writing of such allegation, suit, or proceeding and given full, complete, and exclusive authority, and complete information and assistance (at Xxxxxxx.xxx's expense) for the defense of same. Xxxxxxx.xxx shall pay without limitation all damages and costs incurred by GE with respect to such suits or proceedings, but Xxxxxxx.xxx shall not be responsible for any compromise made by GE or its agents without Xxxxxxx.xxx's consent. If such Software is held by a court of competent jurisdiction to constitute infringement, and its use is enjoined, Xxxxxxx.xxx shall, at its own expense without limitation, either promptly procure the right for continued use of such Software by GE, or, if the performance thereof will not thereby be materially adversely affected promptly replace or modify such product(s) so that it becomes non-infringing. If neither of the actions specified for Xxxxxxx.xxx in the preceding sentence is commercially feasible, then as a last resort, Xxxxxxx.xxx shall accept return of such Software and refund to GE all fees paid by GE for such Software if such return of Software occurs within the five (5) year period beginning on the Effective Date, plus any unused maintenance fees paid for the Software and any costs incurred by GE in the removal of such Software and installation of alternative products. After such five (5) year period beginning with the sixth (6th) year, GE shall be entitled to a pro-rata refund based upon a five (5) year depreciation schedule. During the pendency of any claim against GE with respect to Xxxxxxx.xxx's ownership or authority, GE may withhold payment of any sum otherwise required to be paid hereunder.

Proprietary Rights Indemnification. (a) Xxxxxxx.xxx NetIQ hereby represents and warrants ---------------------------------- that it is the sole owner Products and the sale and use of the Software, or has procured the Software under valid licenses from the owners thereof, and Xxxxxxx.xxx further represents and warrants that it has full power and authority to grant the rights herein granted without the consent of Products do not infringe upon any other person. Xxxxxxx.xxx shall defend and indemnify and hold GE harmless against any amounts awarded in a settlement or final court decision arising from any claim, suit, or other proceeding brought against GE based on an allegation that the Software or any elements thereof, or the use of any Software furnished by Xxxxxxx.xxx pursuant to this Agreement constitutes a violation or infringement of any worldwide copyright, patent, trademark, trade secret, secret or other proprietary information right, or U.S. patent provided that Xxxxxxx.xxx is notified promptly in writing intellectual property right of such allegation, suit, or proceeding and given full, completeany third party, and exclusive authority, and complete information and assistance (at Xxxxxxx.xxx's expense) for the defense of same. Xxxxxxx.xxx shall pay without limitation all damages and costs incurred by GE with respect to such 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 Xxxxxxx.xxx shall not be responsible for the obligation, to participate in the defense of any compromise made by GE such suit or its agents without Xxxxxxx.xxxproceeding at Tech Data's consentexpense. If such Software is held by a court of competent jurisdiction to constitute infringement, and its use is enjoined, Xxxxxxx.xxx NetIQ shall, at its own expense without limitationoption and expense, either promptly (i) procure for Tech Data, its Customers and End Users the right for continued to continue to use of such Software by GEthe Product as set forth in this Agreement, oror (ii) replace, if to the performance thereof will not thereby be materially adversely affected promptly replace extent Products are available, or modify such product(s) so that it becomes the Product to make its use non-infringinginfringing while being capable of performing the same function without degradation of performance. If neither of the actions specified for Xxxxxxx.xxx in the preceding sentence foregoing alternatives (i) or (ii) is commercially feasiblereasonably available, then as a last resort, Xxxxxxx.xxx NetIQ shall accept a return of such Software the Products from Tech Data, at NetIQ's sole cost and expense, and shall refund to GE all fees Tech Data the full amount of the price paid by GE Tech Data for such Software if such return of Software occurs within the five (5) year period beginning 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 Effective Date, plus any unused maintenance fees paid for the Software and any costs incurred by GE in the removal of such Software and installation of alternative products. After such five (5) year period beginning with the sixth (6th) year, GE shall be entitled to a pro-rata refund based upon a five (5) year depreciation schedule. During the pendency use of any claim against GE Product, if the Product is used in a manner or with respect to Xxxxxxx.xxxequipment for which it was not reasonably intended. NetIQ's ownership obligations under this Section 6.2 shall survive termination or authority, GE may withhold payment expiration of any sum otherwise required to be paid hereunderthis Agreement.

