Common use of Warranty and Indemnity Clause in Contracts

Warranty and Indemnity. 11.1. Each party represents and warrants that neither the execution or performance by such party of this Agreement, nor the consummation of any transactions herein does or will violate any law, order, regulation or ruling applicable to such party or its efforts hereunder. In addition, Wink represents and warrants that (a) as of the Effective Date, no action or proceeding alleging intellectual property infringement by the Wink Engine has been threatened or is proceeding against Wink (nor, insofar as Wink is aware, against any entity from which Wink has obtained any rights related to the Wink Engine), (b) it has the right to license the Intellectual Property Rights in and to the Wink Engine to CE Manufacturer and (c) the Licensed Engine Product does not infringe upon or violate any third party copyright, trade secret, trademark or any U.S. patent right where such patent has been granted prior to the Effective Date. CE Manufacturer's exclusive remedy, and Wink's sole liability, for a breach by Wink of the warranties of subsections (a), (b) and (c) above shall be Wink's indemnity set forth in this Section 11. 11.2. Wink agrees to defend, or at its option to settle, any claim, suit, action or proceeding brought against CE Manufacturer by a third party as a result of Wink's breach of its warranties under 12.l(b) and (c) above (an "Action"), and to pay any settlement or final judgment entered thereon against CE Manufacturer, subject to the limitations set forth hereafter. Wink shall be relieved of its obligations hereunder unless CE Manufacturer gives Wink (i) prompt written notice upon becoming aware of the existence of an Action, (ii) sole control over the defense or settlement of the Action and (iii) reasonable assistance in the defense or settlement thereof. If it is, or in the opinion of Wink may be, determined by competent authority that the Licensed Engine Product or any part thereof, or the sale, distribution or use thereof as permitted hereunder infringes any third party intellectual property rights warranted in section 11.1(c) or is enjoined, then Wink at its sole option and expense may (a) procure for CE Manufacturer the right under such third party intellectual property rights listed in section 11.1(c) to use, reproduce and distribute the Licensed Engine Product or such part thereof or such trademark; (b) replace the Licensed Engine Product or such part thereof or such trademark with other suitable software or trademark without material degradation in performance or functionality; (c) suitably modify the Licensed Engine Product or such part thereof or such trademark to avoid infringement without material degradation in performance or functionality; or (d) if none of the foregoing are commercially reasonably feasible, terminate this Agreement. 11.3. The foregoing indemnity shall not apply to an Action to the extent it arises out of (i) any modification of the Licensed Engine Product by a party other than Wink or on Wink's behalf, (ii) any combination of the Licensed Engine Product with hardware and/or software not supplied by Wink (except the hardware of the CE Manufacturer Device), which infringement does not cover the Wink Engine standing alone, or (iii) any trademarks, trade names or other brandings not supplied by Wink. As used in Subsection 11.3(i), "on Wink's behalf' shall mean that Wink has given its written authorization for CE Manufacturer or a third party to perform such modifications.

Warranty and Indemnity. 11.1. Each party 6.1 deCODE represents and warrants that neither it is the execution or performance by such party of this Agreement, nor the consummation of any transactions herein does or will violate any law, order, regulation or ruling applicable to such party or its efforts hereunder. In addition, Wink represents sole and warrants that (a) as exclusive owner of the Effective DateLicensed Patents, no action or proceeding alleging intellectual property infringement by the Wink Engine has been threatened or is proceeding against Wink (nor, insofar as Wink is aware, against any entity from which Wink has obtained any rights related to the Wink Engine), (b) that it has the right to grant the license the Intellectual Property Rights to Celera and its Affiliates under this Agreement, and it is not a party to any existing assignments, grants, licenses, encumbrances, obligations or agreements, written or oral, inconsistent with this Agreement, and that no Licensed Patent has been mortgaged, pledged, assigned for security purposes, encumbered or otherwise conveyed as collateral to secure any obligation. 6.2 Nothing in and this Agreement will be construed as: (a) a warranty or representation by either party as to the Wink Engine validity, enforceability or scope of any Licensed Patent; or (b) a warranty or representation by either party that anything made, used, sold, or otherwise disposed of pursuant to CE Manufacturer this Agreement is or will be free from infringement of patents or other intangible rights of third parties; or (c) an obligation of either party to furnish any manufacturing or technical information except as specifically provided herein; or (d) granting by implication, estoppel, or otherwise, any license or rights under patents, trade secrets, knowhow, copyrights, or other intangible rights of deCODE other than the Licensed Patents. 6.3 deCODE makes no representations, extends no warranties of any kind, either express or implied, and assumes no responsibilities whatever with respect to manufacture, use, sale or other disposition by Celera, its Affiliates or its distributors or its customers or transferees or their customers of products or methods incorporating or made by use of Licensed Patents licensed under this Agreement. 6.4 CELERA HEREBY WAIVES, RELEASES AND RENOUNCES ANY AND ALL WARRANTIES, GUARANTEES, OBLIGATIONS, LIABILITIES, RIGHTS AND REMEDIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE USEFULNESS OR FREEDOM FROM DEFECTS OF THE LICENSED PATENTS, INCLUDING, BUT NOT LIMITED TO, (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, (b) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN THE TRADE, and (c) the Licensed Engine Product does not infringe upon or violate any third party copyrightANY OBLIGATION, trade secretRIGHT, trademark or any U.S. patent right where such patent has been granted prior to the Effective Date. CE Manufacturer's exclusive remedyLIABILITY, CLAIM OR REMEDY FOR (1) LOSS OF USE, REVENUE OR PROFIT, OR ANY OTHER DAMAGES, (2) INFRINGEMENT OF THIRD PARTY INTANGIBLE PROPERTY RIGHTS, and Wink's sole liability, for a breach by Wink of the warranties of subsections (a), (b3) and (c) above shall be Wink's indemnity set forth in this Section 11INCIDENTAL OR CONSEQUENTIAL DAMAGES. 