Common use of Proprietary Rights Indemnification Clause in Contracts

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. NetIQ hereby (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 Products 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 sale 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. (b) Xxxxxxx.xxx has no liability for any claim arising out of or related to (i) a modification of the Software by anyone other than Xxxxxxx.xxx without Xxxxxxx.xxx's prior written consent where such modification was outside of the scope of use of the Products do Software as reasonably contemplated by the Documentation and, but for such modification there would be no infringement; (ii) a combination of the Software with any third party software or hardware not infringe upon specifically recommended by Xxxxxxx.xxx in its Documentation where such combination is the cause of such infringement; or (iii) 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, provided that Xxxxxxx.xxx notified GE that a current version was available to correct known infringing functionality; and i) GE shall have had the option to receive such release at no charge, on an immediate basis, and ii) Xxxxxxx.xxx has promptly notified GE in writing of recommendations to implement such release so as to minimize any copyrightdisruption and costs to GE for ongoing Operational use of the Software; and iii) GE has applied commercially reasonable judgment to endeavor to accept Xxxxxxx.xxx's proposed recommendations. However, if after applying reasonable judgment, GE concludes that the implementation of such release by GE would have involved significant disruption or cost to GE, then Xxxxxxx.xxx shall remain liable under this Section 5.0 absent a mutually agreeable resolution. (c) The rights granted to GE under this Section 5.0 shall be GE's sole and exclusive remedy for any alleged infringement of any patent, trademarkcopyright, 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 rights except where the alleged 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 is asserted by GE to be an infringement of a GE right, but not then the obligation, parties agree that no such limitation as 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 remedy 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 above 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 Agreementapply.

Proprietary Rights Indemnification. NetIQ hereby Chordiant represents and warrants ---------------------------------- that as of the Effective Date: no Product provided under this Agreement is the subject of any litigation ("Litigation"), furthermore, if a Product becomes the subject of Litigation after the Effective Date Chordiant will immediately notify EDS of such Litigation. EDS may terminate any License, and receive a full refund of any amounts paid for such Product after the date legal process regarding such Litigation has been served on Chordiant. Further; Chordiant represents and warrants that to Chordiant's knowledge, (i) Chordiant has all right, title, ownership interest, and/or marketing rights necessary to provide the Products to EDS, and (ii) as of the Effective Date each License, the Products and the sale their sale, license, and use of the Products hereunder do not and shall not directly or indirectly violate or infringe upon any copyright, patent, trademarktrade secret, trade secret or other proprietary or intellectual property right of any third party, and that there are no suits party or proceedings, pending contribute to such violation 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 infringement. (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 Chordiant shall indemnify and hold Tech Data, Tech Data's parent, affiliates EDS and subsidiaries Product end users and their respectiverespective successors, officers, directors, employees employees, and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs costs, and expenses, which they or any of them incur or become obligated to pay expenses (including legal fees) resulting from or arising out of any Litigation, any breach or claimed breach of the foregoing warrantywarranties, or which is based on a claim 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 secrete, or other proprietary or intellectual property right of any third party, or contribute to such violation or infringement ("Infringement"), and Chordiant shall defend and settle, at its expense, all suits or proceedings arising therefrom. Tech Data EDS shall inform NetIQ Chordiant of any such suit or proceeding filed against Tech Data EDS, shall provide all reasonable assistance and cooperation, at Chordiant's expense, and shall have the right, but not the obligation, right to participate in the defense of any such suit or proceeding at Tech Dataits expense and through counsel of its choosing. Chordiant shall notify EDS of any actions, claims or suits against Chordiant based on an alleged Infringement of any party's expenseintellectual property rights in and to the Products. NetIQ shallIn the event an injunction is sought or obtained against use of the Products or in EDS' opinion is likely to be sought or obtained, Chordiant shall promptly, at its option and expense, either (iA) procure for Tech Data, its Customers EDS and End Users Product end users the right to continue to use the infringing Product as set forth in this Agreement, or (iiB) replace, to the extent Products are available, replace or modify the Product infringing Products to make