Proprietary Rights Indemnification. (a) Xxxxxxx.xxx represents and warrants Brightware will defend at its expense any action brought against Licensee which is based on a claim that it is a Product, as used within the sole owner scope of the Softwarelicense granted hereunder, infringes a United States patent, copyright or trade secret of a third party, and will pay (i) any settlement agreed to by Brightware, or has procured (ii) the Software under valid licenses from the owners thereofcosts and damages finally awarded to such third party; provided, and Xxxxxxx.xxx further represents and warrants however, that it has full power and authority to grant the rights herein granted without the consent of any other person. Xxxxxxx.xxx shall defend and indemnify and hold GE harmless against any amounts awarded in a settlement or final court decision arising from any claim, suit, or other proceeding brought against GE based on an allegation either case that the Software or any elements thereof, or the use of any Software furnished by Xxxxxxx.xxx pursuant to this Agreement constitutes a violation or infringement of any worldwide copyright, trade secret, or other proprietary information right, or U.S. patent provided that Xxxxxxx.xxx is notified Licensee notifies Brightware promptly in writing of the claim, and allows Brightware to fully control the defense and settlement of such allegation, suitclaim. If any Product becomes, or proceeding in Brightware's opinion is likely to become, the subject of a claim of infringement of any United States patent, copyright or trade secret owned by any third party, Brightware may, at its election, either: (i) procure for the Licensee the right to continue using the Product; (ii) replace or modify the Product to make it non-infringing; or (iii) terminate the Product License for the Product. Upon termination of the Product License in accordance with Section 6, Licensee shall immediately return to Brightware all copies and given fullall versions of the Product and all related documentation, completein accordance with the obligations set forth in Section 6(b) of this Agreement and shall provide to Brightware the certificate required under Section 6(b). Brightware shall thereafter refund to Licensee all license fees paid by Licensee for the terminated Product License, less an amount equal to one sixtieth (1/60th) of such license fees for each month or any portion thereof which has elapsed since the commencement of the applicable Product License. Brightware shall have no liability for any claim of infringement by a Product based upon Licensee's: (i) use of any version of the Product other than the latest unmodified release; (ii) use or combination of the Product with non-Brightware programs or data if such infringement would not have occurred without such use or combination; or (iii) use of the Product after receiving notice that the Product infringes a patent, copyright or trade secret of a third party. This Section 3 states the entire liability of Brightware and the sole and exclusive authority, and complete information and assistance (at Xxxxxxx.xxx's expense) for the defense remedies of same. Xxxxxxx.xxx shall pay without limitation all damages and costs incurred by GE Licensee with respect to such suits or proceedings, but Xxxxxxx.xxx shall not be responsible for any compromise made by GE or its agents without Xxxxxxx.xxxProduct's consent. If such Software is held by a court of competent jurisdiction to constitute infringement, and its use is enjoined, Xxxxxxx.xxx shall, at its own expense without limitation, either promptly procure the right for continued use of such Software by GE, or, if the performance thereof will not thereby be materially adversely affected promptly replace or modify such product(s) so that it becomes non-infringing. If neither of the actions specified for Xxxxxxx.xxx in the preceding sentence is commercially feasible, then as a last resort, Xxxxxxx.xxx shall accept return of such Software and refund to GE all fees paid by GE for such Software if such return of Software occurs within the five (5) year period beginning on the Effective Date, plus any unused maintenance fees paid for the Software and any costs incurred by GE in the removal of such Software and installation of alternative products. After such five (5) year period beginning with the sixth (6th) year, GE shall be entitled to a pro-rata refund based upon a five (5) year depreciation schedule. During the pendency infringement of any claim against GE with respect to Xxxxxxx.xxx's ownership patent, copyright or authority, GE may withhold payment trade secret of any sum otherwise required to be paid hereunder.any