11.2. Wink agrees to defend, or at its option to settle, any claim, suit, action or proceeding brought against CE Manufacturer by a third party as a result of Wink's breach of its warranties under 12.l(b) and (c) above (an "Action"), and to pay any settlement or final judgment entered thereon against CE Manufacturer, subject to the limitations set forth hereafter. Wink shall be relieved of its obligations hereunder unless CE Manufacturer gives Wink (i) prompt written notice upon becoming aware of the existence of an Action, (ii) sole control over the defense or settlement of the Action and (iii) reasonable assistance in the defense or settlement thereof. If it is, or in the opinion of Wink may be, determined by competent authority that the Licensed Engine Product or any part thereof, or the sale, distribution or use thereof as permitted hereunder infringes any third party intellectual property rights warranted in section 11.1(c) or is enjoined, then Wink at its sole option and expense may (a) procure for CE Manufacturer the right under such third party intellectual property rights listed in section 11.1(c) to use, reproduce and distribute the Licensed Engine Product or such part thereof or such trademark; (b) replace the Licensed Engine Product or such part thereof or such trademark with other suitable software or trademark without material degradation in performance or functionality; (c) suitably modify the Licensed Engine Product or such part thereof or such trademark to avoid infringement without material degradation in performance or functionality; or (d) if none of the foregoing are commercially reasonably feasible, terminate this Agreement. 11.3. The foregoing indemnity shall not apply to an Action to the extent it arises out of (i) any modification of the Licensed Engine Product by a party other than Wink or on Wink's behalf, (ii) any combination of the Licensed Engine Product with hardware and/or software not supplied by Wink (except the hardware of the CE Manufacturer Device), which infringement does not cover the Wink Engine standing alone, or (iii) any trademarks, trade names or other brandings not supplied by Wink. As used in Subsection 11.3(i), "on Wink's behalf' shall mean that Wink has given its written authorization for CE Manufacturer or a third party to perform such modifications.

Warranty and Indemnity. 11.1. 8.1 Each party represents and warrants to the other that neither (a) it has full power and authority to enter into this Agreement and to grant the execution or performance licenses provided herein and (b) this Agreement has been duly authorized, executed and delivered by such party. 8.2 Each party will indemnify the other against any and all claims, losses, liabilities, costs and expenses, including reasonable attorneys' fees (collectively, "Claims") which the other may incur as a result of any third party actions arising from or relating to: (a) a breach of a party's representations, warranties or covenants contained in this Agreement; or (b) infringement by any of the indemnifying party's Marks or Content of a U.S. patent, nor the consummation copyright, trademark or other intellectual property right of a third party or misappropriation of any transactions herein does third party trade secret, except where such Xxxx or Content has been modified without authorization, and such modification is the basis of the Claim; such indemnification will violate be the indemnifying party's sole and exclusive obligation and the indemnified party's sole and exclusive remedy as a result of any law, order, regulation or ruling applicable to such third party or its efforts hereunderactions arising from the matters described herein. In addition, Wink represents FairMarket agrees to indemnify, defend and warrants that (a) as hold eBay harmless in the event of the Effective Date, no action or proceeding alleging intellectual property infringement by the Wink Engine has been threatened or is proceeding against Wink (nor, insofar as Wink is aware, against any entity from which Wink has obtained any rights related to the Wink Engine), (b) it has the right to license the Intellectual Property Rights in and to the Wink Engine to CE Manufacturer and (c) the Licensed Engine Product does not infringe upon or violate any third party Claim that the FairMarket Service or the FairMarket Technology infringes the intellectual property rights of any third party, including but not limited to patent, copyright, trade secretor trademark, trademark or any U.S. patent right where such patent has been granted prior except for Claims under the Commerce Services Agreement dated as of February 28, 2002 between the parties with respect to the Effective Date. CE Manufacturer's exclusive remedyBKRewards site, and Wink's sole liability, for a breach which shall continue to be governed by Wink the terms of the warranties of subsections (a), (b) and (c) above shall be Wink's indemnity set forth in this Section 11that agreement. 11.2. Wink agrees to defend, or at its option to settle, 8.3 A party seeking indemnification under Section 8.2 shall promptly notify the other party in writing of any claim, suit, action or proceeding brought against CE Manufacturer by a third and all such claims and shall reasonably cooperate with such other party as a result of Wink's breach of its warranties under 12.l(b) and (c) above (an "Action"), and to pay any settlement or final judgment entered thereon against CE Manufacturer, subject to the limitations set forth hereafter. Wink shall be relieved of its obligations hereunder unless CE Manufacturer gives Wink (i) prompt written notice upon becoming aware of the existence of an Action, (ii) sole control over the defense or settlement of the Action and (iii) reasonable assistance in the defense or and/or settlement thereof. If it is; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or prejudices or detrimentally impacts the indemnified party in the opinion of Wink may be, determined by competent authority that the Licensed Engine Product or any part thereof, or the sale, distribution or use thereof as permitted hereunder infringes any third party intellectual property rights warranted in section 11.1(c) or is enjoinedway, then Wink such settlement shall require the indemnified party's prior written consent (not to be unreasonably withheld or delayed) and the indemnified party may, at its sole option cost and expense may (a) procure for CE Manufacturer the right under expense, have its own counsel in attendance at all proceedings and substantive negotiations relating to such third party intellectual property rights listed in section 11.1(c) to use, reproduce and distribute the Licensed Engine Product or such part thereof or such trademark; (b) replace the Licensed Engine Product or such part thereof or such trademark with other suitable software or trademark without material degradation in performance or functionality; (c) suitably modify the Licensed Engine Product or such part thereof or such trademark to avoid infringement without material degradation in performance or functionality; or (d) if none of the foregoing are commercially reasonably feasible, terminate this Agreementclaim. 11.3. The foregoing indemnity shall not apply to an Action to the extent it arises out of (i) any modification of the Licensed Engine Product by a party other than Wink or on Wink's behalf8.4 EXCEPT AS SPECIFIED IN THIS AGREEMENT, (ii) any combination of the Licensed Engine Product with hardware and/or software not supplied by Wink (except the hardware of the CE Manufacturer Device)INCLUDING ALL EXHIBITS HERETO, which infringement does not cover the Wink Engine standing aloneNEITHER PARTY MAKES ANY WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, or (iii) any trademarksINCLUDING ALL IMPLIED WARRANTIES OF TITLE, trade names or other brandings not supplied by Wink. As used in Subsection 11.3(i)NON-INFRINGEMENT, "on Wink's behalf' shall mean that Wink has given its written authorization for CE Manufacturer or a third party to perform such modificationsMERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER.

