Common use of Proprietary Rights Indemnification Clause in Contracts

Proprietary Rights Indemnification. (a) CBT shall indemnify CL and hold it harmless from any and all damages, liabilities, costs and expenses (including but not limited to reasonable attorneys' fees) incurred by CL as a result of any claim (or a claim by an end user that is related to a claim) that the Courseware or the Trademarks or any part thereof infringes any patent, copyright, trademark or trade secret of any third party, provided that CL promptly notifies CBT in writing of any such claim and CBT shall control and defend or settle any such claim at CBT's expense and with CBT's choice of counsel. CL shall cooperate with CBT, at CBT's expense, in defending or settling such claim and CL may join in defense with counsel of its choice at its own expense. CL may not settle any claim without CBT's prior written consent. Following notice of any claim with respect to which CL believes itself entitled to indemnification under this section, CBT shall have the right at its option and expense to (i) procure for CL and the End-Users the right or license to use the Courseware as delivered; (ii) modify the infringing materials so as to render them non-infringing; (iii) replace the Courseware or parts thereof with other functionally equivalent software; or (iv) if (i), (ii) and (iii), and each of them, are not commercially feasible, terminate this Agreement and refund to CL amounts paid for unsold inventory, which inventory CL shall promptly return to CBT. (b) CBT shall have no liability for any infringement based on (i) the use of the Courseware other than as set forth in the Documentation; (ii) the modification of the Courseware by any party other than CBT if such infringement would have been avoided by the use of the unmodified Courseware; or (iii) the combination or use of the Courseware with other software, items or processes not furnished by CBT if such infringement would have been avoided by the use of the Courseware alone. If the Courseware being distributed infringes an intellectual property right of a third party, CL shall have up to 90 days (after a new release of the Courseware that does not infringe has been provided to CL) to begin distribution of such new release. CBT shall have no liability or obligation to indemnify pursuant to this Section for any infringement violation due to use of Courseware by an end user that was not provided with a new release within such ninety (90) day period. THIS SECTION 4.2

Proprietary Rights Indemnification. (a) CBT KOFAX shall indemnify CL and hold it harmless from defend any and all damages, liabilities, costs and expenses (including but not limited to reasonable attorneys' fees) incurred by CL as a result of any claim (suit or proceeding brought against Tech Data based on a claim by an end user that is related to of a claim) third party that the Courseware or the Trademarks Product(s), or any part thereof infringes thereof, furnished by KOFAX constitutes an infringement of any patent, copyright, trademark of the US or trade secret of any other third partyparty intellectual right, provided that CL KOFAX is notified promptly notifies CBT 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 such claim and CBT shall control and defend or settle any such claim part thereof, is enjoined, KOFAX shall, at CBT's its expense and with CBT's choice of counsel. CL shall cooperate with CBT, at CBT's expense, in defending or settling such claim and CL may join in defense with counsel of its choice at its own expense. CL may not settle any claim without CBT's prior written consent. Following notice of any claim with respect to which CL believes itself entitled to indemnification under this section, CBT shall have the right at its option and expense to (i) procure for CL and the End-Users Tech Data the right or license to use continue using the Courseware as deliveredProduct(s); (ii) modify replace the infringing materials so as to render them same with non-infringinginfringing Product(s); (iii) replace modify the Courseware or parts thereof with other functionally equivalent softwareProduct(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 (i), (ii) and (iii), and each of them, are not commercially feasible, terminate this Agreement and refund to CL amounts paid for unsold inventory, which inventory CL shall promptly return to CBT. (b) CBT shall have no liability for any the patent infringement or claim hereof is based on (i) upon the use of the Courseware other than as set forth Product in the Documentation; (ii) the modification of the Courseware by any party other than CBT if such infringement would have been avoided by the use of the unmodified Courseware; or (iii) the combination or use of the Courseware connection with other softwareProducts not reasonably intended for use with the Product, items or processes not furnished by CBT if such infringement would have been avoided by in a manner for which the use of the Courseware alone. If the Courseware being distributed infringes an intellectual property right of a third party, CL shall have up to 90 days (after a new release of the Courseware that does not infringe has been provided to CLKOFAX Product(s) to begin distribution of such new release. CBT shall have no liability or obligation to indemnify pursuant to this Section for any infringement violation due to use of Courseware by an end user that was not provided with designed, or where the Product(s) was modified by or for Tech Data in a new release within such ninety (90) day periodmanner to become infringing. IN NO EVENT SHALL KOFAX BE LIABLE TO TECH DATA UNDER THIS SECTION 4.2PARAGRAPH 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. (aA) CBT shall indemnify CL Subject to CMN's compliance with Section 4.3(b), Netopia hereby represents and hold it harmless from any and all damages, liabilities, costs and expenses (including but not limited to reasonable attorneys' fees) incurred by CL as a