Proprietary Rights Indemnification. (a) Xxxxxxx.xxx GMI represents and warrants that it is the sole owner of the SoftwareSoftware and the GMI Deliverables, or has procured the Software and GMI Deliverables under valid licenses from the owners thereof, and Xxxxxxx.xxx GMI further represents and warrants that it has full power and authority to grant the rights herein granted without the consent of any other person. Xxxxxxx.xxx GMI shall defend and defend, indemnify and hold GE harmless from and against any amounts awarded in a settlement or final court decision arising from any claim, suit, or other proceeding brought against GE based on an allegation that the GMI Software or the GMI Deliverables, or any elements thereof, when used in accordance with this Agreement, violates or infringes any patent, copyright, trade mark, or trade secret right arising under the law of [**], or that thx Third Party Software or any elements thereof, when used in accordance with this Agreement, violates or the use of infringes any Software furnished by Xxxxxxx.xxx pursuant to this Agreement constitutes a violation or infringement of any worldwide patent, copyright, trade secretmark, or other proprietary information righttrade secret right arising under the law of [**], or U.S. patent provided provixxx that Xxxxxxx.xxx GMI is notified promptly in writing of such allegation, suit, or proceeding proceeding, is given sole control of the defense thereof and given full, completeall related settlement [**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. negotiations, and exclusive is given full and complete authority, and complete information and assistance (at Xxxxxxx.xxxGMI's expense) for the defense of same. Xxxxxxx.xxx GMI shall pay without limitation all damages and costs finally awarded against GE in, or incurred by GE with respect to in a settlement of, any such suits suit or proceedingsproceeding, but Xxxxxxx.xxx GMI shall not be responsible for any compromise made by GE or its agents without Xxxxxxx.xxxGMI's consent. If such Software or the GMI Deliverables or any element thereof is held by a court of competent jurisdiction to constitute infringementbe infringing, and its use is enjoined, Xxxxxxx.xxx GMI shall, at its own expense without limitation, either promptly procure the right for continued use of such Software software by GE, or, if the performance thereof will not thereby be materially adversely affected affected, promptly replace or modify such product(s) software so that it becomes non-infringing. If neither of the actions specified for Xxxxxxx.xxx GMI in the preceding sentence is commercially feasible, then as a last resort, Xxxxxxx.xxx GMI shall accept return [**]. GMI has no liability under this Section 6 for any claim to the extent it arises out of or is related to (i) any use of the Software other than in accordance with this Agreement and the Documentation [**]; (ii) a modification of the Software by or on behalf of GE where, but for such modification, there would be no infringement and such modification was not reasonably contemplated by the parties; (iii) a combination of the Software with any third party software or hardware if but for such combination there would be no infringement and refund such combination was not reasonably contemplated by the parties; or (iv) the use of a version of Software other than the then current version if infringement would have been avoided with the use of the then current version, [**]. The rights granted to GE all fees paid under this Section 6 shall be GE's sole and exclusive remedy for any alleged infringement of any patent, copyright, trade secret or other proprietary rights. Where the alleged infringement of any such right is asserted by GE for such Software if such return of Software occurs within the five (5) year period beginning on the Effective Date, plus any unused maintenance fees paid for the Software and any costs incurred by GE in the removal of such Software and installation of alternative products. After such five (5) year period beginning with the sixth (6th) year, GE shall be entitled to a pro-rata refund based upon a five (5) year depreciation schedule. During the pendency of any claim against GE with respect to Xxxxxxx.xxx's ownership or authority, GE may withhold payment of any sum otherwise required to be paid hereunderan infringement of a GE right, the parties agree that the indemnity obligation under this Section 6 shall not apply.