Warranty and Indemnity. 11.1. Each party represents and 6.1 ICS warrants that neither the execution or performance by such party of this Agreement, nor the consummation of any transactions herein does or will violate any law, order, regulation or ruling applicable to such party or its efforts hereunder. In addition, Wink represents and warrants that (a) as of the Effective Date, no action or proceeding alleging intellectual property infringement by the Wink Engine has been threatened or is proceeding against Wink (nor, insofar as Wink is aware, against any entity from which Wink has obtained any rights related to the Wink Engine), (b) it has the right to use and license the Intellectual Property Rights in use of the design provided by Customer and processes provided by Customer and hereby grants to CSM the Wink Engine right to CE Manufacturer use the aforesaid design and (c) processes for the Licensed Engine Product does not infringe upon performance of its obligations under this Agreement and the Manufacturing Agreement. 6.2 ICS shall indemnify, hold harmless and defend CSM against any claims that Customer's products or violate a process or design licensed from or otherwise provided by Customer and used by CSM for the performance of its obligations under this Agreement is an infringement of any letters patent or other intellectual property rights, including, without limitation, any infringement based on specifications furnished by Customer or resulting from the use of any equipment or process specified by Customer. 6.3 CSM shall notify ICS of any claim of infringement or of commencement of any suit, action, or proceedings alleging infringement of any intellectual property rights of any third party copyright, trade secret, trademark or any U.S. patent forthwith after receiving notice thereof. ICS shall have the right where such patent has been granted prior to the Effective Date. CE Manufacturer's exclusive remedy, in its sole discretion and Wink's sole liability, for a breach by Wink of the warranties of subsections (a), (b) and (c) above shall be Wink's indemnity set forth in this Section 11. 11.2. Wink agrees to defend, or at its option expense to settle, participate in the defence of any such claim, suit, action or proceeding brought proceedings and in any and all negotiations with respect thereto. 6.4 CSM shall indemnify, hold harmless and defend ICS against CE Manufacturer any claims that the wafers manufactured by a third party as a result of Wink's breach of its warranties under 12.l(b) and (c) above (an "Action"), and CSM pursuant to pay any settlement or final judgment entered thereon against CE Manufacturer, subject to this Agreement using manufacturing processes provided by CSM for the limitations set forth hereafter. Wink shall be relieved performance of its obligations hereunder unless CE Manufacturer gives Wink (i) prompt written notice upon becoming aware under this Agreement is an infringement of the existence any letters patent or other intellectual property rights of an Actionany third party. 6.5 ICS shall notify CSM of any claim of infringement or of commencement of any suit, (ii) sole control over the defense or settlement of the Action and (iii) reasonable assistance in the defense or settlement thereof. If it isaction, or in the opinion proceedings alleging infringement of Wink may be, determined by competent authority that the Licensed Engine Product or any part thereof, or the sale, distribution or use thereof as permitted hereunder infringes intellectual property rights of any third party intellectual property rights warranted forthwith after receiving notice thereof. CSM shall have the right in section 11.1(c) or is enjoined, then Wink its sole discretion and at its sole option expense to participate in the defence of any such claim, suit, action or proceedings and expense may (a) procure for CE Manufacturer in any and all negotiations with respect thereto. 6.6 ICS hereby agrees that in the right under such event that CSM is required to make any payments, including without limitation, licence fees or royalty payments, to any third party intellectual property rights listed in section 11.1(c) respect of any of CSM's manufacturing processes used by CSM in the performance of its obligations under this Agreement, CSM shall be entitled to use, reproduce and distribute adjust the Licensed Engine Product or such part thereof or such trademark; (b) replace the Licensed Engine Product or such part thereof or such trademark with other suitable software or trademark without material degradation in performance or functionality; (c) suitably modify the Licensed Engine Product or such part thereof or such trademark to avoid infringement without material degradation in performance or functionality; or (d) if none pricing of the foregoing are commercially reasonably feasible, terminate this Agreementwafers supplied to Customer accordingly. Such adjustment shall be effective upon CSM giving to ICS not less than 3 months' prior written notice thereof. 11.3. The foregoing indemnity shall not apply to an Action to the extent it arises out of (i) any modification of the Licensed Engine Product by a party other than Wink or on Wink's behalf, (ii) any combination of the Licensed Engine Product with hardware and/or software not supplied by Wink (except the hardware of the CE Manufacturer Device), which infringement does not cover the Wink Engine standing alone, or (iii) any trademarks, trade names or other brandings not supplied by Wink. As used in Subsection 11.3(i), "on Wink's behalf' shall mean that Wink has given its written authorization for CE Manufacturer or a third party to perform such modifications.

