Indemnification by Licensor. 8.1 Licensor shall defend, indemnify, and hold Licensee and its Affiliates (other than Licensor), and their respective employees, officers, directors, agents and representatives (collectively, the “Licensee Indemnified Parties”), harmless from and against any and all losses, costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of any claim by any third party against any Licensee Indemnified Party that any use of, or access to, the Licensed Database IP, Licensed Software or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under or contemplated by these Terms infringes or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights of any third party; provided that Licensee gives Licensor (i) prompt written notice of such claim; (ii) reasonable authority to control and direct the defense and settlement of such claim; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s expense, in connection with such defense or settlement. Notwithstanding the foregoing, Licensor shall not settle any third-party claim against any Licensee Indemnified Party (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in respect of any actual wrongdoing by such Licensee Indemnified Party), or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consent to such settlement. In any action for which Licensor provides defense on behalf of any Licensee Indemnified Party, such Licensee Indemnified Party may participate in such defense at its own expense by counsel of its choice. 8.2 Notwithstanding Section 8.1, Licensor shall have no obligation or liability to the extent that the alleged infringement is caused by (i) the combination, operation, or use of the Licensed Database IP, Licensed Software or Licensed Manager Usage with products, services, information, materials, technologies, business methods or processes not furnished by Licensor; (ii) modifications to the Licensed Database IP, Licensed Software or Licensed Manager Usage, which modifications are not made by Licensor or its agents; (iii) failure to use updates to the Licensed Database IP, Licensed Software or Website Content provided by Licensor, provided that updates to the Licensed Database IP and Licensed Software are in all material respects equivalent to, and may be readily substituted for, the Software being updated; and provided further that Licensee shall be afforded a reasonable amount of time to implement any update; or (iv) use of the Licensed Database IP or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”). 8.3 Upon the occurrence of any claim for which indemnity is or may be due under this Section 8, or in the event that Licensor reasonably believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Licensed Database IP, Licensed Software or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter the functionality or operations of the Licensed Database IP or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) if the foregoing options in clause (i) and (ii) are not reasonably available, terminate the license to the affected Licensed Database IP or Licensed Software or cease use of the affected Licensed Manager Usage. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and Licensee’s sole remedy for any actual or alleged infringement or misappropriation referred to in Section 8.1.
Appears in 4 contracts
Sources: Management Services Agreement (LunaDNA, LLC), Management Services Agreement (LunaDNA, LLC), Management Services Agreement (LunaTrust LLC)
Indemnification by Licensor. 8.1 Licensor shall defend, indemnify, indemnify and hold Licensee harmless Mercury Interactive and its all applicable Affiliates (other than Licensor)and Mercury Interactive Alliance Partners, and their respective employees, officers, directors, agents employees, End Users, agents, successors and representatives (collectivelyassigns, the “Licensee Indemnified Parties”), harmless from and against any and all lossesactual, damages, liabilities, settlements, costs and reasonable expenses (including reasonable attorneys’ fees)legal expenses and the expenses of other professionals) as incurred, damages, and liabilities resulting from or arising out of any claim by claim, demand, or cause of action which alleges that the Licensor Software, Documentation, or Licensor QA Tools or any part thereof provided to Mercury Interactive hereunder as licensed or sublicensed hereunder infringes on of any patent or any copyright or misappropriation of any trade secret, or infringes or misappropriates any other Intellectual Property right of a third party against any Licensee Indemnified Party that any use of, (“Claim”). Mercury Interactive or access to, the Licensed Database IP, Licensed Software or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under or contemplated by these Terms infringes or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights of any third party; provided that Licensee gives its Affiliate will provide Licensor (i) with prompt written notice of such claim; (ii) reasonable authority the filed Claim and permit Licensor to control and direct the defense and settlement defense, settlement, adjustment or compromise of such claimClaim; provided, however, that if the Claim is one of multiple claims in a lawsuit against Mercury Interactive and/or its Affiliates, Mercury Interactive may, at its sole discretion, elect to participate in control the defense, settlement, adjustment or compromise of the Claim against Mercury Interactive, in which event: (a) the parties agrees to cooperate together and provide any assistance as may be reasonably necessary for the defense, settlement, adjustment or compromise of any such Claim, and (iiib) such information and assistance as Licensor may reasonably request, at Licensor’s expense, in connection with such defense or settlement. Notwithstanding the foregoing, Licensor shall not settle any third-party claim against any Licensee Indemnified Party (A) if such settlement requires such Licensee Indemnified Party be relieved of its indemnification and hold harmless obligations under this Section 12, whereby Licensor remains responsible for its proportionate share of the damages, liabilities, settlements, costs and expenses relating to admit the Claim and attributable to any wrongdoing (other than in respect of any actual wrongdoing by such Licensee Indemnified Party), or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consent to such settlementLicensor. In any action for which Licensor provides defense on behalf of any Licensee Indemnified Party, such Licensee Indemnified Party Mercury Interactive may participate in such defense employ counsel at its own expense by to assist it with respect to the Claim; provided, however, that if such counsel is necessary because of a conflict of interest of either Licensor or its choice.
8.2 Notwithstanding Section 8.1counsel or because Licensor does not assume control, Licensor will bear the expense of such counsel. Mercury Interactive shall have no obligation or liability authority to the extent that the alleged infringement is caused by (i) the combination, operation, or use settle any Claim on behalf of the Licensed Database IP, Licensed Software or Licensed Manager Usage with products, services, information, materials, technologies, business methods or processes not furnished by Licensor; (ii) modifications to the Licensed Database IP, Licensed Software or Licensed Manager Usage, which modifications are not made by Licensor or its agents; (iii) failure to use updates to the Licensed Database IP, Licensed Software or Website Content provided by Licensor, provided that updates to the Licensed Database IP and Licensed Software are in all material respects equivalent to, and may be readily substituted for, the Software being updated; and provided further that Licensee shall be afforded a reasonable amount of time to implement any update; or (iv) use of the Licensed Database IP or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”).
8.3 Upon the occurrence of any claim for which indemnity is or may be due under this Section 8, or in the event that Licensor reasonably believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Licensed Database IP, Licensed Software or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter the functionality or operations of the Licensed Database IP or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) if the foregoing options in clause (i) and (ii) are not reasonably available, terminate the license to the affected Licensed Database IP or Licensed Software or cease use of the affected Licensed Manager Usage. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and Licensee’s sole remedy for any actual or alleged infringement or misappropriation referred to in Section 8.1.
Appears in 3 contracts
Sources: Oem Software License Agreement (Motive Inc), Oem Software License Agreement (Motive Inc), Oem Software License Agreement (Motive Inc)
Indemnification by Licensor. 8.1 Licensor shall defend, indemnify, indemnify and hold harmless Licensee and its Affiliates representatives (other than Licensor)with respect to a party, and their respective employees, its officers, directors, agents equity owners, employees and other representatives and its parents, subsidiaries and affiliates and their officers, directors, equity owners, employees and other representatives (collectively, the “Licensee Indemnified PartiesRepresentatives”), harmless ) from and against any and all lossesclaims, damages, liabilities, costs and reasonable expenses (expenses, including reasonable attorneys’ feesoutside counsel fees (“Damages”), damages, and liabilities arising out from a third party claim (or threatened claim) (i) arising from or relating to the breach by Licensor of any claim by of its representations or warranties or any third party against any Licensee Indemnified Party material provisions of this Agreement or (ii) that any use ofof the Included Programs or exhibition thereof in strict accordance with this Agreement, under the law of the Territory, infringe upon the trade name, trademark, copyright, music synchronization, literary or access to, the Licensed Database IP, Licensed Software dramatic right or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under or contemplated by these Terms infringes or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights right of privacy of any third partyclaimant (not including public performance/making available, mechanical/reproduction/copying and other rights which are covered under Section 11 of this Schedule) or constitutes a libel or slander of such claimant; provided that Licensee gives shall promptly notify Licensor (i) prompt written notice of any such claim; (ii) reasonable authority to control and direct the defense and settlement claim or litigation of such claim; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s expense, in connection with such defense or settlementwhich it becomes aware. Notwithstanding the foregoing, the failure to provide such prompt notice shall diminish Licensor’s indemnification obligations only to the extent Licensor is actually prejudiced by such failure. In addition, Licensor shall not settle be required to indemnify Licensee or its Representatives for any third-party claim against any claims resulting from Licensee Indemnified Party (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (exhibiting an Included Programs or using Advertising Materials in a form other than in respect of any actual wrongdoing by such Licensee Indemnified Party), or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consent to such settlement. In any action for which Licensor provides defense on behalf of any Licensee Indemnified Party, such Licensee Indemnified Party may participate in such defense at its own expense by counsel of its choice.
8.2 Notwithstanding Section 8.1, Licensor shall have no obligation or liability to the extent that the alleged infringement is caused by (i) the combination, operation, or use of the Licensed Database IP, Licensed Software or Licensed Manager Usage with products, services, information, materials, technologies, business methods or processes not furnished by Licensor; (ii) modifications to the Licensed Database IP, Licensed Software or Licensed Manager Usage, which modifications are not made by Licensor or its agents; (iii) failure to use updates to the Licensed Database IP, Licensed Software or Website Content provided as delivered by Licensor, provided that updates or due to the Licensed Database IP and Licensed Software are in all material respects equivalent toLicensee’s editing or modification of any Included Programs or Advertising Materials, and may be readily substituted for, the Software being updated; and provided further that Licensee shall be afforded or due to Licensee’s authorization of a reasonable amount of time third party to implement do any update; or (iv) use of the Licensed Database IP or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”)foregoing.
8.3 Upon the occurrence of any claim for which indemnity is or may be due under this Section 8, or in the event that Licensor reasonably believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Licensed Database IP, Licensed Software or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter the functionality or operations of the Licensed Database IP or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) if the foregoing options in clause (i) and (ii) are not reasonably available, terminate the license to the affected Licensed Database IP or Licensed Software or cease use of the affected Licensed Manager Usage. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and Licensee’s sole remedy for any actual or alleged infringement or misappropriation referred to in Section 8.1.