Proprietary Rights Indemnification. (a) Xxxxxxx.xxx Supplier represents and warrants that it (i) at the time of delivery to EDS, no Product provided under this Agreement is the sole owner subject of the Software, or has procured the Software under valid licenses from the owners thereofany litigation ("Litigation"), and Xxxxxxx.xxx further represents (ii) Supplier has all right, title, ownership interest, and/or marketing rights necessary to provide the Products to EDS. Supplier shall indemnify and warrants that it has full power hold EDS and authority to grant 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) (collectively, the rights herein granted without the consent "Actions") resulting from or arising out of any a claim that the Products infringe upon any copyright, patent, trade secret or other person. Xxxxxxx.xxx proprietary or intellectual property right of any third party and Supplier shall defend and indemnify settle, at its expense, all suits or proceedings arising therefrom. The foregoing indemnification shall only be provided if EDS shall promptly inform Supplier of any such suit or proceeding against EDS, (iii) Supplier shall control the defense of any such claim or action so long as EDS shall have the right to participate in the defense of any such suit or proceeding at its expense and hold GE harmless against through counsel of its choosing, and (iv) EDS reasonably cooperates in such defense at Supplier's cost. The indemnification set forth in this Section 5.02 shall not apply if the use of the then most recent version of the Licensed Software would have prevented the Action; provided, however, that if EDS is entitled to such version as part of its maintenance and support Services hereunder and Supplier had knowledge of such Action and failed to inform EDS thereof, the provisions of the indemnification set forth in this Section 5.02 shall apply. Supplier shall notify EDS of any amounts awarded in a settlement or final court decision arising from any claimactions, suitclaims, or other proceeding brought suits against GE Supplier based on an allegation that alleged Infringement of any party's intellectual property rights in and to the Software Products. In the event an injunction is sought or any elements thereof, or the obtained against use of any Software furnished by Xxxxxxx.xxx pursuant the Products or in Supplier's opinion is likely to this Agreement constitutes a violation be sought or infringement of any worldwide copyrightobtained, trade secret, or other proprietary information right, or U.S. patent provided that Xxxxxxx.xxx is notified promptly in writing of such allegation, suit, or proceeding and given full, complete, and exclusive authority, and complete information and assistance (at Xxxxxxx.xxx's expense) for the defense of same. Xxxxxxx.xxx shall pay without limitation all damages and costs incurred by GE with respect to such suits or proceedings, but Xxxxxxx.xxx shall not be responsible for any compromise made by GE or its agents without Xxxxxxx.xxx's consent. If such Software is held by a court of competent jurisdiction to constitute infringement, and its use is enjoined, Xxxxxxx.xxx Supplier shall, at its own expense without limitationoption and expense, either promptly (A) procure for EDS and Product end users the right for continued to continue to use of such Software by GEthe infringing Product as set forth in this Agreement, or, if the performance thereof will not thereby be materially adversely affected promptly or (B) replace or modify such product(s) so that it becomes the infringing Products to make its use non-infringing. If neither infringing while being capable of performing the actions specified for Xxxxxxx.xxx in the preceding sentence is commercially feasible, then as a last resort, Xxxxxxx.xxx shall accept return same function without degradation of such Software and refund to GE all fees paid by GE for such Software if such return of Software occurs within the five (5) year period beginning on the Effective Date, plus any unused maintenance fees paid for the Software and any costs incurred by GE in the removal of such Software and installation of alternative products. After such five (5) year period beginning with the sixth (6th) year, GE shall be entitled to a pro-rata refund based upon a five (5) year depreciation schedule. During the pendency of any claim against GE with respect to Xxxxxxx.xxx's ownership or authority, GE may withhold payment of any sum otherwise required to be paid hereunderperformance.