its use non-non- infringing while being capable of performing the same function without degradation of performance. If If, after the use of reasonable best efforts, neither option (A) or (B) is accomplished by Chordiant within thirty (30) days of the effective date of an injunction then Chordiant will refund the unamortized portion of the Charges paid to Chordiant for such Product amortized on a five (5) year straight line basis from the Acceptance Date of such Product, and any prepaid amounts associated with the affected Product. (b) The provisions of the foregoing alternatives indemnity shall not apply with respect to any instances of alleged Infringement based upon or arising out of: (i) alterations to Products where such alleged Infringement would not have occurred but for such alteration (except for those alterations made by Chordiant, third parties retained by Chordiant, or otherwise made prior to EDS' receipt of said Product); (ii) failure of EDS to use updated Products that are provided by Chordiant (at no cost to EDS) and were provided to avoid Infringement; provided such update is reasonably availableidentified in writing as being provided for such purpose; (iii) use of any Products in connection with or in combination with any equipment, NetIQ shall accept a return of the Products from Tech Datadevices or software which have not been supplied or recommended by Chordiant, at NetIQ's sole cost and expense, and shall refund to Tech Data the full amount of the price paid by Tech Data where such alleged Infringement would not have occurred but 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 Productsuch Products in connection with or in combination with such equipment, if the Product is used devices or software; or (iv) use of Products in a manner or with equipment for which it was same were neither designed nor contemplated as reflected in the Documentation. Notwithstanding any other provisions hereof, the forgoing indemnity shall not reasonably intended. NetIQ's apply with respect to any Infringement based upon EDS activities associated with such infringing Product after Chordiant has completed performance of its replace, repair or refund obligations under this Section 6.2 shall survive termination or expiration of this Agreementin (a) above. (c) THE FOREGOING SECTIONS 5.2(a) AND 5.2(b) STATE THE SOLE AND EXCLUSIVE REMEDY OF EDS AND THE ENTIRE LIABILITY AND OBLIGATION OF CHORDIANT WITH RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF A THIRD PARTY BY THE PRODUCTS OR ANY PART THEREOF.

Proprietary Rights Indemnification. NetIQ hereby represents and warrants ---------------------------------- Brightware will defend at its expense any action brought against Licensee which is based on a claim that a Product, as used within the Products and the sale and use scope of the Products do not infringe upon any copyrightlicense granted hereunder, infringes a United States patent, trademark, copyright or trade secret of a third party, and will pay (i) any settlement agreed to by Brightware, or other proprietary (ii) the costs and damages finally awarded to such third party; provided, however, that in either case that Licensee notifies Brightware promptly in writing of the claim, and allows Brightware to fully control the defense and settlement of such claim. If any Product becomes, or intellectual property right 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, 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 shallBrightware may, at its option and expenseelection, either either: (i) procure for Tech Data, its Customers and End Users the Licensee the right to continue to use using the Product as set forth in this Agreement, or Product; (ii) replace, to the extent Products are available, replace or modify the Product to make its use it non-infringing while being capable of performing infringing; or (iii) terminate the same function without degradation of performanceProduct License for the Product. If neither Upon termination of the foregoing alternatives (i) or (ii) is reasonably availableProduct License in accordance with Section 6, NetIQ Licensee shall accept a immediately return to Brightware all copies and all versions of the Products from Tech DataProduct and all related documentation, at NetIQ's sole cost and expense, in 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 Tech Data Licensee all license fees paid by Licensee for the full 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 price paid by Tech Data for said returned Products, less any price protection credits, but not including any early payment or prepayment discountsapplicable Product License. NetIQ Brightware shall have no liability under this Section 6.2 for any claim of infringement by a Product based on the upon Licensee's: (i) use of any Product, if version of the Product is used in 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 manner patent, copyright or trade secret of a third party. This Section 3 states the entire liability of Brightware and the sole and exclusive remedies of Licensee with equipment for which it was not reasonably intended. NetIQrespect to any Product's obligations under this Section 6.2 shall survive termination infringement of any patent, copyright or expiration trade secret of this Agreement.any