Warranty and Indemnity. 11.1. Each party represents and 7.1 HP warrants that neither the execution or performance by such party of this Agreement, nor the consummation of any transactions herein does or will violate any law, order, regulation or ruling applicable to such party or its efforts hereunder. In addition, Wink represents and warrants that (a) as of the Effective Date, no action or proceeding alleging intellectual property infringement by the Wink Engine has been threatened or is proceeding against Wink (nor, insofar as Wink is aware, against any entity from which Wink has obtained any rights related to the Wink Engine), (b) it has the right or will obtain the right to use and license the Intellectual Property Rights in use of any design provided by HP and processes provided by HP pursuant to this Agreement and hereby grants to each of the Wink Engine Company and CSM the right only to CE Manufacturer use such design and processes for the performance of their respective obligations under this Agreement and any applicable Manufacturing Agreements. (ca) HP shall indemnify the Licensed Engine Product does Company and hold the Company harmless against any and all direct losses, liabilities, damages or expenses (including direct losses suffered by the Company and any reasonable attorneys fees, whether or not infringe a legal proceeding is commenced) resulting from any claim against the Company based upon an actual or violate any alleged infringement of a third party party's patent, mask work right, copyright, trade secret, trademark secrets or any U.S. patent right where such patent has been granted prior to the Effective Date. CE Manufacturer's exclusive remedy, and Wink's sole liability, for a breach by Wink of the warranties of subsections (a), (b) and (c) above shall be Wink's indemnity set forth in this Section 11. 11.2. Wink agrees to defend, or at its option to settle, any claim, suit, action or proceeding brought against CE Manufacturer by a third party as a result of Wink's breach of its warranties under 12.l(b) and (c) above (an "Action"), and to pay any settlement or final judgment entered thereon against CE Manufacturer, subject to the limitations set forth hereafter. Wink shall be relieved of its obligations hereunder unless CE Manufacturer gives Wink (i) prompt written notice upon becoming aware of the existence of an Action, (ii) sole control over the defense or settlement of the Action and (iii) reasonable assistance in the defense or settlement thereof. If it is, or in the opinion of Wink may be, determined by competent authority that the Licensed Engine Product or any part thereof, or the sale, distribution or use thereof as permitted hereunder infringes any third party other intellectual property rights warranted in section 11.1(c) or is enjoined, then Wink at its sole option and expense may (a) procure for CE Manufacturer the right under such third party by intellectual property rights listed in section 11.1(c) provided by HP hereunder which arise from the Company's supply of Wafers to use, reproduce and distribute the Licensed Engine Product or such part thereof or such trademark; (b) replace the Licensed Engine Product or such part thereof or such trademark with other suitable software or trademark without material degradation in performance or functionality; (c) suitably modify the Licensed Engine Product or such part thereof or such trademark HP pursuant to avoid infringement without material degradation in performance or functionality; or (d) if none of the foregoing are commercially reasonably feasible, terminate this Agreement. 11.3. (b) The foregoing indemnity Company shall indemnify HP and hold HP harmless against any and all direct losses, liabilities, damages or expenses (including direct losses suffered by HP and any reasonable attorneys fees, whether or not a legal proceeding is commenced) resulting from a claim against HP based upon an actual or alleged infringement of a third party's patent, mask work right, copyright, trade secrets or other intellectual property right arising from the use of any material, techniques or process provided by the Company in the performance of its obligations under this Agreement. (a) HP shall indemnify CSM and hold CSM harmless against any and all direct losses, liabilities, damages or expenses (including direct losses suffered by CSM and any reasonable attorneys fees, whether or not a legal proceeding is commenced) resulting from any claim against CSM based upon an actual or alleged infringement of a third party's patent, mask work right, copyright, trade secrets or other intellectual property right by intellectual property provided by HP hereunder which arise from CSM's supply of Wafers to HP pursuant to this Agreement. (b) CSM shall indemnify HP and hold HP harmless against any and all direct losses, liabilities, damages or expenses (including direct losses suffered by HP and any reasonable attorneys fees, whether or not a legal proceeding is commenced) resulting from a claim against HP based upon an actual or alleged infringement of a third party's patent, mask work right, copyright, trade secrets or other intellectual The Company - CSM - HP Confidential 13 16 property right arising from the use of any material, techniques or process provided by CSM in the performance of its obligations under this Agreement. (a) An indemnifying Party shall not apply have any liability under this Clause 7 unless it is promptly notified in writing of each notice and communication regarding such claim and is offered (at the indemnifying Party's expense) the authority, information and assistance necessary to an Action to present a defense and sole control of the extent it arises out defense. (b) The indemnified Party may, at its expense, participate in the defense of such claim and in all negotiations for its settlement or compromise. (c) Notwithstanding the foregoing, (i) any modification of the Licensed Engine Product by a party other than Wink or on Wink's behalf, Parties shall act in good faith and (ii) no settlement of any combination claim may be agreed to without the written consent of all the Parties affected, which consent shall not be unreasonably withheld. The Party controlling the defense shall deliver, or cause to be delivered, to the other affected Parties copies of all correspondence, pleadings, motions, briefs, appeals or other written statements relating to or submitted in connection with the defense of any claim, and timely notices of any hearing or other court proceeding relating to such claim. 7.5 The foregoing states each Party's entire liability and obligation (express, implied, statutory or otherwise) with respect to intellectual property infringement or claims therefor regarding any of the Licensed Engine Product with hardware and/or software not supplied by Wink (except the hardware of the CE Manufacturer Device), which infringement does not cover the Wink Engine standing alone, products or (iii) technology manufactured or sold pursuant to this Agreement and any trademarks, trade names or other brandings not supplied by Wink. As used in Subsection 11.3(i), "on Wink's behalf' shall mean that Wink has given its written authorization for CE Manufacturer or a third party to perform such modificationsapplicable Manufacturing Agreement.