Appears in 3 contracts
Sources: License Agreement, Dhe License Agreement, License Agreement
Indemnification by Licensor. 8.1 Licensor shall defend, ("Indemnitor") will indemnify, defend and hold Licensee and its Affiliates (other than Licensor), and their respective employees, officers, directors, agents and representatives (collectively, the “Licensee Indemnified Parties”), harmless from and against any and all claims, losses, costs costs, liabilities and reasonable expenses (including reasonable attorneys’ ' fees), damagesarising as a result of or in connection with Licensor's alleged infringement of any intellectual property rights arising from Licensor's products, and liabilities arising out or for breach of any representations or warranties provided: (i) Licensee promptly gives written notice of any claim by any third party against any Licensee Indemnified Party that any use of, or access to, the Licensed Database IP, Licensed Software or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under or contemplated by these Terms infringes or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights of any third party; provided that Licensee gives Licensor (i) prompt written notice of such claimto Licensor; (ii) reasonable authority to control and direct at Licensor's expense, the Licensee provides any assistance that Licensor may reasonably request for the defense and settlement of such the claim; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s expense, in connection with such has the right to control the defense or settlement. Notwithstanding settlement of the foregoingclaim, Licensor provided however, that the Licensee shall have the right to participate in, but not settle control, any third-party claim against any Licensee Indemnified Party (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in respect of any actual wrongdoing by such Licensee Indemnified Party), or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consent to such settlement. In any action litigation for which Licensor provides defense on behalf indemnification is sought with counsel of any Licensee Indemnified Partyits own choosing, such Licensee Indemnified Party may participate in such defense at its own expense by counsel expense. Additionally, if an injunction or order issues restricting the use or distribution of its choice.
8.2 Notwithstanding Section 8.1any of the Licensor's Products, or if Licensor determines that Licensor's Products are likely to become the subject of a claim of infringement or violation of a patent, copyright, trade secret or other intellectual or proprietary right of any third party, Licensor shall have no obligation or liability to the extent that the alleged infringement is caused by (i) the combination, operation, or use of the Licensed Database IP, Licensed Software or Licensed Manager Usage with products, services, information, materials, technologies, business methods or processes not furnished by Licensor; (ii) modifications to the Licensed Database IP, Licensed Software or Licensed Manager Usage, which modifications are not made by Licensor or its agents; (iii) failure to use updates to the Licensed Database IP, Licensed Software or Website Content provided by Licensor, provided that updates to the Licensed Database IP and Licensed Software are in all material respects equivalent to, and may be readily substituted for, the Software being updated; and provided further that Licensee shall be afforded a reasonable amount of time to implement any update; or (iv) use of the Licensed Database IP or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”).
8.3 Upon the occurrence of any claim for which indemnity is or may be due under this Section 8, or in the event that Licensor reasonably believes that such a claim is likely, Licensor mayshall, at its option and expense: (ia) appropriately procure the right for licensee to continue using, reproducing, and distributing Licensor's Products pursuant to this agreement; or (b) replace or modify the Licensed Database IP, Licensed Software or Licensed Manager Usage Licensor's products so that they become non-infringing (noninfringing, provided such modifications do modification or replacement does not materially alter or affect the functionality specifications for or operations the use or operation of the Licensed Database IP or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost to the Licensor's Products. UNDER NO CIRCUMSTANCE WILL LICENSOR BE LIABLE TO INDEMNIFY LICENSEE UNDER THIS PROVISION FOR ANY AMOUNT GREATER THAN THE FEES PAID UNDER THIS AGREEMENT BY LICENSEE. Licensor's Initial _______ Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) if the foregoing options in clause (i) and (ii) are not reasonably available, terminate the license to the affected Licensed Database IP or Licensed Software or cease use of the affected Licensed Manager Usage. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and Licensee’s sole remedy for any actual or alleged infringement or misappropriation referred to in Section 8.1.'s Initial ______
Appears in 3 contracts
Sources: Technology License Agreement (Wintegra Inc), Technology License Agreement (Wintegra Inc), Technology License Agreement (Wintegra Inc)
Indemnification by Licensor. 8.1 The Licensor shall agrees to defend, indemnify, indemnify and hold the Licensee and its Affiliates (other than Licensor), and their respective employees, officers, directors, agents and representatives (collectively, the “Licensee Indemnified Parties”), employees harmless from and against any and all lossesclaims, costs demands, liabilities, actions, judgments, and reasonable expenses (expenses, including reasonable attorneys’ ' fees), damages, and liabilities arising out of or related to:
(a) any claim by that the Licensed Product directly infringes any third party against U.S. patent issued as of the date of this Agreement or any Licensee Indemnified Party that any use ofcopyright, trade secret or trademark, or access to, the Licensed Database IP, Licensed Software or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under or contemplated by these Terms infringes or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property proprietary rights of any third partyparty ("IP Claim"); provided that Licensee gives Licensor that:
(i) prompt written notice the Licensee notifies the Licensor promptly in writing of any such claim; ,
(ii) reasonable authority to the Licensor has the sole control and direct of the defense and all related settlement of such claim; and negotiations, and
(iii) such the Licensee provides the Licensor with all reasonably necessary assistance, information and assistance as Licensor may reasonably requestauthority to perform the foregoing at the Licensor's expense; and
(b) any material breach or alleged material breach of any of the Licensor's representations and warranties or covenants hereunder, at Licensor’s expenseprovided, in connection with such defense or settlement. Notwithstanding the foregoinghowever, Licensor that this Section 3.5 shall not settle any third-party claim against any Licensee Indemnified Party (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in respect of any actual wrongdoing by such Licensee Indemnified Party), or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consent to such settlement. In any action for which Licensor provides defense on behalf of any Licensee Indemnified Party, such Licensee Indemnified Party may participate in such defense at its own expense by counsel of its choice.
8.2 Notwithstanding Section 8.1, Licensor shall have no obligation or liability apply to the extent that the alleged infringement is caused by (i) arises out of or relates to the Licensee's or Sublicensee's unauthorized combination, operation, operation or use of Licensed Product with software that does not originate from the Licensed Database IPLicensor, Licensed Software or Licensed Manager Usage with products, services, information, materials, technologies, business methods or processes not furnished by Licensor; (ii) modifications to the Licensed Database IP, Licensed Software or Licensed Manager UsageCustom Application not developed by or on behalf of the Licensor and not authorized by the Licensor, which modifications are not made or if the alleged infringement arises out of the use of technology, business methods, trade secrets, know-how, or copyrighted material provided by Licensee to Licensor and used or incorporated by Licensor or its agents; (iii) failure to use updates to the Licensed Database IP, Licensed Software or Website Content provided by Licensor, provided that updates to the Licensed Database IP and Licensed Software are in all material respects equivalent to, and may be readily substituted for, the Software being updated; and provided further that Licensee shall be afforded a reasonable amount of time to implement any update; or (iv) use of the Licensed Database IP or Licensed Software except Custom Application in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee Licensee's instructions (circumstances under the foregoing clauses (i) - (iva "Non-Indemnified IP Claim"), collectively, “Licensee Indemnity Responsibilities”).
8.3 Upon the occurrence of any claim for which indemnity is or may be due under this Section 8, or in the event that Licensor reasonably believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Licensed Database IP, Licensed Software or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter the functionality or operations of the Licensed Database IP or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) even if the foregoing options in clause (i) and (ii) are Licensor has been made aware of such combination, operation or use or of such modifications. For the avoidance of doubt, an IP Claim does not reasonably available, terminate the license to the affected Licensed Database include a Non-Indemnified IP or Licensed Software or cease use of the affected Licensed Manager Usage. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and Licensee’s sole remedy for any actual or alleged infringement or misappropriation referred to in Section 8.1Claim.
Appears in 2 contracts
Sources: Joint Venture and Shareholders' Agreement (Entrade Inc), Master Software License Agreement (Entrade Inc)
Indemnification by Licensor. 8.1 Licensor shall defend, indemnify, defend and hold harmless Licensee and its Affiliates the Company Affiliates, the representatives and agents thereof, and each of the successors and assigns of any of the foregoing (but excluding for the avoidance of doubt any Broker Affiliate or Franchisee or any other sublicensee of Licensee other than Licensor), and their respective employees, officers, directors, agents and representatives a Company Affiliate) (collectively, the “Licensee Indemnified Parties”), harmless from and against any and all lossesDamages suffered by any of the Licensee Indemnified Parties resulting from, costs and reasonable expenses arising out of, relating to or incurred with respect to (without duplication of any amounts paid pursuant to Section 7.2 of the Purchase Agreement):
(i) any breach by Licensor of this Agreement (including reasonable attorneys’ feesin respect of any representation or warranty of Licensor as of the Effective Date, or with respect to the exercise of the Option with respect to any Option Territory, as of the date of license to the extent applicable);
(ii) any third-party claim, damagessuit, and liabilities demand, investigation, proceeding, arbitration or litigation against any Licensee Indemnified Party that the use of any Registered ▇▇▇▇ for the Applicable Registered Services in the Applicable Registered Country violates or infringes the trademark, copyright, right of publicity or privacy or other intellectual property rights of such third party except to the extent resulting from, arising out of, relating to or incurred with respect to (x) any use of any claim Licensed ▇▇▇▇ by any Person in breach of this Agreement or any sublicense, (y) any combination of any Licensed ▇▇▇▇ with any other ▇▇▇▇ or (z) the provision of any service or product other than the Applicable Registered Services in the Applicable Registered Country under the Registered ▇▇▇▇ corresponding thereto; and
(iii) any claim, suit, demand, investigation, proceeding, arbitration or litigation by a third party against any Licensee Indemnified Party that any use resulting from, arising out of, relating to or access toincurred with respect to the business, the Licensed Database IPoperations, Licensed Software conduct, acts or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under or contemplated by these Terms infringes or misappropriates, as applicableomissions of Licensor, any trademarksLicensor Affiliate or any of their agents, patentSubsidiaries, copyrightsAffiliates, trade secrets franchisees or other intellectual property rights of any third party; provided that Licensee gives Licensor (i) prompt written notice of such claim; (ii) reasonable authority to control and direct sublicensees conducting business under the defense and settlement of such claim; and (iii) such information and assistance as Licensor may reasonably request, at LicensorSotheby’s expense, ▇▇▇▇ in connection with such defense or settlement. Notwithstanding any service other than the foregoing, Licensor Authorized Services (which shall not settle any third-party claim against include the business, operations, conduct, acts or omissions of any Licensee Indemnified Party or any direct or indirect sublicensee, franchisee, Affiliate or agent of Licensee), and any matter relating thereto, including (Ax) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in respect failure of any actual wrongdoing by such Licensee Indemnified Party), or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consent Person to such settlement. In any action for which Licensor provides defense on behalf of any Licensee Indemnified Party, such Licensee Indemnified Party may participate in such defense at its own expense by counsel of its choice.
8.2 Notwithstanding Section 8.1, Licensor shall have no obligation or liability to the extent that the alleged infringement is caused by (i) the combination, operation, or use of the Licensed Database IP, Licensed Software or Licensed Manager Usage with products, services, information, materials, technologies, business methods or processes not furnished by Licensor; (ii) modifications to the Licensed Database IP, Licensed Software or Licensed Manager Usage, which modifications are not made by Licensor or its agents; (iii) failure to use updates to the Licensed Database IP, Licensed Software or Website Content provided by Licensor, provided that updates to the Licensed Database IP and Licensed Software are in all material respects equivalent to, and may be readily substituted for, the Software being updated; and provided further that Licensee shall be afforded a reasonable amount of time to implement any update; or (iv) use of the Licensed Database IP or Licensed Software except in accordance comply with any applicable user documentation Law and (y) acts or specifications which have been specifically notified omissions of any such Person constituting fraud, tortious conduct, unfair trade practices, negligence or willful misconduct, or resulting in damage or destruction of property, injury, death, loss or other damages of any kind, except with respect to Licensee (circumstances under all of the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”).