Proprietary Rights Indemnification. NetIQ hereby Chordiant represents and warrants ---------------------------------- that as of the Effective Date: no Product provided under this Agreement is the subject of any litigation ("Litigation"), furthermore, if a Product becomes the subject of Litigation after the Effective Date Chordiant will immediately notify EDS of such Litigation. EDS may terminate any License, and receive a full refund of any amounts paid for such Product after the date legal process regarding such Litigation has been served on Chordiant. Further; Chordiant represents and warrants that to Chordiant's knowledge, (i) Chordiant has all right, title, ownership interest, and/or marketing rights necessary to provide the Products to EDS, and (ii) as of the Effective Date each License, the Products and the sale their sale, license, and use of the Products hereunder do not and shall not directly or indirectly violate or infringe upon any copyright, patent, trademarktrade secret, trade secret or other proprietary or intellectual property right of any third party, and that there are no suits party or proceedings, pending contribute to such violation 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 infringement. (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 Chordiant shall indemnify and hold Tech Data, Tech Data's parent, affiliates EDS and subsidiaries Product end users and their respectiverespective successors, officers, directors, employees employees, and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs costs, and expenses, which they or any of them incur or become obligated to pay expenses (including legal fees) resulting from or arising out of any Litigation, any breach or claimed breach of the foregoing warrantywarranties, or which is based on a claim 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 secrete, or other proprietary or intellectual property right of any third party, or contribute to such violation or infringement ("Infringement"), and Chordiant shall defend and settle, at its expense, all suits or proceedings arising therefrom. Tech Data EDS shall inform NetIQ Chordiant of any such suit or proceeding filed against Tech Data EDS, shall provide all reasonable assistance and cooperation, at Chordiant's expense, and shall have the right, but not the obligation, right to participate in the defense of any such suit or proceeding at Tech Dataits expense and through counsel of its choosing. Chordiant shall notify EDS of any actions, claims or suits against Chordiant based on an alleged Infringement of any party's expenseintellectual property rights in and to the Products. NetIQ shallIn the event an injunction is sought or obtained against use of the Products or in EDS' opinion is likely to be sought or obtained, Chordiant shall promptly, at its option and expense, either (iA) procure for Tech Data, its Customers EDS and End Users Product end users the right to continue to use the infringing Product as set forth in this Agreement, or (iiB) replace, to the extent Products are available, replace or modify the Product infringing Products to make its use non-non- infringing while being capable of performing the same function without degradation of performance. If If, after the use of reasonable best efforts, neither option (A) or (B) is accomplished by Chordiant within thirty (30) days of the effective date of an injunction then Chordiant will refund the unamortized portion of the Charges paid to Chordiant for such Product amortized on a five (5) year straight line basis from the [*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. Acceptance Date of such Product, and any prepaid amounts associated with the affected Product. (b) The provisions of the foregoing alternatives indemnity shall not apply with respect to any instances of alleged Infringement based upon or arising out of: (i) alterations to Products where such alleged Infringement would not have occurred but for such alteration (except for those alterations made by Chordiant, third parties retained by Chordiant, or otherwise made prior to EDS' receipt of said Product); (ii) failure of EDS to use updated Products that are provided by Chordiant (at no cost to EDS) and were provided to avoid Infringement; provided such update is reasonably availableidentified in writing as being provided for such purpose; (iii) use of any Products in connection with or in combination with any equipment, NetIQ shall accept a return of the Products from Tech Datadevices or software which have not been supplied or recommended by Chordiant, at NetIQ's sole cost and expense, and shall refund to Tech Data the full amount of the price paid by Tech Data where such alleged Infringement would not have occurred but 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 Productsuch Products in connection with or in combination with such equipment, if the Product is used devices or software; or (iv) use of Products in a manner or with equipment for which it was same were neither designed nor contemplated as reflected in the Documentation. Notwithstanding any other provisions hereof, the forgoing indemnity shall not reasonably intended. NetIQ's apply with respect to any Infringement based upon EDS activities associated with such infringing Product after Chordiant has completed performance of its replace, repair or refund obligations under this Section 6.2 shall survive termination or expiration of this Agreementin (a) above. (c) THE FOREGOING SECTIONS 5.2(a) AND 5.2(b) STATE THE SOLE AND EXCLUSIVE REMEDY OF EDS AND THE ENTIRE LIABILITY AND OBLIGATION OF CHORDIANT WITH RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF A THIRD PARTY BY THE PRODUCTS OR ANY PART THEREOF.