Warranty and Indemnity. 11.1. Each party represents and 7.1 Customer warrants that neither the execution or performance by such party of this Agreement, nor the consummation of any transactions herein does or will violate any law, order, regulation or ruling applicable to such party or its efforts hereunder. In addition, Wink represents and warrants that (a) as of the Effective Date, no action or proceeding alleging intellectual property infringement by the Wink Engine has been threatened or is proceeding against Wink (nor, insofar as Wink is aware, against any entity from which Wink has obtained any rights related to the Wink Engine), (b) it has the right to use and license the Intellectual Property Rights in use of the design and processes provided by Customer or required for the production of Customer's products under this Agreement and the Manufacturing Agreement (when signed by the Parties) and hereby grants to CSM the Wink Engine right to CE Manufacturer use the aforesaid design and (c) processes for the Licensed Engine Product does not infringe upon performance of its obligations under this Agreement and the Manufacture Agreement. 7.2 Customer shall indemnify, hold harmless and defend CSM against any claims that Customer's products or violate a process or design licensed from or otherwise provided by Customer and used by CSM for the performance of its obligations under this Agreement is an infringement of any letters patent or other intellectual property rights, including, without limitation, any infringement based on specifications furnished by Customer or resulting from the use of any equipment or process specified by Customer. 7.3 CSM shall notify Customer of any claim of infringement or of commencement of any suit, action, or proceedings alleging infringement of any intellectual property rights of any third party copyright, trade secret, trademark or any U.S. patent forthwith after receiving notice thereof. Customer shall have the right where such patent has been granted prior to the Effective Date. CE Manufacturer's exclusive remedy, in its sole discretion and Wink's sole liability, for a breach by Wink of the warranties of subsections (a), (b) and (c) above shall be Wink's indemnity set forth in this Section 11. 11.2. Wink agrees to defend, or at its option expense to settle, participate in the defence of any such claim, suit, action or proceeding brought proceedings and in any and all negotiations with respect thereto. 7.4 CSM shall indemnify, hold harmless and defend Customer against CE Manufacturer any claims that the wafers manufactured by a third party as a result of Wink's breach of its warranties under 12.l(b) and (c) above (an "Action"), and CSM pursuant to pay any settlement or final judgment entered thereon against CE Manufacturer, subject to this Agreement using manufacturing processes provided by CSM for the limitations set forth hereafter. Wink shall be relieved performance of its obligations hereunder unless CE Manufacturer gives Wink (i) prompt written notice upon becoming aware under this Agreement is an infringement of the existence any letters patent or other intellectual property rights of an Actionany third party. 7.5 Customer shall notify CSM of any claim of infringement or of commencement of any suit, (ii) sole control over the defense or settlement of the Action and (iii) reasonable assistance in the defense or settlement thereof. If it isaction, or in the opinion proceedings alleging infringement of Wink may be, determined by competent authority that the Licensed Engine Product or any part thereof, or the sale, distribution or use thereof as permitted hereunder infringes intellectual property rights of any third party intellectual property rights warranted forthwith after receiving notice thereof. CSM shall have the right in section 11.1(c) or is enjoined, then Wink its sole discretion and at its sole option expense to participate in the defence of any such claim, suit, action or proceedings and expense may (a) procure for CE Manufacturer the right under such third party intellectual property rights listed in section 11.1(c) to use, reproduce any and distribute the Licensed Engine Product or such part thereof or such trademark; (b) replace the Licensed Engine Product or such part thereof or such trademark all negotiations with other suitable software or trademark without material degradation in performance or functionality; (c) suitably modify the Licensed Engine Product or such part thereof or such trademark to avoid infringement without material degradation in performance or functionality; or (d) if none of the foregoing are commercially reasonably feasible, terminate this Agreementrespect thereto. 11.37.6 CUSTOMER'S AGGREGATE CUMULATIVE LIABILITY TO CSM ARISING OUT OF THE INDEMNIFICATION UNDER THIS CLAUSE 7 SHALL NOT EXCEED 5 PERCENT (5%) OF THE TOTAL AMOUNT RECEIVED BY CSM FROM CUSTOMER IN RESPECT OF THE SALE OF WAFERS BY CSM TO CUSTOMER. The foregoing indemnity shall not apply to an Action to the extent it arises out of CSM'S AGGREGATE CUMULATIVE LIABILITY TO CUSTOMER ARISING OUT OF THE INDEMNIFICATION UNDER THIS CLAUSE 13 SHALL NOT EXCEED 5 PERCENT (i5%) any modification of the Licensed Engine Product by a party other than Wink or on Wink's behalfOF THE TOTAL AMOUNT RECEIVED BY CSM FROM CUSTOMER IN RESPECT OF THE SALE OF WAFERS BY CSM TO CUSTOMER. THE FOREGOING STATES EACH PARTY'S ENTIRE LIABILITY AND OBLIGATION (EXPRESS, (iiIMPLIED, STATUTORY OR OTHERWISE) any combination of the Licensed Engine Product with hardware and/or software not supplied by Wink (except the hardware of the CE Manufacturer Device), which infringement does not cover the Wink Engine standing alone, or (iii) any trademarks, trade names or other brandings not supplied by Wink. As used in Subsection 11.3(i), "on Wink's behalf' shall mean that Wink has given its written authorization for CE Manufacturer or a third party to perform such modificationsWITH RESPECT TO INTELLECTUAL PROPERTY INFRINGEMENT OR CLAIMS THEREFOR REGARDING ANY OF THE WAFERS MANUFACTURED OR SOLD OR TECHNOLOGY USED PURSUANT TO THIS AGREEMENT.