8.3 Upon the occurrence of any claim for those Damages for which indemnity is or may be due under this Section 8, or in the event that Licensee has an obligation to indemnify a Licensor reasonably believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Licensed Database IP, Licensed Software or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter the functionality or operations of the Licensed Database IP or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost Indemnified Party pursuant to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) if the foregoing options in terms of clause (i) and of Section 13.1 (ii) are not reasonably available, terminate the license without giving effect to the affected Licensed Database IP or Licensed Software or cease use of the affected Licensed Manager Usage. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and Licensee’s sole remedy for any actual or alleged infringement or misappropriation referred to in Section 8.113.3).
Appears in 2 contracts
Sources: Trademark License Agreement, Trademark License Agreement (Realogy Corp)
Indemnification by Licensor. 8.1 Licensor shall defend, (i) indemnify, hold harmless and hold Licensee and defend (or at its Affiliates (other than Licensor)option settle) any claim or suit against Pumatech, and or their respective employees, officers, directors, agents agents, and representatives employees (collectively, the “Licensee Indemnified Parties”)) arising from or related to any alleged infringement of any Intellectual Property Right by the Programs or use thereof, harmless from and (ii) pay any judgment entered against any Indemnified Party on such claim when due, or any settlement thereof. The following procedures shall apply to any indemnified claim: (a) Licensor shall have sole control of the defense and/or settlement (b) the Indemnified Party must notify Licensor promptly in writing of such claim or suit and give Licensor all losses, costs and reasonable expenses (including reasonable attorneys’ fees), damagesinformation known to it relating thereto, and liabilities arising out (c) the Indemnified Party must reasonably cooperate with Licensor in the settlement and/or defense. The Indemnified Party shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Licensor. If all or any part of the Programs are, or in the opinion of Licensor may become, the subject of any claim by or suit for infringement of any third party against Intellectual Property Right, Licensor may, and in the event of any Licensee Indemnified Party adjudication that any Program or any part thereof does infringe or if the use ofof a Program or any part thereof is enjoined Licensor shall, at its option and expense, do one of the following: (1) procure for the Indemnified Parties the right to use and distribute the Program or access to, the Licensed Database IP, Licensed Software or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under or contemplated by these Terms infringes or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights of any third party; provided that Licensee gives Licensor (i) prompt written notice of such claimaffected part thereof; (ii2) reasonable authority to control and direct replace the defense and settlement of such claimProgram or affected part with non-infringing programs; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s expense, in connection with such defense or settlement. Notwithstanding the foregoing, Licensor shall not settle any third-party claim against any Licensee Indemnified Party (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in respect of any actual wrongdoing by such Licensee Indemnified Party), or (B3) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, modify the Program or (ii) such Licensee Indemnified Party provides its prior written consent affected part to such settlementmake it non-infringing. In any action for which Licensor provides defense on behalf of any Licensee Indemnified Party, such Licensee Indemnified Party may participate in such defense at its own expense by counsel of its choice.
8.2 Notwithstanding Section 8.1, Licensor shall will have no obligation or liability obligations under this Section to the extent that the alleged infringement a claim described therein is caused by based upon (ia) the combination, operation, or use of the Licensed Database IP, Licensed Software or Licensed Manager Usage Program with products, services, information, materials, technologies, business methods or processes software that was not furnished by Licensor; (ii) modifications to the Licensed Database IP, Licensed Software or Licensed Manager Usage, which modifications are not made by Licensor or its agents; (iii) failure to use updates to the Licensed Database IP, Licensed Software or Website Content provided by Licensor, provided that updates to if such claim would have been avoided in the Licensed Database IP and Licensed Software are absence of such combination, operation;(b) the use of a Program in all material respects equivalent to, and may be readily substituted for, the Software being updated; and provided further that Licensee shall be afforded a reasonable amount of time to implement any updatemanner not authorized by this Agreement; or (ivc) use of other than the Licensed Database IP or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”).
8.3 Upon the occurrence of any claim for which indemnity is or may be due under this Section 8, or in the event that Licensor reasonably believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Licensed Database IP, Licensed Software or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter the functionality or operations most recent version of the Licensed Database IP or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) Programs if the foregoing options in clause (i) and (ii) are not reasonably available, terminate the license to the affected Licensed Database IP or Licensed Software or cease use of the affected Licensed Manager Usage. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and Licensee’s sole remedy for any actual or alleged infringement or misappropriation referred to in Section 8.1a more recent version would avoid such infringement.
Appears in 2 contracts
Sources: Software License and Distribution Agreement (Pumatech Inc), Software License and Distribution Agreement (Pumatech Inc)
Indemnification by Licensor. 8.1 Licensor shall defend, indemnify, and hold harmless the Licensee and its Affiliates the affiliates and Representatives of Licensee (other than Licensor)each, and their respective employeesa “Licensee Indemnified Party” and, officers, directors, agents and representatives (collectively, the “Licensee Indemnified Parties”), harmless ) from and against any and all lossesLosses asserted against, costs and reasonable expenses (including reasonable attorneys’ fees)incurred, damages, and liabilities arising out of any claim sustained or suffered by any third party against any Licensee Indemnified Party that any use of, or access to, the Licensed Database IP, Licensed Software or Licensed Manager Usage by such a Licensee Indemnified Party as expressly authorized under a result of, arising out of, or contemplated relating to, a claim that the Platform as licensed and delivered to Licensee by these Terms Licensor infringes or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights misappropriates the Intellectual Property of any third party; provided that Licensee gives Licensor (i) prompt written notice of such claim; (ii) reasonable authority to control and direct the defense and settlement of such claim; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s expense, in connection with such defense or settlement. Notwithstanding the foregoing, Licensor shall not settle any third-party claim against any Licensee Indemnified Party existing as of the Effective Date (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in respect of any actual wrongdoing by such Licensee Indemnified Partyeach an “Infringement Claim”); provided, or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consent to such settlement. In any action for which Licensor provides defense on behalf of any Licensee Indemnified Party, such Licensee Indemnified Party may participate in such defense at its own expense by counsel of its choice.
8.2 Notwithstanding Section 8.1, however that Licensor shall have no obligation to Licensee under this Agreement with respect to any Infringement Claim arising: (a) twenty four (24) months after the Effective Date; or liability (b) to the extent that the alleged infringement is caused by arising from: (i) Any Licensee Improvements or any modifications to the combination, operationPlatform made by, or use of the Licensed Database IPon behalf of, Licensed Software Licensee or Licensed Manager Usage with products, services, information, materials, technologies, business methods or processes not furnished by Licensorotherwise at Licensee’s request; (ii) modifications to the Licensed Database IP, Licensed Software or Licensed Manager Usage, which modifications are not made by Licensor or its agentsLicensee’s breach of this Agreement; (iii) failure Licensee’s or its Representative or sublicensees’ use of the Platform or any Licensor Intellectual Property in any manner in violation of this Agreement or associated Documentation; and (iv) the combination of the Platform and Licensor Intellectual Property with any Licensee or third-party software or other Intellectual Property. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at Licensee’s option), do one of the following to use updates mitigate the Losses relating to the Licensed Database IPInfringement Claim: (1) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Property; (2) replace or modify the impacted portions of the Platform or Licensor Intellectual Property so that it becomes non-infringing without substantially compromising functions, Licensed Software features, or Website Content provided by Licensorperformance of the Platform or the Licensor Intellectual Property; or (3) if Licensor is unable at commercially reasonable effort or expense to make such modifications, provided that updates to the Licensed Database IP and Licensed Software are in all material respects equivalent to, and may be readily substituted for, the Software being updated; and provided further that then Licensee shall be afforded entitled to terminate this Agreement without further liability to Licensor or elect to continue this Agreement and without the benefit of indemnification as a reasonable amount result of time to implement any update; or such breach. This Section 14.1 (ivIndemnification by Licensor) use of the Licensed Database IP or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”).
8.3 Upon the occurrence of any claim for which indemnity is or may be due under this Section 8, or in the event that Licensor reasonably believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Licensed Database IP, Licensed Software or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter the functionality or operations of the Licensed Database IP or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) if the foregoing options in clause (i) and (ii) are not reasonably available, terminate the license to the affected Licensed Database IP or Licensed Software or cease use of the affected Licensed Manager Usage. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and Licensee’s sole and exclusive remedy for any actual claim that the Platform or alleged infringement any Licensor Intellectual Property infringes or misappropriation referred to in Section 8.1misappropriates the Intellectual Property of any third party.
Appears in 1 contract
Sources: Exclusive Platform License and Services Agreement (Strategic Acquisitions Inc /Nv/)
Indemnification by Licensor. 8.1 Licensor shall agrees to indemnity, defend, indemnify, and hold Licensee and (including its Affiliates (other than Licensor), and their respective employees, officers, directors, agents shareholders, employees, trustees, agents, lab directors, technologists and representatives (collectively, the “Licensee Indemnified Parties”), other staff or representatives) harmless from and against any and all lossesLosses, costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of any claim by any third party against any Licensee Indemnified Party that any use of, or access to, the Licensed Database IP, Licensed Software or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under or contemplated by these Terms infringes or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights of any third party; provided that Licensee gives Licensor (i) prompt written notice any breach by Licensor of such claim; its representations, warranties and obligations under this Agreement, (ii) reasonable authority to control and direct the defense and settlement of such claim; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s expense, in connection with such defense or settlement. Notwithstanding the foregoing, Licensor shall not settle any third-claim brought by a third party claim against any Licensee Indemnified Party (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in respect of any actual wrongdoing by such Licensee Indemnified Party), or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consent to such settlement. In any action for which Licensor provides defense on behalf of any Licensee Indemnified Party, such Licensee Indemnified Party may participate in such defense at its own expense by counsel of its choice.
8.2 Notwithstanding Section 8.1, Licensor shall have no obligation or liability to the extent that It alleges damages resulting from a problem or defect with the alleged infringement is caused by (i) the combinationBJONIK Intellectual Property, operation, or use of the Licensed Database IP, Licensed Software or Licensed Manager Usage with products, services, information, materials, technologies, business methods or processes not furnished by Licensor; (ii) modifications to the Licensed Database IP, Licensed Software or Licensed Manager Usage, which modifications are not made by Licensor or its agents; (iii) failure to use updates to the Licensed Database IP, Licensed Software or Website Content provided by Licensor, provided that updates to the Licensed Database IP and Licensed Software are in all material respects equivalent to, and may be readily substituted for, the Software being updated; and provided further that Licensee shall be afforded a reasonable amount of time to implement any update; or (iv) use of the Licensed Database IP or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”).