Proprietary Rights Indemnification. NetIQ hereby GMI represents and warrants ---------------------------------- that it is the sole owner of the Software and the GMI Deliverables, or has procured the Software and GMI Deliverables under valid licenses from the owners thereof, and 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. GMI shall defend, indemnify and hold GE harmless from and against any claim, suit, or other proceeding brought against GE based on an allegation that the Products 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 infringes any patent, copyright, trade mark, or trade secret right arising under the law of [**], provixxx that GMI is notified promptly in writing of such allegation, suit, or proceeding, is given sole control of the defense thereof and all 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 is given full and complete authority, information and assistance (at GMI's expense) for the sale defense of same. GMI shall pay without limitation all damages and costs finally awarded against GE in, or incurred by GE in a settlement of, any such suit or proceeding, but GMI shall not be responsible for any compromise made by GE or its agents without GMI's consent. If such Software or the GMI Deliverables or any element thereof is held by a court of competent jurisdiction to be infringing, and its use is enjoined, GMI 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 software so that it becomes non-infringing. If neither of the actions specified for GMI in the preceding sentence is commercially feasible, then as a last resort, GMI shall [**]. 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 Products do 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 infringe upon reasonably contemplated by the parties; (iii) a combination of the Software with any copyrightthird party software or hardware if but for such combination there would be no infringement and 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 under this Section 6 shall be GE's sole and exclusive remedy for any alleged infringement of any patent, trademarkcopyright, 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 rights. Where the alleged 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 is asserted by GE to be an infringement of a GE right, but not the obligation, to participate in parties agree that 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 indemnity obligation 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 6 shall not reasonably intended. NetIQ's obligations under this Section 6.2 shall survive termination or expiration of this Agreementapply.

Proprietary Rights Indemnification. NetIQ hereby represents In the event of a claim or lawsuit brought by a third party based upon the Software use and\or the Product use, alone or in conjunction with or as part of the Sequenom System, in accordance with the Specifications of Exhibit D, infringes a trade secret, patent or copyright or other proprietary right of a third party, then BCI, Inc. shall, at BCI's sole discretion and warrants ---------------------------------- option, do one of the following: a) Procure for Sequenom the right to continue using the Software or Product; or b) Modify the Software or Product to render it non-infringing; or, c) Provide substitute, non-infringing software or product which performs substantially all of the functions and has substantially all of the features of the Software or Product; provided that, Sequenom may, after a thirty (30) day trial of the substitute software, reject the substitute software, terminate this Agreement and obtain a prorated refund in accordance with Subparagraph (d) hereof; or, d) Terminate this Agreement and, if the term of the license was less than /***/ refund to Sequenom a prorate amount of the purchase price of the software or product paid by Sequenom based on a /***/ useful life with the /***/ commencing on the date on which software or product was received by Sequenom. The prorata amount that will be refunded to Sequenom shall be determined by multiplying the purchase price by Sequenom by a fraction, the numerator of the fractions shall be 1825 minus the number of days that Sequenom had the use of the