result of any claim (or a claim by an end user that is related to a claim) warrants that the Courseware or the Trademarks or SDSL Router and its sale and use hereunder do not infringe upon any part thereof infringes any patent, copyright, trademark copyright or trade secret of any third party. Netopia shall defend, indemnify and hold CMN and its directors, officers, employees and agents harmless from and against any suit, claim, action, demand, liability, loss, cost or expense (including reasonable legal expenses and attorney's fees) finally awarded by a court or tribunal of competent jurisdiction resulting from or arising directly or indirectly out of any breach of the foregoing warranties; provided that CL Netopia is promptly notifies CBT in writing informed and furnished a copy of any such claim each communication, notice or other action relating to the alleged breach and CBT shall control is given authority, information and assistance necessary to defend or settle said suit or proceeding. (B) CMN hereby represents and warrants that the CopperRocket 201 and its sale and use hereunder do not infringe upon any such claim at CBT's expense and with CBT's choice of counsel. CL shall cooperate with CBT, at CBT's expense, in defending copyright or settling such claim and CL may join in defense with counsel of its choice at its own expense. CL may not settle any claim without CBT's prior written consent. Following notice trade secret of any claim third party. CMN further represents and warrants that CMN has all rights necessary to provide the Intellectual Property made available to Netopia in connection with respect the development of the SDSL Router. CMN shall defend, indemnify and hold Netopia and its directors, officers, employees and agents harmless from and against any suit, claim, action, demand, liability, loss, cost or expense (including legal expenses and reasonable attorney's fees) finally awarded by a court or tribunal of competent jurisdiction resulting from or arising directly or indirectly out of any breach of the foregoing warranties; provided that CMN is promptly informed and furnished a copy of each communication, notice or other action relating to which CL believes itself entitled the alleged breach and is given authority, information and assistance necessary to indemnification under this section, CBT defend or settle said suit or proceeding. (C) Netopia shall have the right right, at its sole option and expense at its expense, to either (i) procure for CL and the End-Users CMN the right or license to continue to use the Courseware infringing SDSL Router as delivered; set forth in this Agreement, or (ii) replace or modify the infringing materials so as SDSL Router to render them make its use non-infringing; (iii) replace infringing while being capable of performing the Courseware or parts thereof with other functionally equivalent software; or (iv) if (i), (ii) and (iii), and each same function without degradation of them, are not commercially feasible, terminate this Agreement and refund to CL amounts paid for unsold inventory, which inventory CL shall promptly return to CBT. (b) CBT performance. Netopia shall have no liability under this Section 4.3 for any infringement based on (i) the use of the Courseware SDSL Router with any other than products not provided by Netopia; if the SDSL Router is not used in a manner for which it was not designed; if the SDSL Router is used in an infringing process; or if the claimed infringement arises out of information or materials delivered by CMN to Netopia in connection with development of the SDSL Router, or from a modification of the SDSL Router after delivery by Netopia. Netopia's obligations hereunder shall not apply to any infringement occurring after Netopia has received notice alleging the infringement unless Netopia has given CMN written permission for such continuing infringement. (D) CMN shall have the right, at its sole option and at its expense, to either (i) procure for Netopia the right to continue to use the infringing CopperRocket 201 as set forth in the Documentation; this Agreement, or (ii) replace or modify the modification infringing CopperRocket 201 to make its use non-infringing while being capable of performing the Courseware by any party other than CBT if such infringement would have been avoided by the use same function without degradation of the unmodified Courseware; or (iii) the combination or use of the Courseware with other software, items or processes not furnished by CBT if such infringement would have been avoided by the use of the Courseware aloneperformance. If the Courseware being distributed infringes an intellectual property right of a third party, CL shall have up to 90 days (after a new release of the Courseware that does not infringe has been provided to CL) to begin distribution of such new release. CBT Netopia shall have no liability or obligation to indemnify pursuant to under this Section for any infringement violation due to based on the use of Courseware by an end user that was not provided the CopperRocket 201 with a new release within such ninety (90) day period. THIS SECTION 4.2any other products not