8.3 Upon the occurrence of any claim for which indemnity is or may be due under this Section 8, or in the event that Licensor reasonably believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Licensed Database IP, Licensed Software or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter the functionality or operations of the Licensed Database IP or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) if the foregoing options in clause (i) and (ii) are not reasonably available, terminate the license any claim brought by a third party to the affected Licensed Database IP extent it alleges that and BIONIK Intellectual Property infringes any patent, copyright, or Licensed Software trademark, or cease use misappropriates any trade secret, of that third party. Licensee will promptly notify Licensor of any threatened or pending claims, demands, causes of action, losses, damages, penalties, fines, expenses or judgments that could give rise to an obligation to indemnify under this Section, Licensor will control the affected Licensed Manager Usagedefense of any action in which Licensee is indemnified under this Agreement, including the right to select counsel, and to settle any claim; provided that, without the written consent of Licensee (which will not be unreasonably withheld or delayed), Licensor will not agree to settle any claim against Licensee to the extent such settlement would create any obligation or action on the part of Licensee other than the payment of money (subject to indemnification) or would have a material, adverse effect on Licensee. The obligations set forth Licensee will cooperate as reasonably requested (at the expense of Licensor) in this Section 8 shall constitute Licensor’s entire liability and Licensee’s sole remedy for the defense of any actual or alleged infringement or misappropriation referred to in Section 8.1such action.
Appears in 1 contract
Indemnification by Licensor. 8.1 Licensor shall defend, agrees to indemnify, defend and hold harmless Licensee and its Affiliates (other than Licensor), and their respective employeesdirectors, officers, directorsemployees, agents affiliates and representatives (collectively, the “Licensee Indemnified Parties”), harmless assigns from and against any and all losses, liabilities, damages, deficiencies, costs and reasonable or expenses (including interest, penalties and reasonable attorneys’ fees)' fees and disbursements) ("Loss") based upon, damagesarising out of, or otherwise due to:
8.1.1 Any breach of any material representation, warranty, covenant or agreement of Licensor contained in this Agreement or in any document or other writing delivered pursuant to this Agreement; and
8.1.2 Facts or circumstances existing on or prior to the License Period which give rise to claims by any third parties against the Licensed Assets, including (but not limited to) any claims arising with respect to use of the Licensed Assets in any manner.
8.2 Licensee agrees to indemnify, defend and hold harmless Licensor and its directors, officers, employees, affiliates, and liabilities assigns from and against any Loss based upon, or arising out of or otherwise due to any claim by any negligent use of the Licensed Assets in a library of the Licensee and a third party against any Licensee infringement claim resulting from Licensee's use of products other than the Licensed Assets.
8.3 Promptly after receipt by an Indemnified Party of notice of any demand, claim or circumstances which, with the lapse or time, would give rise to a claim or the commencement (or threatened commencement) of any action, proceeding or investigation (an "Asserted Liability") that any use of, or access tomay result in a Loss, the Licensed Database IP, Licensed Software or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under shall give notice thereof (the "Claims Notice") to the Indemnifying Party. The Claims Notice shall describe the Asserted Liability in reasonable detail, and shall indicate the amount (if stated) of the Loss that has been or contemplated may be suffered by these Terms infringes or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights of any third party; provided that Licensee gives Licensor (i) prompt written notice of such claim; (ii) reasonable authority to control and direct the defense and settlement of such claim; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s expense, in connection with such defense or settlement. Notwithstanding the foregoing, Licensor shall not settle any third-party claim against any Licensee Indemnified Party (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in respect of any actual wrongdoing by such Licensee Indemnified Party), or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consent to such settlement. In any action for which Licensor provides defense on behalf of any Licensee Indemnified Party, such Licensee Indemnified .
8.4 The Indemnifying Party may participate in such defense elect to compromise or defend, at its own expense and by counsel its own counsel, any Asserted Liability. If the Indemnifying Party elects to compromise or defend such Asserted Liability, it shall, within thirty (30) days (or sooner, if the nature of the Asserted Liability so requires), notify the Indemnified Party of its choice.
8.2 Notwithstanding Section 8.1intent to do so, Licensor and the Indemnified Party shall have no obligation or liability to cooperate, at the extent that expense of the alleged infringement is caused by (i) Indemnifying Party, in the combination, operationcompromise of, or use of the Licensed Database IPdefense against, Licensed Software or Licensed Manager Usage with products, services, information, materials, technologies, business methods or processes not furnished by Licensor; (ii) modifications such Asserted Liability. The Indemnified Party may elect to the Licensed Database IP, Licensed Software or Licensed Manager Usage, which modifications are not made by Licensor or its agents; (iii) failure to use updates to the Licensed Database IP, Licensed Software or Website Content provided by Licensor, provided that updates to the Licensed Database IP and Licensed Software are in all material respects equivalent to, and may be readily substituted for, the Software being updated; and provided further that Licensee shall be afforded a reasonable amount of time to implement any update; or (iv) use of the Licensed Database IP or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”).
8.3 Upon the occurrence of any claim for which indemnity is or may be due under this Section 8, or in the event that Licensor reasonably believes that such a claim is likely, Licensor mayparticipate, at its option (i) appropriately modify own expense, in the Licensed Database IPdefense of such Asserted Liability. If the Indemnifying Party elects not to compromise or defend the Asserted Liability, Licensed Software fails to notify the Indemnified Party of its election as herein provided, contest its obligations to indemnify under this Agreement, or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter at any time fails to pursue in good faith the functionality or operations resolution of any Asserted Liability, in the sole opinion of the Licensed Database IP or Licensed Software in any material adverse respect)Indemnified Party, or substitute functionally equivalent software or services then the Indemnified Party may, upon thirty (at no cost 30) days' notice to the LicenseeIndemnifying Party, including for pay, compromise or defend any required customizations); (ii) obtain a proper license such Asserted Liability, which such amount shall then be deducted from and credited to any royalties payable to the applicable third-party intellectual property rights; or (iii) if Indemnifying Party pursuant to Section 2 hereof. If the foregoing options in clause (i) and (ii) are not reasonably availableIndemnifying Party chooses to defend any claim, terminate the license Indemnified Party shall make available to the affected Licensed Database IP Indemnifying Party any books, records or Licensed Software other documents or cease use of the affected Licensed Manager Usage. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and Licensee’s sole remedy personnel within its control that are necessary or appropriate for any actual or alleged infringement or misappropriation referred to in Section 8.1such defense.
Appears in 1 contract
Sources: License Agreement (Visual Data Corp)
Indemnification by Licensor. (a) Except to the extent of Licensee's responsibility under Section 7.2 below and subject to Section 8.1 (Limitation of Liability) below, Licensor shall defend, indemnify, defend and hold Licensee and harmless Licensee, its Affiliates (other than Licensor)and their respective directors, officers, employees, and agents, and their respective employeessuccessors, officers, directors, agents heirs and representatives assigns (collectively, the “"Licensee Indemnified Parties”Indemnities"), harmless from and against any and all lossesliability, costs and reasonable expenses damage, loss or expense (including reasonable attorneys’ fees)attorney's fees and expenses of litigation) incurred by or imposed upon such Licensee Indemnities or any of them, damagesin connection with any Third Party claims, suits, actions, demands or judgments, including, without limitation, personal injury and liabilities product liability matters, to the extent arising out of (a) any claim actions or omissions of Licensor under this Agreement, (b) any material breach of this Agreement by any third party against any Licensee Indemnified Party that any use ofLicensor, or access to, (c) the Licensed Database IP, Licensed Software gross negligence or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under willful misconduct on the part of Licensor or contemplated by these Terms infringes patent infringement or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or infringement of other intellectual property rights of any third party; provided that Licensee gives Licensor (i) prompt written notice of such claim; (ii) reasonable authority to control and direct the defense and settlement of such claim; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s expense, in connection with such defense or settlement. Notwithstanding the foregoing, Licensor shall not settle any third-party claim against any Licensee Indemnified Party (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in respect of any actual wrongdoing by such Licensee Indemnified Party), or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect theretoto Licensee's manufacture, distribution, sale, export or import of the SI Bioreactor Vessel System to the extent such infringement action is based on use of the UMBC Patent Rights and UMBC Know-how hereunder or the Bioreactor Vessels.
(iib) such Licensee Indemnified Party provides its prior written consent to such settlement. In any action for which Licensor provides defense on behalf of any Licensee Indemnified PartyLicensor, such Licensee Indemnified Party may participate in such defense at its own expense by counsel expense, shall defend all such suits or actions within the scope of its choice.
8.2 Notwithstanding indemnity obligations under this Section 8.17.1, provided Licensor is promptly notified of such suits or actions, given access to all evidence in Licensee's possession, and given reasonable assistance by Licensee in Licensor's sole control of defense thereof and all negotiations for its settlement or compromise. Licensor shall have no obligation or liability to the extent that the alleged infringement is caused by (i) the combination, operation, Licensee for any settlement or use of the Licensed Database IP, Licensed Software compromise incurred or Licensed Manager Usage with products, services, information, materials, technologies, business methods or processes not furnished by Licensor; (ii) modifications to the Licensed Database IP, Licensed Software or Licensed Manager Usage, which modifications are not made by Licensor Licensee without Licensor's prior written consent (which consent shall not unreasonably be withheld or its agents; (iii) delayed). Licensee's failure to use updates to give prompt notice will not vitiate Licensor's indemnity obligations unless the Licensed Database IP, Licensed Software or Website Content provided by late notice has materially prejudiced Licensor, provided that updates to the Licensed Database IP and Licensed Software are in all material respects equivalent to, and may be readily substituted for, the Software being updated; and provided further that Licensee shall be afforded a reasonable amount 's right of time to implement any update; or (iv) use of the Licensed Database IP or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”)defense.
8.3 Upon the occurrence of any claim for which indemnity is or may be due under this Section 8, or in the event that Licensor reasonably believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Licensed Database IP, Licensed Software or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter the functionality or operations of the Licensed Database IP or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) if the foregoing options in clause (i) and (ii) are not reasonably available, terminate the license to the affected Licensed Database IP or Licensed Software or cease use of the affected Licensed Manager Usage. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and Licensee’s sole remedy for any actual or alleged infringement or misappropriation referred to in Section 8.1.