Software or Product and the denominator of which shall be 1825; or e) Defend the lawsuit and indemnify Sequenom for any damages which may be awarded; provided that Sequenom provides prompt notice of the claim or lawsuit to BCI, (ii) Sequenom turns over to BCI the complete control of the defense of the lawsuit and any settlement or compromise thereof, (iii) Sequenom cooperates fully with BCI and provides BCI with such reasonable assistance, as BCI may request (at Xxxxxxx Xxxxxxx, Inc.'s sole cost) in the defense of such lawsuit, and (iv) Sequenom makes no admission or statements relative to the Software or Product and the third party intellectual property without the express written permission of BCI. /***/ Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. EXCEPT AS PROVIDED IN PARAGRAPH 13, THE PRODUCTS ARE PROVIDED WITHOUT WARRANTY OF ANY KIND OR NATURE. BCI DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE PRODUCTS IS ASSUMED BY SEQUENOM AND SEQUENOM'S CUSTOMERS. THE LIMITED WARRANTY CONTAINED IN PARAGRAPH 13 IS BCI'S SOLE WARRANTY WITH RESPECT TO THE PRODUCTS, SOFTWARE AND DOCUMENTATION AND ARE MADE IN LIEU OF AND EXCLUDE ANY OTHER WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED OR CREATED BY THE UCC OR THE USEAGE IN THE INDUSTRY OR THE COURSE OF DEALINGS OF THE PARTIES, AS TO ANY MATTER WHATSOEVER, INCLUDING BUT NOT LIMITED TO THOSE CONCERNING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 16 LIMITATION OF REMEDIES AND LIABILITIES EXCEPT AS SET FORTH IN PARAGRAPH 13, BCI SHALL NOT BE LIABLE, TO ANY EXTENT WHATSOEVER, FOR ANY DAMAGES RESULTING FROM OR ARISING OUT OF THE USE OR PERFORMANCE OF THE PRODUCTS OR THE SOFTWARE PROVIDED FOR IN THIS AGREEMENT, REGARDLESS OF FORESEEABILITY OR THE FORM OF ACTION, WHETHER IN AGREEMENT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM LOSS OF DATA, LOSS OF ANTICIPATED PROFITS, OR ANY SPECIAL, INDIRECT, DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. 17 FORCE MAJEURE In the event of war, fire, flood, earthquake, strike, labor trouble, breakage of equipment, accident, dot, action of governmental authority and laws, rules, ordinances and regulations, act of God, or contingencies beyond the reasonable control of Sequenom or BCI, interfering with the production, supply or transportation of such party at the time respecting the Products and Software covered by this agreement, or in the event of Inability to obtain on usual and customary prices and terms any goods and components used in connection therewith, quantities so affected shall be eliminated from the agreement without liability, but the agreement shall otherwise remain unaffected. BCI may, during any period of shortage of such goods and components due to force majeure as defined herein, allocate its supply of such goods and components among the various users and Sequenom therefore in any manner which it deems appropriate; provided that BCI shall have no obligation to obtain goods and components from a third party under conditions BCI deems unreasonable in order to supply BCI's excused shortfall; and provided further that any goods and components obtained by BCI from a third party solely for BCI's internal use are not subject to allocation. Sequenom understands and recognizes that the Products and the sale and use of the Products do not infringe upon any copyrightSoftware, patentin whole or in part, 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 may be 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 availableExport Administration Regulations of The United States Department of Commerce and other United States government regulations relating to the export of technical data. All commodities, or modify technology and software exported from the Product United States shall be exported in accordance with Export Administration Regulations. Diversion contrary to make its use non-infringing while being capable of performing the same function without degradation of performanceU.S. law is prohibited. If neither of the foregoing alternatives (i) or (ii) is reasonably availableSequenom agrees to comply with all such regulations, 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 Agreementfuture modifications thereof.