Proprietary Rights Indemnification. (a) CBT 10.1 ECi, at its own expense, shall indemnify CL defend any third party action brought against Customer, to the extent that it is based on a claim that a Program used within the scope of the license granted hereunder infringes on a valid and enforceable copyright registered in the United States or Canada, or a trade secret under governing law, and shall hold it Customer harmless from any and all damages, liabilities, costs and expenses (including but not limited to reasonable attorneys' fees) incurred liability for any damages finally awarded by CL a court as a result of any claim (or a claim by an end user that is related to such a claim) that , or resulting from the Courseware or the Trademarks or any part thereof infringes any patent, copyright, trademark or trade secret of any third partysettlement thereof, provided that CL Customer notifies ECi promptly notifies CBT in writing of the action (and all prior claims relating to such action) and ECi has sole control of the defense and all negotiations for settlement or compromise of the claim. 10.2 In the event that any such claim and CBT shall control and defend Program (in whole or settle any such claim at CBT's expense and with CBT's choice in part) becomes, or ECi is advised by legal counsel that it is likely to become, the subject of counsel. CL shall cooperate with CBTan infringement claim, at CBT's expense, in defending or settling such claim and CL ECi may join in defense with counsel of its choice at its own expense. CL may not settle any claim without CBT's prior written consent. Following notice of any claim with respect to which CL believes itself entitled to indemnification under this section, CBT shall have the right at its option and expense either secure Customer's right to continue using such program, replace or modify it to make it noninfringing (i) procure for CL and in ways not materially adversely affecting the End-Users utility of the right or license to use the Courseware as delivered; (ii) modify the infringing materials so as to render them non-infringing; (iii) replace the Courseware or parts thereof with other functionally equivalent software; or (iv) if (iprogram), (ii) or if none of the foregoing alternatives is reasonably available or commercially feasible to ECi, discontinue the Program upon one month's notice and (iii)terminate Customer’s license and, and each where the Program is licensed on a perpetual basis, grant Customer a pro rata refund of them, are not commercially feasible, terminate this Agreement and refund to CL amounts the license fee paid for unsold inventorythe discontinued Program, which inventory CL shall promptly return to CBT.calculated on the basis of straight-line depreciation over a three-year useful life or, where the Program is licensed on a subscription basis, grant Customer a pro rata refund of the unused portion of any license fees paid in advance for the discontinued Program, based on the number of full months, if any, remaining in the duration of the subscription term (b) CBT 10.3 Notwithstanding anything in this Agreement, ECi shall have no liability for any claim of infringement based on (i1) the use of the Courseware other than as set forth in the Documentation; (ii) the modification current supported release of the Courseware Program, unaltered by any party other than CBT anyone except ECi, if such infringement would have been avoided by the use of such current supported unaltered release and ECi has provided or offers to provide such release to Customer; (2) use or combination of the unmodified CoursewareProgram with programs or data not supplied or approved by ECi to the extent such use or combination caused the infringement; (3) use of the Program for a purpose or in a manner for which the Program was not designed; or (iii4) any modification to the combination or use of the Courseware with other software, items or processes not furnished by CBT if such infringement would have been avoided by the use of the Courseware aloneProgram made without ECi’s express written approval. If the Courseware being distributed infringes an intellectual property right of a third party, CL shall have up to 90 days (after a new release of the Courseware that does not infringe has been provided to CL) to begin distribution of such new release. CBT shall have no liability or obligation to indemnify pursuant to The remedies set forth in this Section 10 constitute the sole and exclusive remedies of Customer and ECi's exclusive liability with respect to claims for any infringement violation due to use of Courseware by an end user that was not provided with a new release within such ninety (90) day period. THIS SECTION 4.2proprietary rights of third parties.

Proprietary Rights Indemnification. (a) CBT shall indemnify CL Red Hat hereby represents and hold it harmless from any and all damages, liabilities, costs and expenses (including but not limited to reasonable attorneys' fees) incurred by CL as a result of any claim (or a claim by an end user that is related to a claim) warrants that the Courseware or Products and the Trademarks or sale and use of the Products do not infringe on any part thereof infringes any copyright, patent, copyrighttrademark, trademark trade secret, or trade secret other proprietary or intellectual property right of any third party, provided and that CL promptly notifies CBT in writing there are no suits or proceedings pending or threatened alleging any such infringement Red Hat 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, as soon as reasonably possible, inform Red Hat of any such claim suit or proceeding filed against Tech Data and CBT shall control and defend or settle any such claim at CBT's expense and with CBT's choice of counsel. CL shall cooperate with CBT, at CBT's expense, in defending or settling such claim and CL may join in defense with counsel of its choice at its own expense. CL may not settle any claim without CBT's prior written consent. Following notice of any claim with respect to which CL believes itself entitled to indemnification under this section, CBT shall have the right right, but not the obligation, to participate in the defense of any such suit or proceeding at Tech Data's expense. Tech Data will provide its reasonable assistance in the defense of any claim, suit or proceeding, at Red Hat's expense. Red Hat shall, at its option and expense to expense, either (i) procure for CL Tech Data, its Customers and the End-End Users the right or license to continue to use the Courseware Product as delivered; set forth in this Agreement, or (ii) replace, to the extent Products are available, or modify the infringing materials so as Product to render them make its use non-infringing; (iii) replace infringing while being capable