Appears in 1 contract
Indemnification by Licensor. 8.1 Licensor shall defend, indemnify, and hold Licensee and its Affiliates (other than Licensor), and their respective employees, officers, directors, agents and representatives (collectively, the “Licensee Indemnified Parties”), harmless from and against any and all losses, costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of any claim by any third party against any Licensee Indemnified Party that any use of, or access to, the Licensed Database IP, Intellectual Property or Licensed Software or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under or contemplated by these Terms infringes or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights of any third party; provided that Licensee gives Licensor (i) prompt written notice of such claim; (ii) reasonable authority to control and direct the defense and settlement of such claim; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s expense, in connection with such defense or settlement. Notwithstanding the foregoing, Licensor shall not settle any third-party claim against any Licensee Indemnified Party (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in respect of any actual wrongdoing by such Licensee Indemnified Party), or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consent to such settlement. In any action for which Licensor provides defense on behalf of any Licensee Indemnified Party, such Licensee Indemnified Party may participate in such defense at its own expense by counsel of its choice.
8.2 Notwithstanding Section 8.1, Licensor shall have no obligation or liability to the extent that the alleged infringement is caused by (i) the combination, operation, or use of the Licensed Database IPIntellectual Property, Licensed Software or Licensed Manager Usage with products, services, information, materials, technologies, business methods or processes not furnished by Licensor; (ii) modifications to the Licensed Database IPIntellectual Property, Licensed Software or Licensed Manager Usageor, which modifications are not made by Licensor or its agents; (iii) failure to use updates to the Licensed Database IPIntellectual Property, Licensed Software or Website Content provided by Licensor, provided that updates to the Licensed Database IP Intellectual Property and Licensed Software are in all material respects equivalent to, and may be readily substituted for, the Software being updated; and provided further that Licensee shall be afforded a reasonable amount of time to implement any update; or (iv) use of the Licensed Database IP Intellectual Property or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”).
8.3 Upon the occurrence of any claim for which indemnity is or may be due under this Section 8, or in the event that Licensor reasonably believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Licensed Database IPIntellectual Property, Licensed Software or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter the functionality or operations of the Licensed Database IP Intellectual Property or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) if the foregoing options in clause (i) and (ii) are not reasonably available, terminate the license to the affected Licensed Database IP Intellectual Property or Licensed Software or cease use of the affected Licensed Manager Usage. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and Licensee’s sole remedy for any actual or alleged infringement or misappropriation referred to in Section 8.1.
Appears in 1 contract
Indemnification by Licensor. 8.1 9.2.1. Licensor shall defend, will indemnify, defend and hold Licensee and harmless Licensee, its Affiliates (other than Licensor)and their respective directors, officers, employees, consultants, Licensor and agents, and their respective employeessuccessors, officers, directors, agents and representatives assigns (collectively, the each a “Licensee Indemnified PartiesIndemnitee”), harmless from and against any and all third party suits, actions, claims, proceedings, liabilities, demands, damages, losses, costs and reasonable or expenses (including legal expenses, investigative expenses, and reasonable attorneys’ fees)) resulting from, arising out of, or otherwise attributable to Licensor’s (a) negligence or misconduct, or (b) failure to comply with Applicable Laws or the terms of this Agreement, including any breach of Licensee’s express representations and warranties set forth in this Agreement, except to the extent resulting from, arising out of, or otherwise attributable to Licensee’s failure to comply with Applicable Laws or the terms of this Agreement, including any breach of any express representation, warranty or covenant set forth in this Agreement, or any act of gross negligence or intentional misconduct by a Licensee Indemnitee.
9.2.2. Licensee will promptly give notice to Licensor of any suits, actions, claims, proceedings, liabilities, demands, damages, and liabilities arising out of any claim by any third party against any Licensee Indemnified Party that any use oflosses, or access toexpenses which might be covered by this Section 9.2 and Licensor will have the right to defend the same, including selection of counsel and control of the Licensed Database IP, Licensed Software or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under or contemplated by these Terms infringes or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights of any third partyproceedings; provided that Licensee gives Licensor (i) prompt will not, without the written notice consent of Licensee, settle or consent to the entry of any judgment with respect to any such claim; (ii) reasonable authority to control and direct the defense and settlement of such claim; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s expense, in connection with such defense or settlement. Notwithstanding the foregoing, Licensor shall not settle any third-third party claim against (x) that does not release the Licensee Indemnitee(s) from all liability with respect to such third party claim or (y) which may materially adversely affect Licensee or the Licensee Indemnitee or under which Licensee or the Licensee Indemnitee would incur any Licensee Indemnified Party (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (obligation or liability, other than in respect of any actual wrongdoing by such Licensee Indemnified Party), or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consent one as to such settlement. In any action for which Licensor provides defense on behalf has an indemnity obligation hereunder. Licensee agrees to fully cooperate and aid such defense. Licensee at all times reserves the right to select and retain counsel of any Licensee Indemnified Party, such Licensee Indemnified Party may participate in such defense its own at its own expense by counsel of its choice.
8.2 Notwithstanding Section 8.1, Licensor shall have no obligation or liability to the extent that the alleged infringement is caused by (i) the combination, operation, or use of the Licensed Database IP, Licensed Software or Licensed Manager Usage with products, services, information, materials, technologies, business methods or processes not furnished by Licensor; (ii) modifications to the Licensed Database IP, Licensed Software or Licensed Manager Usage, which modifications are not made by Licensor or its agents; (iii) failure to use updates to the Licensed Database IP, Licensed Software or Website Content provided by Licensor, provided that updates to the Licensed Database IP and Licensed Software are in all material respects equivalent to, and may be readily substituted for, the Software being updated; and provided further that Licensee shall be afforded a reasonable amount of time to implement any update; or (iv) use of the Licensed Database IP or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”).
8.3 Upon the occurrence of any claim for which indemnity is or may be due under this Section 8, or in the event that Licensor reasonably believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Licensed Database IP, Licensed Software or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter the functionality or operations of the Licensed Database IP or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) if the foregoing options in clause (i) and (ii) are not reasonably available, terminate the license to the affected Licensed Database IP or Licensed Software or cease use of the affected Licensed Manager Usage. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and defend Licensee’s sole remedy for any actual or alleged infringement or misappropriation referred to in Section 8.1interests.
Appears in 1 contract
Sources: Exclusive License Agreement (Eterna Therapeutics Inc.)
Indemnification by Licensor. 8.1 Licensor shall hereby agrees to defend, indemnify, and hold Licensee and Licensee, its Affiliates (other than Licensor), and their respective employees, officers, directors, agents employees and representatives agents, (collectively, the each a “Licensee Indemnified PartiesParty”), ) harmless from and against any and all lossesThird Party’s claims for loss, costs and reasonable expenses (damage, or liability, including reasonable attorneys’ fees)fees and expenses) (collectively, damages, and liabilities arising out of any claim by any third party against any Licensee Indemnified Party that any use of, or access to, the Licensed Database IP, Licensed Software or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under or contemplated by these Terms infringes or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights of any third party; provided that Licensee gives Licensor “Losses”) resulting from: (i) prompt written notice any breach of such claimthis Agreement or any warranty or covenant provided in this Agreement by Licensor or an Affiliate of Licensor; (ii) reasonable authority to control and direct the defense and settlement any violation of such claimApplicable Law by Licensor or its Affiliates; and (iii) such information and assistance as any negligent act or omission or willful misconduct of Licensor may reasonably requestor its Affiliates; (iv) any claim that the sale by Licensee or its Affiliates, at Licensor’s expense, of the Licensed Products infringes on intellectual property rights in connection with such defense or settlement. Notwithstanding the foregoing, Licensor shall not settle any third-party claim against any Licensee Indemnified Party (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in respect Territory of any actual wrongdoing other person which exists as of the Effective Date; (v) any damage to property, personal injury or death arising in any way from the Licensed Product, except to the extent that damage, personal injury or death arises out of the act or omission of Licensee; and (vi) any claim arising from any use, within the approved labelling, made by any person of any of the Licensed Products; in all cases, except to the extent such Licensee Indemnified Third Party)’s claim for loss, damage or (B) unless liability is the result of: (i) such settlement completely and forever releases such any breach of this Agreement by Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consent to such settlement. In any action for which Licensor provides defense on behalf of any a Licensee Indemnified Party, such Licensee Indemnified Party may participate in such defense at its own expense by counsel of its choice.
8.2 Notwithstanding Section 8.1, Licensor shall have no obligation or liability to the extent that the alleged infringement is caused by (i) the combination, operation, or use of the Licensed Database IP, Licensed Software or Licensed Manager Usage with products, services, information, materials, technologies, business methods or processes not furnished by Licensor; (ii) modifications to the Licensed Database IPany violation of Applicable Law by Licensee or a Licensee Indemnified Party, Licensed Software or Licensed Manager Usage, which modifications are not made by Licensor or its agents; (iii) failure to use updates to the Licensed Database IP, Licensed Software or Website Content provided by Licensor, provided that updates to the Licensed Database IP and Licensed Software are in all material respects equivalent to, and may be readily substituted for, the Software being updated; and provided further that Licensee shall be afforded a reasonable amount of time to implement any update; or (iv) use of the Licensed Database IP or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”).
8.3 Upon the occurrence of any claim for which indemnity is or may be due under this Section 8, or in the event that Licensor reasonably believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Licensed Database IP, Licensed Software or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter the functionality or operations of the Licensed Database IP or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) if the foregoing options in clause (i) and (ii) are not reasonably available, terminate the license any negligent act or omission or willful misconduct of Licensee or a Licensee Indemnified Party. Notwithstanding anything to the affected Licensed Database IP or Licensed Software or cease use of the affected Licensed Manager Usage. The obligations set forth in contrary, this Section 8 shall constitute Licensor’s entire liability and Licensee’s sole remedy for any actual or alleged infringement or misappropriation 10.5 does not apply to the matters referred to in the final two paragraphs in Section 8.16.2.
Appears in 1 contract
Sources: Distribution, License and Supply Agreement (Onconova Therapeutics, Inc.)
Indemnification by Licensor. 8.1 9.2.1. Licensor shall defend, will indemnify, defend and hold Licensee and harmless Licensee, its Affiliates (other than Licensor)and their respective directors, officers, employees, consultants, Licensor and agents, and their respective employeessuccessors, officers, directors, agents and representatives assigns (collectively, the each a “Licensee Indemnified PartiesIndemnitee”), harmless from and against any and all third party suits, actions, claims, proceedings, liabilities, demands, damages, losses, costs and reasonable or expenses (including legal expenses, investigative expenses, and reasonable attorneys’ fees)) resulting from, damages, and liabilities arising out of any claim by any third party against any Licensee Indemnified Party that any use of, or access to, the Licensed Database IP, Licensed Software or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under or contemplated by these Terms infringes or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights of any third party; provided that Licensee gives Licensor (i) prompt written notice of such claim; (ii) reasonable authority otherwise attributable to control and direct the defense and settlement of such claim; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s expense, (a) negligence or misconduct in connection with such defense or settlement. Notwithstanding this Agreement (and for clarity, not with respect to the foregoing, provision of services contemplated under Section 3.1 which shall be governed by the terms of a separate services agreement between Licensor shall not settle any third-party claim against any Licensee Indemnified Party (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in respect of any actual wrongdoing by such Licensee Indemnified Partyand the applicable Sublicensee), or (Bb) unless (i) such settlement completely failure to materially comply with Applicable Laws or the terms of this Agreement, including any material breach of Licensee’s express representations and forever releases such warranties set forth in this Agreement, except to the extent resulting from, arising out of, or otherwise attributable to Licensee’s failure to comply with Applicable Laws or the terms of this Agreement, including any breach of any express representation, warranty or covenant set forth in this Agreement, or any act of gross negligence or intentional misconduct by a Licensee Indemnified Party Indemnitee.