Warranty and Indemnity. 11.1. Each party represents and warrants that neither the execution 4.1 EXCEPT AS EXPRESSLY STATED IN THIS ARTICLE IV, NO OTHER WARRANTIES OR REPRESENTATIONS ARE GIVEN BY LDI UNDER THIS AGREEMENT, including but not limited to, any warranty or performance by such party of this Agreement, nor the consummation of any transactions herein does or will violate any law, order, regulation or ruling applicable to such party or its efforts hereunder. In addition, Wink represents and warrants that representation: (a) as to the validity of the Effective Date, no action or proceeding alleging intellectual property infringement by the Wink Engine has been threatened or is proceeding against Wink (nor, insofar as Wink is aware, against any entity from which Wink has obtained any rights related to the Wink Engine), (b) it has the right to license the Intellectual Property Rights in and to the Wink Engine to CE Manufacturer and (c) the Licensed Engine Product does not infringe upon or violate any third party copyright, trade secret, trademark or any U.S. patent right where such patent has been granted prior to the Effective Date. CE Manufacturer's exclusive remedy, and Wink's sole liability, for a breach by Wink of the warranties of subsections (a), (b) and (c) above shall be Wink's indemnity set forth in this Section 11. 11.2. Wink agrees to defend, or at its option to settle, any claim, suit, action or proceeding brought against CE Manufacturer by a third party as a result of Wink's breach of its warranties under 12.l(b) and (c) above (an "Action"), and to pay any settlement or final judgment entered thereon against CE Manufacturer, subject to the limitations set forth hereafter. Wink shall be relieved of its obligations hereunder unless CE Manufacturer gives Wink (i) prompt written notice upon becoming aware of the existence of an Action, (ii) sole control over the defense or settlement of the Action and (iii) reasonable assistance in the defense or settlement thereof. If it is, or in the opinion of Wink may be, determined by competent authority that the Licensed Engine Product or any part thereof, or the sale, distribution or use thereof as permitted hereunder infringes any third party intellectual property rights warranted in section 11.1(c) or is enjoined, then Wink at its sole option and expense may (a) procure for CE Manufacturer the right under such third party intellectual property rights listed in section 11.1(c) to use, reproduce and distribute the Licensed Engine Product or such part thereof or such trademarkPatents; (b) replace the Licensed Engine that any manufacture, importation, sale, lease, use, or other disposition of Laser Subsurface Engraving Product or such part thereof or such trademark with other suitable software or trademark without material degradation in performance or functionalitywill be free from infringement of another party's intellectual property rights; (c) suitably modify that LDI will enforce any intellectual property rights it may have in the Licensed Engine Product or such part thereof or such trademark to avoid infringement without material degradation in performance or functionalityPatents against specific third parties; or (d) if none of the foregoing are commercially reasonably feasible, terminate this Agreement. 11.3. The foregoing indemnity shall not apply to an Action as to the extent it arises out quality of (i) merchantability, or fitness for a particular purpose of any modification Laser Subsurface Engraving Product. LDI will keep CUSA reasonably informed as to any final rulings in legal or government proceedings which affect the claims of the Licensed Engine Patents. 4.2 CUSA shall defend, indemnify, and hold harmless both LDI and Distillers, and their directors, officers, employees, and Affiliates, from and against any claims, liabilities, actions, costs or damages (including fees of attorneys and other professionals) arising from CUSA's manufacture, use, sale or distribution of Laser Subsurface Engraving Product or any representations by CUSA concerning Laser Subsurface Engraving Product, provided LDI gives CUSA notice of such claim, provides reasonable cooperation and assistance in connection with such claim, and does not agree to any settlement without CUSA's consent. 4.3 CUSA will provide reasonable cooperation and assistance to LDI in connection with any litigation concerning the Licensed Patents brought by or against a party other than Wink third party, including but not limited to any action or on Wink's behalf, (ii) any combination claim involving alleged infringement of the Licensed Engine Product with hardware and/or software Patents. Each party shall have the right, but not supplied by Wink (except the hardware obligation, to bring an action for infringement of the CE Manufacturer Device)Licensed Patents. The party not bringing the action will reasonably cooperate and assist therein, which infringement does not cover including a) joining as a named party, if necessary; and b) furnishing relevant evidence and testimony, all at the Wink Engine standing aloneexpense of the party initiating the action. Any monetary award or damages resulting from such action shall be accorded to the party bringing the action unless otherwise agreed by the parties. Licensor's agreement to join as a named party to a legal action initiated by Licensee may be contingent on a showing by Licensee that it has the financial resources necessary to sustain and complete the litigation. 4.4 LDI represents and warrants (a) that LDI has sufficient ownership interest in the Licensed Patents to grant the licenses that are granted under this Agreement, subject to the approval of Distillers and (b) that, subject to the receipt of applicable approvals from Distillers and Janesville, any manufacture, importation, sale, lease, use, or (iii) any trademarks, trade names other disposition of Laser Subsurface Engraving Product will be free from infringement of the patent rights of Janesville or other brandings not supplied by Wink. As used in Subsection 11.3(i), "on Wink's behalf' shall mean that Wink has given its written authorization for CE Manufacturer or a third party to perform such modificationsDistillers.