Proprietary Rights Indemnification. NetIQ hereby represents In the event of a claim or lawsuit brought by a third party based upon the Software use and\or the Product use, alone or in conjunction with or as part of the Sequenom System, in accordance with the Specifications of Exhibit D, infringes a trade secret, patent or copyright or other proprietary right of a third party, then BCI, Inc. shall, at BCI's sole discretion and warrants ---------------------------------- option, do one of the following: a) Procure for Sequenom the right to continue using the Software or Product; or b) Modify the Software or Product to render it non-infringing; or, c) Provide substitute, non-infringing software or product which performs substantially all of the functions and has substantially all of the features of the Software or Product; provided that, Sequenom may, after a thirty (30) day trial of the substitute software, reject the substitute software, terminate this Agreement and obtain a prorated refund in accordance with Subparagraph (d) hereof; or, d) Terminate this Agreement and, if the term of the license was less than five (5) years, refund to Sequenom a prorate amount of the purchase price of the software or product paid by Sequenom based on a five (5) year useful life with the five (5) years commencing on the date on which software or product was received by Sequenom. The prorata amount that will be refunded to Sequenom shall be determined by multiplying the Products and purchase price by Sequenom by a fraction, the sale and numerator of the fractions shall be 1825 minus the number of days that Sequenom had the use of the Products do not infringe upon Software or Product and the denominator of which shall be 1825; or e) Defend the lawsuit and indemnify Sequenom for any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any third party, and damages which may be awarded; provided 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 Sequenom provides prompt notice of the Products which are claim or lawsuit to BCI, (ii) Sequenom turns over to BCI 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 complete control of the foregoing warranty. Tech Data shall inform NetIQ defense of the lawsuit and any settlement or compromise thereof, (iii) Sequenom cooperates fully with BCI and provides BCI with such suit or proceeding filed against Tech Data and shall have the rightreasonable assistance, but not the obligationas BCI may request (at Xxxxxxx Xxxxxxx, to participate Inc.'s sole cost) in the defense of any such suit lawsuit, and (iv) Sequenom makes no admission 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, statements relative to the extent Products are available, Software or modify Product and the Product to make its use non-infringing while being capable third party intellectual property without the express written permission 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 AgreementBCI.

Proprietary Rights Indemnification. NetIQ hereby Supplier represents and warrants ---------------------------------- that (i) at the Products and the sale and use time of the Products do not infringe upon any copyrightdelivery to EDS, 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 Product provided under this Agreement is the subject of a disclosed suit or proceedingany litigation ("Litigation"), or and (bii) if NetIQ supplies Tech Data with said ProductsSupplier has all right, then NetIQ will be liable title, ownership interest, and/or marketing rights necessary to Tech Data for those items in Section 6.5 below in addition provide the Products to its indemnification obligations stated hereinEDS. NetIQ Supplier shall indemnify and hold Tech Data, Tech Data's parent, affiliates EDS and subsidiaries Product end users and their respectiverespective successors, officers, directors, employees employees, and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs costs, and expensesexpenses (including legal fees) (collectively, which they or any of them incur or become obligated to pay the "Actions") resulting from or arising out of any breach a claim that the Products infringe upon any copyright, patent, trade secret or claimed breach other proprietary or intellectual property right of the any third party and Supplier shall defend and settle, at its expense, all suits or proceedings arising therefrom. The foregoing warranty. Tech Data indemnification shall only be provided if EDS shall promptly inform NetIQ Supplier of any such suit or proceeding filed against Tech Data and EDS, (iii) Supplier shall control the defense of any such claim or action so long as EDS shall have the right, but not the obligation, right to participate in the defense of any such suit or proceeding at Tech Dataits expense and through counsel of its choosing, and (iv) EDS reasonably cooperates in such defense at Supplier's expensecost. NetIQ 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 actions, claims, or suits against Supplier based on an alleged Infringement of any party's intellectual property rights in and to the Products. In the event an injunction is sought or obtained against use of the Products or in Supplier's opinion is likely to be sought or obtained, Supplier shall, at its option and expense, either (iA) procure for Tech Data, its Customers EDS and End Users Product end users the right to continue to use the infringing Product as set forth in this Agreement, or (iiB) replace, to the extent Products are available, replace or modify the Product infringing Products 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. NetIQ hereby represents and warrants ---------------------------------- 10.1 Macola Software, at its own expense, shall defend any third party action brought against Customer, to the extent that it is based on a claim that a Program used within the Products and the sale and use scope of the Products do not infringe upon any copyrightlicense granted hereunder infringes on a valid and enforceable copyright registered in the United States, patent, trademark, or a trade secret or other proprietary or intellectual property right of any third partysecret, and that there are no suits shall hold Customer harmless from any liability for any damages finally awarded by a court as a result of such a claim, or proceedingsresulting from the settlement thereof, 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 provided Customer notifies Macola Software promptly in writing of the Products which are action (and all prior claims relating to such action) and Macola Software has sole control of the defense and all negotiations for settlement or compromise of the claim. 