9.2.2. Licensee will promptly give notice to Licensor of any suits, actions, claims, proceedings, liabilities, demands, damages, losses, or expenses which might be covered by this Section 9.2 and Licensor will have the right to defend the same, including selection of counsel and control of the proceedings; provided that Licensor will not, without the written consent of Licensee, settle or consent to the entry of any judgment with respect thereto, to any such third party claim (x) that does not release the Licensee Indemnitee(s) from all liability with respect to such third party claim or (iiy) such which may materially adversely affect Licensee Indemnified Party provides its prior written consent or the Licensee Indemnitee or under which Licensee or the Licensee Indemnitee would incur any obligation or liability, other than one as to such settlement. In any action for which Licensor provides defense on behalf has an indemnity obligation hereunder. Licensee agrees to fully cooperate and aid such defense. Licensee at all times reserves the right to select and retain counsel of any Licensee Indemnified Party, such Licensee Indemnified Party may participate in such defense its own at its own expense by counsel of its choice.
8.2 Notwithstanding Section 8.1, Licensor shall have no obligation or liability to the extent that the alleged infringement is caused by (i) the combination, operation, or use of the Licensed Database IP, Licensed Software or Licensed Manager Usage with products, services, information, materials, technologies, business methods or processes not furnished by Licensor; (ii) modifications to the Licensed Database IP, Licensed Software or Licensed Manager Usage, which modifications are not made by Licensor or its agents; (iii) failure to use updates to the Licensed Database IP, Licensed Software or Website Content provided by Licensor, provided that updates to the Licensed Database IP and Licensed Software are in all material respects equivalent to, and may be readily substituted for, the Software being updated; and provided further that Licensee shall be afforded a reasonable amount of time to implement any update; or (iv) use of the Licensed Database IP or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”).
8.3 Upon the occurrence of any claim for which indemnity is or may be due under this Section 8, or in the event that Licensor reasonably believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Licensed Database IP, Licensed Software or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter the functionality or operations of the Licensed Database IP or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) if the foregoing options in clause (i) and (ii) are not reasonably available, terminate the license to the affected Licensed Database IP or Licensed Software or cease use of the affected Licensed Manager Usage. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and defend Licensee’s sole remedy for any actual or alleged infringement or misappropriation referred to in Section 8.1interests.
Appears in 1 contract
Sources: Exclusive License Agreement (Eterna Therapeutics Inc.)
Indemnification by Licensor. 8.1 Licensor shall defend, indemnify, indemnify and hold Licensee and harmless Licensee, its Affiliates (other than Licensor), and their respective employees, officers, directors, agents employees and representatives (collectively, the “Licensee Indemnified Parties”), harmless Affiliates from and against any and all losses, costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities liability arising out of any claim by any third party against any suit, action, legal proceeding, claim or demand, of whatever kind or character, including claims of trademark or service ▇▇▇▇ infringement or unfair competition, that the use by Licensee Indemnified Party that any use of, or access to, of the Licensed Database IP, Licensed Software or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under or contemplated by these Terms infringes or misappropriatesTrademarks, as applicableauthorized and approved by Licensor pursuant to this Agreement, any trademarks, patent, copyrights, trade secrets or other intellectual property violates the rights of any such third party; provided . Licensor's obligations under this Section 11.2 shall apply only to those acts that Licensee gives Licensor occur during the period during which royalties are due, and only if: (i) prompt written notice Licensee promptly notifies Licensor of any claim giving rise to such liability and fully discloses to Licensor all information relating to such claim; (ii) Licensee provides reasonable authority cooperation to control and direct Licensor in the defense of all such claims, which defense costs and settlement of such claim; expenses, and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s expense, in connection with such defense or settlement. Notwithstanding the foregoing, Licensor shall not settle any third-party claim against any Licensee Indemnified Party (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in respect of any actual wrongdoing by such Licensee Indemnified Party), or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consent to such settlement. In any action for which Licensor provides defense on behalf of any Licensee Indemnified Party, such Licensee Indemnified Party may participate in such defense at its own expense by counsel of its choice.
8.2 Notwithstanding Section 8.1, Licensor shall have no obligation or liability to the extent that the alleged infringement is caused by (i) the combination, operation, or use of the Licensed Database IP, Licensed Software or Licensed Manager Usage with products, services, information, materials, technologies, business methods or processes not furnished by Licensor; (ii) modifications to the Licensed Database IP, Licensed Software or Licensed Manager Usage, which modifications are not made Licensee incurs any legal expenses that have been approved in writing by Licensor or its agentsfor providing assistance in the defense of any such claims, shall be Licensor's responsibility; (iii) failure Licensee neither acts nor fails to use updates to the Licensed Database IP, Licensed Software act in such manner as may jeopardize or Website Content provided by Licensor, provided that updates to the Licensed Database IP and Licensed Software are compromise such defense or hinder Licensor in all material respects equivalent to, and may be readily substituted for, the Software being updatedproviding such defense; and provided further that Licensee shall be afforded a reasonable amount of time to implement any update; or (iv) the claim is by either (a) a third party licensed by Licensor to use the Licensed Trademarks other than under any of the Licensed Database IP licenses set forth on Schedule 4(l)(i) of the Recapitalization Agreement or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”).
8.3 Upon the occurrence of any claim for which indemnity is or may be due under this Section 8Exhibit 2 hereto, or in (b) any other third party whose rights the event that Licensor reasonably believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Licensed Database IP, Licensed Software or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter the functionality or operations Specified Employees had Knowledge of as of the Licensed Database IP or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) if the foregoing options in clause (i) and (ii) are not reasonably available, terminate the license to the affected Licensed Database IP or Licensed Software or cease use of the affected Licensed Manager UsageEffective Date. The obligations limitations set forth in Section 12 of this Section 8 Agreement shall constitute Licensor’s entire liability and Licensee’s sole remedy for any actual or alleged infringement or misappropriation referred not apply to in Section 8.1.this
Appears in 1 contract
Sources: Trademark License Agreement (Morris Material Handling Inc)
Indemnification by Licensor. 8.1 (a) Licensor shall defend, indemnify, defend and hold harmless Licensee and its Affiliates (other than Licensor)shareholders, directors, officers, members, managers, employees, agents and end users, and their respective employeessuccessors, officersheirs and assigns, directors, agents and representatives (collectively, the “Licensee Indemnified Parties”), harmless from and against any and all lossesclaims, costs wherever brought and reasonable expenses (however denominated, including reasonable attorneys’ fees)all damages in connection therewith, damagesarising from any breach of Licensor’s obligations under this Agreement. Licensee shall indemnify, defend and hold harmless Licensor and its shareholders, directors, officers, members, managers, employees and agents, and liabilities their respective successors, heirs and assigns, against any and all claims, wherever brought and however denominated, including all damages in connection therewith, arising out from (i) any breach of Licensee’s obligations under this Agreement, or (ii) any claim by any third party end-user of the Licensed Software except to the extent such claim results from a breach of Licensor’s obligations hereunder.
(b) A Party seeking indemnification hereunder (the “Indemnified Party”) shall give the Party against any Licensee which the Indemnified Party that any use of, or access to, seeks indemnification hereunder (the Licensed Database IP, Licensed Software or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under or contemplated by these Terms infringes or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights of any third party; provided that Licensee gives Licensor (i“Indemnifying Party”) prompt written notice of any claim with respect to which indemnification obligations apply, but any delay or failure of such notice shall not excuse Indemnifying Party’s indemnification obligations except to the extent that the Indemnifying Party’s legal position is actually prejudiced thereby. The Indemnifying Party shall have the right to assume and control the defense and settlement of any such claim; except that Indemnified Party shall have the right to control, at the Indemnified Party’s expense, the defense and settlement of any such claim if: (i) the Indemnified Party reasonably determines that there is a conflict of interest between the Indemnifying Party and the Indemnified Party with respect to such claim; (ii) the Indemnifying Party fails to employ counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable authority time after the Indemnifying Party’s receipt of notice of the claim; or (iii) in the reasonable opinion of counsel to the Indemnified Party, the claim could result in the Indemnified Party becoming subject to injunctive or other non-monetary relief that could have a material adverse effect on the Indemnified Party’s ongoing business. Any Party not controlling the defense shall have the right to participate in the claim at its own expense, but in any event shall cooperate with the controlling Party in the investigation and defense of the claim.
(c) If the Indemnifying Party is entitled to, and does, assume and control and direct the defense and settlement of any claim with respect to which its indemnification obligations apply, then the Indemnifying Party shall not settle such claim; claim without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld or delayed), unless (i) the sole relief provided in such settlement is monetary in nature and shall be paid in full by the Indemnifying Party, (ii) such settlement does not include any finding or admission of a violation by the Indemnified Party of any applicable laws or Third Party’s rights, and (iii) such information and assistance as Licensor may settlement could not reasonably request, at Licensor’s expense, in connection with such defense or settlement. Notwithstanding the foregoing, Licensor shall not settle any third-party claim against any Licensee Indemnified Party be construed to (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in respect limit or impair the validity or enforceability of any actual wrongdoing by such Licensee the Licensed Software or Improvements or the Indemnified Party), ’s rights therein or (B) unless (i) such settlement completely and forever releases such Licensee limit or adversely affect the conduct of the Indemnified Party. Whenever the Indemnified Party controls the defense and settlement of a claim with respect theretoto which the Indemnifying Party’s indemnification obligations apply, or (ii) such Licensee the Indemnifying Party shall not be liable for any settlement thereof effected by the Indemnified Party provides its unless the Indemnified Party shall have obtained the Indemnifying Party’s prior written consent to such settlement. In any action for the proposed settlement (which Licensor provides defense on behalf of any Licensee Indemnified Party, such Licensee Indemnified Party may participate in such defense at its own expense by counsel of its choice.