Warranty and Indemnity. 11.1. Each (a) Contractor hereby represents, warrants, and covenants to Adial that: (i) it has full right and authority to perform Contractor’s obligations under this Agreement and the right to use all Contractor Property to perform the services to be provided by it to Adial and such use will not infringe any third party rights; (ii) it has neither assigned nor otherwise entered into any agreement which purports to assign or transfer any interest in any intellectual property right that would conflict with Contractor’s obligations hereunder, and that Contractor shall not enter into any such agreement during the term of this Agreement; (iii) it is duly organized, validly existing, and in good standing under the laws of the state of its jurisdiction; (iv) it has the power and authority to operate its property and assets and to conduct its business as it now being conducted; (v) it is in and will remain in compliance with all applicable federal, state, and local laws and regulations and has obtained all necessary licenses, permits, consents, approvals, and authorizations in connection with is performance hereunder; (vi) it has the necessary facilities, equipment, know-how, and personnel to satisfy its obligations hereunder; (vii) to the extent applicable hereunder, it shall produce all products in conformance with the current Good Manufacturing Practice (cGMP) regulations and guidelines as promulgated by the United States Food and Drug Administration including, without limitation, 21 CFR Part 210; and (viii) any documentation or reports provided to Adial shall be accurate and complete. (ix) Contractor represents and warrants that neither it shall not employ, contract with, or retain any person directly or indirectly to perform the execution services under this Agreement if such person is under investigation by the FDA for debarment or performance is presently debarred by the FDA pursuant to the Generic Drug Enforcement Act of 1992, as amended (21 U.S.C. § 301, et seq.). In addition, Contractor represents and warrants that it has not engaged in any conduct or activity which could lead to any such party debarment actions. If during the term of this Agreement, nor the consummation of any transactions herein does or will violate any law, order, regulation or ruling applicable to such party or its efforts hereunder. In addition, Wink represents and warrants that (a) as of the Effective Date, no action or proceeding alleging intellectual property infringement by the Wink Engine has been threatened or is proceeding against Wink (nor, insofar as Wink is aware, against any entity from which Wink has obtained any rights related to the Wink Engine), (b) it has the right to license the Intellectual Property Rights in and to the Wink Engine to CE Manufacturer and (c) the Licensed Engine Product does not infringe upon or violate any third party copyright, trade secret, trademark Contractor or any U.S. patent right where such patent has been granted prior person employed or retained by it to perform the Effective Date. CE Manufacturer's exclusive remedy, and Wink's sole liability, for a breach by Wink of the warranties of subsections (a), (b) and (c) above shall be Wink's indemnity set forth in this Section 11. 11.2. Wink agrees to defend, or at its option to settle, any claim, suit, action or proceeding brought against CE Manufacturer by a third party as a result of Wink's breach of its warranties under 12.l(b) and (c) above (an "Action"), and to pay any settlement or final judgment entered thereon against CE Manufacturer, subject to the limitations set forth hereafter. Wink shall be relieved of its obligations hereunder unless CE Manufacturer gives Wink services (i) prompt written notice upon becoming aware of comes under investigation by the existence of an ActionFDA for a debarment action, (ii) sole control over the defense is debarred, or settlement of the Action and (iii) reasonable assistance engages in any conduct or activity that could lead to debarment, Contractor shall immediately notify Adial of the same. (x) Contractor will not, in the defense course of conducting the services, infringe or settlement thereofmisappropriate, and that neither the Work Product nor any element thereof will infringe or misappropriate, any intellectual property right of any third party. (xi) the Services performed and the Work Product will fully conform to the specifications, requirements, and other terms in the applicable statement of work and this Agreement. If it isIn the event of a breach of this warranty, without limiting any other rights or remedies Adial may have, Contractor shall, at Adial’s option, promptly re-perform the non-conforming services at no additional charge to Adial or refund all payments previous made by Adial under the applicable statement of work. (xii) Contractor shall promptly take all action necessary to ensure that (x)BBCET is compliant with all requests of any regulatory agencies, clinical sites and third party vendor requests (y) any deficiencies with BBCET discovered by Adial or any third party are promptly corrected and (z) that BBCETcan be used as anticipated by Company in its clinical trials. (b) Contractor shall indemnify and hold harmless Adial and its subsidiaries, parent company, commonly held entities, and their respective directors, officers, employees and agents (“Adial Indemnitees”) from any claim, loss, or in the opinion expense (“Claims”)incurred or arising from Contractor’s negligence, willful misconduct, or breach of Wink may be, determined by competent authority that the Licensed Engine Product this Agreement or any part thereof, statement of work or the sale, distribution any alleged infringement or use thereof as permitted hereunder infringes any misappropriation of third party intellectual property rights warranted in section 11.1(c) or is enjoined, then Wink at its sole option and expense may (a) procure for CE Manufacturer connection with the right under such third party intellectual property rights listed in section 11.1(c) to use, reproduce and distribute the Licensed Engine Product or such part thereof or such trademark; (b) replace the Licensed Engine Product or such part thereof or such trademark with other suitable software or trademark without material degradation in performance or functionality; (c) suitably modify the Licensed Engine Product or such part thereof or such trademark to avoid infringement without material degradation in performance or functionality; or (d) if none of the foregoing are commercially reasonably feasible, terminate this Agreement. 11.3any services. The foregoing Such indemnity shall not apply if Adial fails to an Action comply with the indemnification procedures set forth in Section 6, or to the extent it that a Claim arises out of or results from (i) the negligence, gross negligence, or intentional misconduct on the part of any modification of the Licensed Engine Product by a party other than Wink or on Wink's behalfAdial Indemnitees, (ii) a failure of any combination one of the Licensed Engine Product Adial Indemnitees to comply with hardware the applicable statement of work, applicable law, and/or software not supplied by Wink (except the hardware terms and conditions of the CE Manufacturer Device), which infringement does not cover the Wink Engine standing alonethis Agreement, or (iii) a breach of Adial’s obligations, covenants, representations, or warranties under this Agreement. (c) Adial shall indemnify and hold harmless Contractor and its subsidiaries, parent company, commonly held entities, and their respective directors, officers, employees and agents (“Contractor Indemnitees”) from any trademarksClaim, trade names incurred or arising from Adial’s negligence, willful misconduct, or breach of this Agreement. Such indemnity shall not apply if Contractor fails to comply with the indemnification procedures set forth in Section 6, or to the extent that a Claim arises out of or results from (i) the negligence, gross negligence, or intentional misconduct on the part of any of the Contractor Indemnitees, (ii) a failure of any one of the Contractor Indemnitees to comply with the applicable statement of work, Adial’s instructions, applicable law, and/or the terms and conditions of this Agreement in the performance of the services, or (iii) a breach of Contractor’s obligations, covenants, representations, or warranties under this Agreement. (d) Each party’s agreement to indemnify, defend and hold the other brandings not supplied by Wink. As used in Subsection 11.3(i), "party harmless is conditioned on Wink's behalf' shall mean that Wink the indemnified party (i) providing written notice to the indemnifying party of any Claim for which it is seeking indemnification hereunder promptly after the indemnified party has given its written authorization for CE Manufacturer or a third knowledge of such claim; (ii) permitting the indemnifying party to perform assume full responsibility to investigate, prepare for and defend against any such modificationsClaim or demand; (iii) assisting the indemnifying party, at the indemnifying party’s reasonable expense, in the investigation of, preparation for and defense of any such Claim or demand; and (iv) not compromising or settling such Claim or demand without the indemnifying party’s written consent.