of performing the Courseware or parts thereof with other functionally equivalent software; or (iv) if same function without degradation of performance. If neither of the foregoing alternatives (i), ) or (ii) is reasonably available, Red Hat shall accept a return of the Products from Tech Data, at Red Hat's sole loss and (iii)expense, and each of them, are not commercially feasible, terminate this Agreement and shall refund to CL amounts Tech Data the full amount of the price paid by Tech Data for unsold inventorysaid returned Products, which inventory CL shall promptly return to CBT. (b) CBT less any price protection credits, but not including any early payment or prepayment discounts. Red Hat shall have no liability under this Section 6.2 for any infringement based on (i) the use of any Product, if the Courseware other than as set forth Product is used in the Documentation; (ii) the modification of the Courseware by any party other than CBT if such infringement would have been avoided by the use of the unmodified Courseware; a manner or (iii) the combination or use of the Courseware with other software, items or processes equipment for which it was not furnished by CBT if such infringement would have been avoided by the use of the Courseware alonereasonably intended. If the Courseware being distributed infringes an intellectual property right of a third party, CL shall have up to 90 days (after a new release of the Courseware that does not infringe has been provided to CL) to begin distribution of such new release. CBT shall have no liability or obligation to indemnify pursuant to Red Hat's obligations under this Section for any infringement violation due to use 6.2 shall survive termination or expiration of Courseware by an end user that was not provided with a new release within such ninety (90) day period. THIS SECTION 4.2this Agreement.

Proprietary Rights Indemnification. (a) CBT 10.1 ECI, at its own expense, shall indemnify CL defend any third party action brought against Customer, to the extent that it is based on a claim that a Program used within the scope of the license granted hereunder infringes on a valid and enforceable copyright registered in the United States, or a trade secret, and shall hold it Customer harmless from any and all damages, liabilities, costs and expenses (including but not limited to reasonable attorneys' fees) incurred liability for any damages finally awarded by CL a court as a result of any claim (or a claim by an end user that is related to such a claim) that , or resulting from the Courseware or the Trademarks or any part thereof infringes any patent, copyright, trademark or trade secret of any third partysettlement thereof, provided that CL Customer notifies ECI promptly notifies CBT in writing of the action (and all prior claims relating to such action) and ECI has sole control of the defense and all negotiations for settlement or compromise of the claim. 10.2 In the event that any such claim and CBT shall control and defend Program module becomes, or settle any such claim at CBT's expense and with CBT's choice ECI is advised by legal counsel that it is likely to become, the subject of counsel. CL shall cooperate with CBTan infringement claim, at CBT's expense, in defending or settling such claim and CL ECI may join in defense with counsel of its choice at its own expense. CL may not settle any claim without CBT's prior written consent. Following notice of any claim with respect to which CL believes itself entitled to indemnification under this section, CBT shall have the right at its option and expense either secure Customer's right to continue using such program, replace or modify it to make it noninfringing (i) procure for CL and in ways not materially adversely affecting the End-Users utility of the right or license to use the Courseware as delivered; (ii) modify the infringing materials so as to render them non-infringing; (iii) replace the Courseware or parts thereof with other functionally equivalent software; or (iv) if (iprogram), (ii) or if none of the foregoing alternatives is reasonably available or commercially feasible to ECI, discontinue the Program upon one month's notice and (iii), terminate Customer’s license and each grant Customer a prorata refund of them, are not commercially feasible, terminate this Agreement and refund to CL amounts the license fee paid for unsold inventorythe discontinued Program, which inventory CL shall promptly return to CBTcalculated on the basis of straight-line depreciation over a three-year useful life. (b) CBT 10.3 ECI shall have no liability for any claim of infringement based on (i1) the use of the Courseware other than as set forth in the Documentation; (ii) the modification current supported release of the Courseware Program, unaltered by any party other than CBT anyone except ECI, if such infringement would have been avoided by the use of the unmodified Courseware; such current supported unaltered release and ECI has provided or offers to provide such release to Customer or (iii2) the use or combination or use of the Courseware Program with other software, items programs or processes data not furnished supplied or approved by CBT if ECI to the extent such infringement would have been avoided by use or combination caused the use of the Courseware aloneinfringement. If the Courseware being distributed infringes an intellectual property right of a third party, CL shall have up to 90 days (after a new release of the Courseware that does not infringe has been provided to CL) to begin distribution of such new release. CBT shall have no liability or obligation to indemnify pursuant to The remedies set forth in this Section 10 constitute the sole remedies of Customer and ECI's exclusive liability with respect to claims for any infringement violation due to use of Courseware by an end user that was not provided with a new release within such ninety (90) day period. THIS SECTION 4.2proprietary rights of third parties.