8.2 Notwithstanding Section 8.1, Licensor consent shall have no obligation not be unreasonably withheld or liability to the extent that the alleged infringement is caused by (i) the combination, operation, or use of the Licensed Database IP, Licensed Software or Licensed Manager Usage with products, services, information, materials, technologies, business methods or processes not furnished by Licensor; (ii) modifications to the Licensed Database IP, Licensed Software or Licensed Manager Usage, which modifications are not made by Licensor or its agents; (iii) failure to use updates to the Licensed Database IP, Licensed Software or Website Content provided by Licensor, provided that updates to the Licensed Database IP and Licensed Software are in all material respects equivalent to, and may be readily substituted for, the Software being updated; and provided further that Licensee shall be afforded a reasonable amount of time to implement any update; or (iv) use of the Licensed Database IP or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”delayed).
8.3 Upon the occurrence of (d) No liability shall attain against any claim for which indemnity is or may be due under this Section 8officer, director, member, agent, or in employee of Licensor; any such liability shall be paid solely from the event that Licensor reasonably believes that such a claim is likelyassets of Licensor.
(e) IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE FOR ANY INDIRECT, Licensor mayINCIDENTAL, at its option (i) appropriately modify the Licensed Database IPPUNITIVE, Licensed Software or Licensed Manager Usage so that they become nonSPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF DATA, LOSS OF ANTICIPATED SAVINGS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT OR THE OPERATION OR USE OF THE LICENSED SOFTWARE, INCLUDING WITHOUT LIMITATION SUCH DAMAGES ARISING FROM DAMAGE TO LICENSEE’S OR END-infringing (provided such modifications do not alter the functionality or operations of the Licensed Database IP or Licensed Software in any material adverse respect)USERS’ EQUIPMENT, or substitute functionally equivalent software or services (at no cost to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) if the foregoing options in clause (i) and (ii) are not reasonably available, terminate the license to the affected Licensed Database IP or Licensed Software or cease use of the affected Licensed Manager UsageEVEN IF LICENSOR HAS NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and Licensee’s sole remedy for any actual or alleged infringement or misappropriation referred to in Section 8.1THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Appears in 1 contract
Sources: License Agreement (VOIS Inc.)
Indemnification by Licensor. 8.1 Licensor shall defend, indemnify, and hold Licensee and its Affiliates (other than Licensor), and their respective employees, officers, directors, employees, and agents and representatives (collectively, the “Licensee Indemnified PartiesIndemnitees”), ) harmless from and against any and all losses, damages, liabilities, costs and reasonable expenses (including reasonable attorneys’ fees)fees and expenses) (collectively, damages, and liabilities arising out of any claim by any third party against any Licensee Indemnified Party that any use of, or access to, the Licensed Database IP, Licensed Software or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under or contemplated by these Terms infringes or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights of any third party; provided that Licensee gives Licensor (i“Losses”) prompt written notice of such claim; (ii) reasonable authority to control and direct the defense and settlement of such claim; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s expense, in connection with such defense or settlement. Notwithstanding the foregoingany and all claims, Licensor shall not settle any third-party claim against any Licensee Indemnified Party (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in respect of any actual wrongdoing by such Licensee Indemnified Party)demands, suits, or proceedings of Third Parties (Bexcluding Licensee’s Designated Parties) unless (icollectively, “Third Party Claims”) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consent to such settlement. In any action for which Licensor provides defense on behalf of any Licensee Indemnified Party, such Licensee Indemnified Party may participate in such defense at its own expense by counsel of its choice.
8.2 Notwithstanding Section 8.1, Licensor shall have no obligation or liability to the extent that the alleged infringement is caused by such Third Party Claims arise out of, are based on, or result from (ia) the combinationDevelopment, operationmanufacture or Commercialization of the Products by or on behalf of Licensor or its Affiliate or licensees (other than Licensee, its Affiliates, and Designated Parties), including Product Liabilities claims, in each case occurring outside of the Territory; (b) the breach of any of Licensor’s obligations under this Agreement or the Exclusive Trademark License, including Licensor’s representations and warranties set forth herein or therein, (c) the use of the Licensed Database IPMarks by Licensee or Designated Parties in accordance with the terms of this Agreement and the Exclusive Trademark License infringes a Third Party’s trademark or other proprietary rights in the Territory, Licensed Software or Licensed Manager Usage with products(d) the willful misconduct, servicesgross negligence or violations of Applicable Laws of Licensor, informationits Affiliates, materialsits licensees (other than Licensee, technologiesits Affiliates, business methods and Designated Parties), or processes not furnished by Licensor; (ii) modifications to the Licensed Database IPofficers, Licensed Software directors, employees, or Licensed Manager Usage, which modifications are not made by agents of Licensor or its agents; Affiliates, its licensees (iii) failure to use updates other than Licensee, its Affiliates, and Designated Parties). The foregoing indemnity obligation shall not apply to the Licensed Database IPextent that any Third Party Claim arises from, Licensed Software is based on, or Website Content provided by Licensor, provided that updates to the Licensed Database IP and Licensed Software are in all material respects equivalent to, and may be readily substituted for, the Software being updated; and provided further that Licensee shall be afforded a reasonable amount of time to implement results from any update; activity or (iv) use of the Licensed Database IP or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”).
8.3 Upon the occurrence of any claim for which indemnity Licensee is or may be due obligated to indemnify the Licensor Indemnitees under this Section 8, or in the event that Licensor reasonably believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Licensed Database IP, Licensed Software or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter the functionality or operations of the Licensed Database IP or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) if the foregoing options in clause (i) and (ii) are not reasonably available, terminate the license to the affected Licensed Database IP or Licensed Software or cease use of the affected Licensed Manager Usage. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and Licensee’s sole remedy for any actual or alleged infringement or misappropriation referred to in Section 8.1Article 11.2.
Appears in 1 contract
Sources: License, Collaboration and Supply Agreement (Capstar Special Purpose Acquisition Corp.)
Indemnification by Licensor. 8.1 Licensor shall defend, indemnify, and hold harmless the Licensee and its Affiliates the affiliates and Representatives of Licensee (other than Licensor)each, and their respective employeesa “Licensee Indemnified Party” and, officers, directors, agents and representatives (collectively, the “Licensee Indemnified Parties”), harmless ) from and against any and all lossesLosses asserted against, costs and reasonable expenses (including reasonable attorneys’ fees)incurred, damages, and liabilities arising out of any claim sustained or suffered by any third party against any Licensee Indemnified Party that any use of, or access to, the Licensed Database IP, Licensed Software or Licensed Manager Usage by such a Licensee Indemnified Party as expressly authorized under a result of, arising out of, or contemplated relating to, a claim that the Platform as licensed and delivered to Licensee by these Terms Licensor infringes or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights misappropriates the Intellectual Property of any third party; provided that Licensee gives Licensor (i) prompt written notice of such claim; (ii) reasonable authority to control and direct the defense and settlement of such claim; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s expense, in connection with such defense or settlement. Notwithstanding the foregoing, Licensor shall not settle any third-party claim against any Licensee Indemnified Party existing as of the Effective Date (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in respect of any actual wrongdoing by such Licensee Indemnified Partyeach an “Infringement Claim”); provided, or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consent to such settlement. In any action for which Licensor provides defense on behalf of any Licensee Indemnified Party, such Licensee Indemnified Party may participate in such defense at its own expense by counsel of its choice.
8.2 Notwithstanding Section 8.1, however that Licensor shall have no obligation or liability to Licensee under this Agreement with respect to any Infringement Claim arising: (a) twenty four (24) months after the Effective Date; (b) to the extent that the alleged infringement is caused by arising from: (i) Any Licensee Improvements or any modifications to the combination, operationPlatform or Escrow Materials made by, or use of the Licensed Database IPon behalf of, Licensed Software Licensee or Licensed Manager Usage with products, services, information, materials, technologies, business methods or processes not furnished by Licensorotherwise at Licensee’s request; (ii) modifications to the Licensed Database IP, Licensed Software or Licensed Manager Usage, which modifications are not made by Licensor or its agentsLicensee’s breach of this Agreement; (iii) failure to Licensee’s or its Representative or sublicensees’ use updates to of the Licensed Database IP, Licensed Software Platform or Website Content provided by Licensor, provided that updates to the Licensed Database IP and Licensed Software are any Licensor Intellectual Property in all material respects equivalent to, and may be readily substituted for, the Software being updatedany manner in violation of this Agreement or associated Documentation; and provided further that (iv) the combination of the Platform and Licensor Intellectual Property with any Licensee shall be afforded a reasonable amount of time to implement any updateor third-party software or other Intellectual Property; or (ivc) use of the Licensed Database IP or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”).
8.3 Upon after the occurrence of a Use Release Event. If the Platform or any claim for which indemnity is Licensor Intellectual Property becomes the subject of any Infringement Claim or may be due under this Section 8, or in the event that Licensor reasonably believes that such a claim is likelyinjunction, Licensor may, may (at its option sole option), do one of the following to mitigate the Losses relating to the Infringement Claim: (i1) appropriately procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Property; (2) replace or modify the Licensed Database IP, Licensed Software impacted portions of the Platform or Licensed Manager Usage Licensor Intellectual Property so that they become it becomes non-infringing (provided such modifications do not alter the functionality without substantially compromising functions, features, or operations performance of the Licensed Database IP Platform or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rightsLicensor Intellectual Property; or (iii3) if the foregoing options in clause Licensor is unable at commercially reasonable effort or expense to make such modifications, then Licensor shall be entitled to terminate this Agreement without further liability to Licensee. This Section 14.1 (iIndemnification by Licensor) and (ii) are not reasonably available, terminate the license to the affected Licensed Database IP or Licensed Software or cease use of the affected Licensed Manager Usage. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and is Licensee’s sole and exclusive remedy for any actual claim that the Platform or alleged infringement any Licensor Intellectual Property infringes or misappropriation referred to in Section 8.1misappropriates the Intellectual Property of any third party and Licensor may not exercise any indemnity or similar monetary remedy under the Purchase Agreement.
Appears in 1 contract
Sources: Platform Exclusive License Agreement (Cuentas Inc.)
Indemnification by Licensor. 8.1 Licensor shall defend, indemnify, and hold Licensee and its Affiliates (other than Licensor), and their respective employees, officers, directors, agents and representatives (collectively, the “Licensee Indemnified Parties”), harmless from and against any and all losses, costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of any claim by any third party against any Licensee Indemnified Party that any use of, or access to, the Licensed Database IP, Intellectual Property or Licensed Software or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under or contemplated by these Terms in this Agreement infringes or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights of any third party; provided that Licensee gives Licensor (i) prompt written notice of such claim; (ii) reasonable authority to control and direct the defense and settlement of such claim; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s expense, in connection with such defense or settlement. Notwithstanding the foregoing, Licensor shall not settle any third-party claim against any Licensee Indemnified Party (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in respect of any actual wrongdoing by such Licensee Indemnified Party), or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consent to such settlement. In any action for which Licensor provides defense on behalf of any Licensee Indemnified Party, such Licensee Indemnified Party may participate in such defense at its own expense by counsel of its choice.