Warranty and Indemnity. 11.1. Each party 6.1 deCODE represents and warrants that neither it is the execution or performance by such party of this Agreement, nor the consummation of any transactions herein does or will violate any law, order, regulation or ruling applicable to such party or its efforts hereunder. In addition, Wink represents sole and warrants that (a) as exclusive owner of the Effective DateLicensed Patents, no action or proceeding alleging intellectual property infringement by the Wink Engine has been threatened or is proceeding against Wink (nor, insofar as Wink is aware, against any entity from which Wink has obtained any rights related to the Wink Engine), (b) that it has the right to grant the license the Intellectual Property Rights to Celera and its Affiliates under this Agreement, and it is not a party to any existing assignments, grants, licenses, encumbrances, obligations or agreements, written or oral, inconsistent with this Agreement, and that no Licensed Patent has been mortgaged, pledged, assigned for security purposes, encumbered or otherwise conveyed as collateral to secure any obligation. 6.2 Nothing in and this Agreement will be construed as: (a) a warranty or representation by either party as to the Wink Engine validity, enforceability or scope of any Licensed Patent; or (b) a warranty or representation by either party that anything made, used, sold, or otherwise disposed of pursuant to CE Manufacturer this Agreement is or will be free from infringement of patents or other intangible rights of third parties; or (c) an obligation by either party to furnish any manufacturing or technical information except as specifically provided herein; or (d) granting by implication, estoppel, or otherwise, any license or rights under patents, trade secrets, knowhow, copyrights, or other intangible rights of deCODE other than the Licensed Patents. 6.3 deCODE makes no representations, extends no warranties of any kind, either express or implied, and assumes no responsibilities whatever with respect to manufacture, use, sale or other disposition by Celera, its Affiliates or its distributors or its customers or transferees or their customers of products or methods incorporating or made by use of Licensed Patents licensed under this Agreement. 6.4 CELERA HEREBY WAIVES, RELEASES AND RENOUNCES ANY AND ALL WARRANTIES, GUARANTEES, OBLIGATIONS, LIABILITIES, RIGHTS AND REMEDIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE USEFULNESS OR FREEDOM FROM DEFECTS OF THE LICENSED PATENTS, INCLUDING, BUT NOT LIMITED TO, (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, (b) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN THE TRADE, and (c) the Licensed Engine Product does not infringe upon or violate any third party copyrightANY OBLIGATION, trade secretRIGHT, trademark or any U.S. patent right where such patent has been granted prior to the Effective Date. CE Manufacturer's exclusive remedyLIABILITY, CLAIM OR REMEDY FOR (1) LOSS OF USE, REVENUE OR PROFIT, OR ANY OTHER DAMAGES, (2) INFRINGEMENT OF THIRD PARTY INTANGIBLE PROPERTY RIGHTS, and Wink's sole liability, for a breach by Wink of the warranties of subsections (a), (b3) and (c) above shall be Wink's indemnity set forth in this Section 11INCIDENTAL OR CONSEQUENTIAL DAMAGES. 11.2. Wink agrees to defend, or at its option to settle, any claim, suit, action or proceeding brought against CE Manufacturer by a third party as a result of Wink's breach of its warranties under 12.l(b) and (c) above (an "Action"), and to pay any settlement or final judgment entered thereon against CE Manufacturer, subject to the limitations set forth hereafter. Wink shall be relieved of its obligations hereunder unless CE Manufacturer gives Wink (i) prompt written notice upon becoming aware of the existence of an Action, (ii) sole control over the defense or settlement of the Action and (iii) reasonable assistance in the defense or settlement thereof. If it is, or in the opinion of Wink may be, determined by competent authority that the Licensed Engine Product or any part thereof, or the sale, distribution or use thereof as permitted hereunder infringes any third party intellectual property rights warranted in section 11.1(c) or is enjoined, then Wink at its sole option and expense may (a) procure for CE Manufacturer the right under such third party intellectual property rights listed in section 11.1(c) to use, reproduce and distribute the Licensed Engine Product or such part thereof or such trademark; (b) replace the Licensed Engine Product or such part thereof or such trademark with other suitable software or trademark without material degradation in performance or functionality; (c) suitably modify the Licensed Engine Product or such part thereof or such trademark to avoid infringement without material degradation in performance or functionality; or (d) if none of the foregoing are commercially reasonably feasible, terminate this Agreement. 11.3. The foregoing indemnity shall not apply to an Action to the extent it arises out of (i) any modification of the Licensed Engine Product by a party other than Wink or on Wink's behalf, (ii) any combination of the Licensed Engine Product with hardware and/or software not supplied by Wink (except the hardware of the CE Manufacturer Device), which infringement does not cover the Wink Engine standing alone, or (iii) any trademarks, trade names or other brandings not supplied by Wink. As used in Subsection 11.3(i), "on Wink's behalf' shall mean that Wink has given its written authorization for CE Manufacturer or a third party to perform such modifications.