10.2 In the event that any Program module becomes, or Macola Software is advised by legal counsel that it is likely to become, the subject of a disclosed suit an infringement claim, Macola Software may at its option either secure Customer's right to continue using such program, replace or proceedingmodify it to make it noninfringing (in ways not materially adversely affecting the utility of the program), 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 none of the foregoing warranty. Tech Data shall inform NetIQ alternatives is reasonably available or commercially feasible to Macola Software, discontinue the Program upon one month's notice and terminate Customer’s license and grant Customer a prorata refund of any such suit or proceeding filed against Tech Data and the license fee paid for the discontinued Program, calculated on the basis of straight-line depreciation over a three-year useful life. 10.3 Macola Software shall have no liability for any claim of infringement based on (1) use of other than the rightcurrent supported release of the Program, but unaltered by anyone except Macola Software, if such infringement would have been avoided by the use of such current supported unaltered release and Macola Software has provided or offers to provide such release to Customer or (2) use or combination of the Program with programs or data not supplied or approved by Macola Software to the obligation, to participate in extent such use or combination caused the defense of any such suit or proceeding at Tech Data's expenseinfringement. 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 The remedies set forth in this Agreement, or (ii) replace, Section 10 constitute the sole remedies of Customer and Macola Software's exclusive liability with respect to the extent Products are available, or modify the Product to make its use non-infringing while being capable claims for infringement of performing the same function without degradation proprietary rights 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 Agreementthird parties.

Proprietary Rights Indemnification. NetIQ hereby represents and warrants ---------------------------------- 10.1 Exact, at its own expense, shall defend any third party action brought against Customer, to the extent that it is based on a claim that a Program used within the Products and the sale and use scope of the Products do not infringe upon any copyrightlicense granted hereunder infringes on a valid and enforceable copyright registered in the United States, patent, trademark, or a trade secret or other proprietary or intellectual property right of any third partysecret, and that there are no suits shall hold Customer harmless from any liability for any damages finally awarded by a court as a result of such a claim, or proceedingsresulting from the settlement thereof, 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 provided Customer notifies Exact promptly in writing of the Products which are action (and all prior claims relating to such action) and Exact has sole control of the defense and all negotiations for settlement or compromise of the claim. 10.2 In the event that any Program module becomes, or Exact is advised by legal counsel that it is likely to become, the subject of a disclosed suit an infringement claim, Exact may at its option either secure Customer's right to continue using such program, replace or proceedingmodify it to make it noninfringing (in ways not materially adversely affecting the utility of the program), 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 none of the foregoing warranty. Tech Data shall inform NetIQ alternatives is reasonably available or commercially feasible to Exact, discontinue the Program upon one month's notice and terminate Customer’s license and grant Customer a prorata refund of any such suit or proceeding filed against Tech Data and the license fee paid for the discontinued Program, calculated on the basis of straight-line depreciation over a three-year useful life. 10.3 Exact shall have no liability for any claim of infringement based on (1) use of other than the rightcurrent supported release of the Program, but unaltered by anyone except Exact, if such infringement would have been avoided by the use of such current supported unaltered release and Exact has provided or offers to provide such release to Customer or (2) use or combination of the Program with programs or data not supplied or approved by Exact to the obligation, to participate in extent such use or combination caused the defense of any such suit or proceeding at Tech Data's expenseinfringement. 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 The remedies set forth in this Agreement, or (ii) replace, Section 10 constitute the sole remedies of Customer and Exact's exclusive liability with respect to the extent Products are available, or modify the Product to make its use non-infringing while being capable claims for infringement of performing the same function without degradation proprietary rights 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 Agreementthird parties.