8.2 Notwithstanding Section 8.1, Licensor shall have no obligation or liability to the extent that the alleged infringement is caused by (i) the combination, operation, or use of the Licensed Database IPIntellectual Property, Licensed Software or Licensed Manager Usage with products, services, information, materials, technologies, business methods or processes not furnished by Licensor; (ii) modifications to the Licensed Database IPIntellectual Property, Licensed Software or Licensed Manager Usageor, which modifications are not made by Licensor or its agents; (iii) failure to use updates to the Licensed Database IPIntellectual Property, Licensed Software or Website Content provided by Licensor, provided that updates to the Licensed Database IP Intellectual Property and Licensed Software are in all material respects equivalent to, and may be readily substituted for, the Software being updated; and provided further that Licensee shall be afforded a reasonable amount of time to implement any update; or (iv) use of the Licensed Database IP Intellectual Property or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”).
8.3 Upon the occurrence of any claim for which indemnity is or may be due under this Section 8, or in the event that Licensor reasonably believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Licensed Database IPIntellectual Property, Licensed Software or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter the functionality or operations of the Licensed Database IP Intellectual Property or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) if the foregoing options in clause (i) and (ii) are not reasonably available, terminate the license to the affected Licensed Database IP Intellectual Property or Licensed Software or cease use of the affected Licensed Manager Usage. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and Licensee’s sole remedy for any actual or alleged infringement or misappropriation referred to in Section 8.1.
Appears in 1 contract
Indemnification by Licensor. 8.1 Licensor shall defend, indemnify, defend and hold harmless Licensee and its Affiliates the Company Affiliates, the representatives and agents thereof, and each of the successors and assigns of any of the foregoing (but excluding for the avoidance of doubt any Broker Affiliate or Franchisee or any other sublicensee of Licensee other than Licensor), and their respective employees, officers, directors, agents and representatives a Company Affiliate) (collectively, the “"Licensee Indemnified Parties”"), harmless from and against any and all lossesDamages suffered by any of the Licensee Indemnified Parties resulting from, costs and reasonable expenses arising out of, relating to or incurred with respect to (without duplication of any amounts paid pursuant to Section 7.2 of the Purchase Agreement):
(i) any breach by Licensor of this Agreement (including reasonable attorneys’ feesin respect of any representation or warranty of Licensor as of the Effective Date, or with respect to the exercise of the Option with respect to any Option Territory, as of the date of license to the extent applicable);
(ii) any third-party claim, damagessuit, and liabilities demand, investigation, proceeding, arbitration or litigation against any Licensee Indemnified Party that the use of any Registered ▇▇▇▇ for the Applicable Registered Services in the Applicable Registered Country violates or infringes the trademark, copyright, right of publicity or privacy or other intellectual property rights of such third party except to the extent resulting from, arising out of, relating to or incurred with respect to (x) any use of any claim Licensed ▇▇▇▇ by any Person in breach of this Agreement or any sublicense, (y) any combination of any Licensed ▇▇▇▇ with any other ▇▇▇▇ or (z) the provision of any service or product other than the Applicable Registered Services in the Applicable Registered Country under the Registered ▇▇▇▇ corresponding thereto; and
(iii) any claim, suit, demand, investigation, proceeding, arbitration or litigation by a third party against any Licensee Indemnified Party that any use resulting from, arising out of, relating to or access toincurred with respect to the business, the Licensed Database IPoperations, Licensed Software conduct, acts or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under or contemplated by these Terms infringes or misappropriates, as applicableomissions of Licensor, any trademarksLicensor Affiliate or any of their agents, patentSubsidiaries, copyrightsAffiliates, trade secrets franchisees or other intellectual property rights of any third party; provided that Licensee gives Licensor (i) prompt written notice of such claim; (ii) reasonable authority to control and direct sublicensees conducting business under the defense and settlement of such claim; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s expense, Sotheby's ▇▇▇▇ in connection with such defense or settlement. Notwithstanding any service other than the foregoing, Licensor Authorized Services (which shall not settle any third-party claim against include the business, operations, conduct, acts or omissions of any Licensee Indemnified Party or any direct or indirect sublicensee, franchisee, Affiliate or agent of Licensee), and any matter relating thereto, including (Ax) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in respect failure of any actual wrongdoing by such Licensee Indemnified Party), or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consent Person to such settlement. In any action for which Licensor provides defense on behalf of any Licensee Indemnified Party, such Licensee Indemnified Party may participate in such defense at its own expense by counsel of its choice.
8.2 Notwithstanding Section 8.1, Licensor shall have no obligation or liability to the extent that the alleged infringement is caused by (i) the combination, operation, or use of the Licensed Database IP, Licensed Software or Licensed Manager Usage with products, services, information, materials, technologies, business methods or processes not furnished by Licensor; (ii) modifications to the Licensed Database IP, Licensed Software or Licensed Manager Usage, which modifications are not made by Licensor or its agents; (iii) failure to use updates to the Licensed Database IP, Licensed Software or Website Content provided by Licensor, provided that updates to the Licensed Database IP and Licensed Software are in all material respects equivalent to, and may be readily substituted for, the Software being updated; and provided further that Licensee shall be afforded a reasonable amount of time to implement any update; or (iv) use of the Licensed Database IP or Licensed Software except in accordance comply with any applicable user documentation Law and (y) acts or specifications which have been specifically notified omissions of any such Person constituting fraud, tortious conduct, unfair trade practices, negligence or willful misconduct, or resulting in damage or destruction of property, injury, death, loss or other damages of any kind, except with respect to Licensee (circumstances under all of the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”).
8.3 Upon the occurrence of any claim for those Damages for which indemnity is or may be due under this Section 8, or in the event that Licensee has an obligation to indemnify a Licensor reasonably believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Licensed Database IP, Licensed Software or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter the functionality or operations of the Licensed Database IP or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost Indemnified Party pursuant to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) if the foregoing options in terms of clause (i) and of Section 13.1 (ii) are not reasonably available, terminate the license without giving effect to the affected Licensed Database IP or Licensed Software or cease use of the affected Licensed Manager Usage. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and Licensee’s sole remedy for any actual or alleged infringement or misappropriation referred to in Section 8.113.3).
Appears in 1 contract
Sources: Trademark License Agreement (Sothebys Holdings Inc)
Indemnification by Licensor. 8.1 9.2.1. Each Licensor shall defend, (severally and not jointly) will indemnify, defend and hold Licensee and harmless Licensee, its Affiliates (other than Licensor)and their respective directors, officers, employees, consultants, licensors and agents, and their respective employeessuccessors, officers, directors, agents and representatives assigns (collectively, the each a “Licensee Indemnified PartiesIndemnitee”), harmless from and against any and all third party suits, actions, claims, proceedings, liabilities, demands, damages, losses, costs and reasonable or expenses (including legal expenses, investigative expenses, and reasonable attorneys’ fees)) resulting from, arising out of, or otherwise attributable to such Licensor’s breach of its express representations and warranties set forth in Section 6.1 of this Agreement, except to the extent resulting from, arising out of, or otherwise attributable to Licensee’s breach of any express representation, warranty or covenant set forth in Section 6.2, or any act of gross negligence or intentional misconduct by a Licensee Indemnitee.
9.2.2. Licensee will promptly give notice to Licensors of any suits, actions, claims, proceedings, liabilities, demands, damages, and liabilities arising out of any claim by any third party against any Licensee Indemnified Party that any use oflosses, or access toexpenses which might be covered by this Section 9.2 and Licensors will have the right to defend the same, including selection of counsel and control of the Licensed Database IP, Licensed Software or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under or contemplated by these Terms infringes or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights of any third partyproceedings; provided that Licensee gives Licensor (i) prompt Licensors will not, without the written notice consent of Licensee, settle or consent to the entry of any judgment with respect to any such claim; (ii) reasonable authority to control and direct the defense and settlement of such claim; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s expense, in connection with such defense or settlement. Notwithstanding the foregoing, Licensor shall not settle any third-third party claim against (x) that does not release the Licensee Indemnitee(s) from all liability with respect to such third party claim or (y) which may materially adversely affect Licensee or the Licensee Indemnitee or under which Licensee or the Licensee Indemnitee would incur any Licensee Indemnified Party (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (obligation or liability, other than in respect one as to which a Licensor has an indemnity obligation hereunder. Licensee agrees to fully cooperate and aid such defense. Licensee at all times reserves the right to select and retain counsel of any actual wrongdoing by such Licensee Indemnified Party), or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consent to such settlement. In any action for which Licensor provides defense on behalf of any Licensee Indemnified Party, such Licensee Indemnified Party may participate in such defense own at its own expense by counsel of its choice.
8.2 Notwithstanding Section 8.1, Licensor shall have no obligation or liability to the extent that the alleged infringement is caused by (i) the combination, operation, or use of the Licensed Database IP, Licensed Software or Licensed Manager Usage with products, services, information, materials, technologies, business methods or processes not furnished by Licensor; (ii) modifications to the Licensed Database IP, Licensed Software or Licensed Manager Usage, which modifications are not made by Licensor or its agents; (iii) failure to use updates to the Licensed Database IP, Licensed Software or Website Content provided by Licensor, provided that updates to the Licensed Database IP and Licensed Software are in all material respects equivalent to, and may be readily substituted for, the Software being updated; and provided further that Licensee shall be afforded a reasonable amount of time to implement any update; or (iv) use of the Licensed Database IP or Licensed Software except in accordance with any applicable user documentation or specifications which have been specifically notified to Licensee (circumstances under the foregoing clauses (i) - (iv), collectively, “Licensee Indemnity Responsibilities”).
8.3 Upon the occurrence of any claim for which indemnity is or may be due under this Section 8, or in the event that Licensor reasonably believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Licensed Database IP, Licensed Software or Licensed Manager Usage so that they become non-infringing (provided such modifications do not alter the functionality or operations of the Licensed Database IP or Licensed Software in any material adverse respect), or substitute functionally equivalent software or services (at no cost to the Licensee, including for any required customizations); (ii) obtain a proper license to the applicable third-party intellectual property rights; or (iii) if the foregoing options in clause (i) and (ii) are not reasonably available, terminate the license to the affected Licensed Database IP or Licensed Software or cease use of the affected Licensed Manager Usage. The obligations set forth in this Section 8 shall constitute Licensor’s entire liability and defend Licensee’s sole remedy for any actual or alleged infringement or misappropriation referred to in Section 8.1interests.
Appears in 1 contract
Sources: Exclusive License Agreement (Brooklyn ImmunoTherapeutics, Inc.)