Infringement of Intellectual Property. 8.1 Aircom agrees to pay all costs, damages and attorneys’ fees finally awarded in any suit by a third party against LUXE to the extent based upon a finding that the design, construction, use or importation of a Product (including the Software), as furnished, infringes the intellectual property rights of such third party, provided that LUXE promptly notifies Aircom, in writing, of such claims, and provided LUXE gives Aircom the right to defend and/or settle such claim at Aircom’s expense with counsel of Aircom’s choice. LUXE shall cooperate with Aircom, at Aircom’s expense, in the defense or settlement of the claim. 8.2 If the manufacture, use or sale of any of the Products (including the Software) is enjoined or is unable to be used pursuant to a term of settlement, Aircom shall at Aircom’s expense, to do one of the following: (a) obtain for LUXE the right to use the Product, (b) modify the Product so that it becomes non-infringing or (c) replace it with a non-infringing Product that is substantially in compliance with the specifications and functionality for the Product in all material respects. If none of the foregoing is commercially feasible, Aircom shall refund the entire purchase price paid by LUXE for the Product at issue (or for Products more than one (1) year old Aircom shall refund the then-current market value of the Product). If Aircom has not completed delivery of such Products, Aircom shall not be obligated to continue delivering such Products. If Aircom reasonably believes a Product is likely to be the subject of a claim, suit, proceeding or injunction, Aircom shall also have the right, at Aircom’s option, to do any of the above. If Aircom elects to replace a Product with a non-infringing Product or to refund the purchase price to LUXE, LUXE shall return the allegedly infringing Product to Aircom, at Aircom’s expense, as soon as practicable.
Appears in 1 contract
Sources: Purchase Agreement (Aerkomm Inc.)
Infringement of Intellectual Property. 8.1 Aircom agrees to pay all costs, damages and attorneys’ fees finally awarded in any suit by a third party against LUXE dMobile to the extent based upon a finding that the design, construction, use or importation of a Product (including the Software), as furnished, infringes the intellectual property rights of such third party, provided that LUXE dMobile promptly notifies Aircom, in writing, of such claims, and provided LUXE dMobile gives Aircom the right to defend and/or settle such claim at Aircom’s expense with counsel of Aircom’s choice. LUXE dMobile shall cooperate with Aircom, at Aircom’s expense, in the defense or settlement of the claim.
8.2 If the manufacture, use or sale of any of the Products (including the Software) is enjoined or is unable to be used pursuant to a term of settlement, Aircom shall at Aircom’s expense, to expense do one of the following: (a) obtain for LUXE dMobile the right to use the Product, (b) modify the Product so that it becomes non-infringing or (c) replace it with a non-infringing Product that is substantially in compliance with the specifications and functionality for the Product in all material respects. If none of the foregoing is commercially feasible, Aircom shall refund the entire purchase price paid by LUXE dMobile for the Product at issue (or for Products more than one (1) year old Aircom shall refund the then-current market value of the Product). If Aircom has not completed delivery of such Products, Aircom shall not be obligated to continue delivering such Products. If Aircom reasonably believes a Product is likely to be the subject of a claim, suit, proceeding or injunction, Aircom shall also have the right, at Aircom’s option, to do any of the above. If Aircom elects to replace a Product with a non-infringing Product or to refund the purchase price to LUXEdMobile, LUXE dMobile shall return the allegedly infringing Product to Aircom, at Aircom’s expense, as soon as practicable.
8.3 Aircom agrees to use reasonable efforts to provide dMobile with six (6) months prior written notice if the manufacture, use or sale of any of the Products is discontinued, for any reason whatsoever. Aircom will accept orders for a last time buy of the Products within such six (6) month period provided that the delivery schedule for such Products shall not extend beyond one (1) year after the date of Aircom’s notice. In addition, Aircom will use reasonable efforts to supply or locate a supplier of a replacement Product for any Product discontinued such that the replacement Product will have at least the same performance capabilities and functionality as the Product discontinued, and will be substantially similar or less in cost than the Product discontinued.
Appears in 1 contract
Sources: Purchase Agreement (Aerkomm Inc.)
Infringement of Intellectual Property. 8.1 Aircom BTC agrees to pay all costs, damages and attorneys’ fees finally awarded in any suit by a third party against LUXE Aircom to the extent based upon a finding that the design, construction, use or importation of a Product (including the Software), as furnished, infringes the intellectual property rights of such third party, provided that LUXE Aircom promptly notifies AircomBTC, in writing, of such claims, and provided LUXE Aircom gives Aircom BTC the right to defend and/or settle such claim at AircomBTC’s expense with counsel of AircomBTC’s choice. LUXE Aircom shall cooperate with AircomBTC, at AircomBTC’s expense, in the defense or settlement of the claim.
8.2 If the manufacture, use or sale of any of the Products (including the Software) is enjoined or is unable to be used pursuant to a term of settlement, Aircom BTC shall at AircomBTC’s expense, to expense do one of the following: (a) obtain for LUXE Aircom the right to use the Product, (b) modify the Product so that it becomes non-infringing or (c) replace it with a non-infringing Product that is substantially in compliance with the specifications and functionality for the Product in all material respects. If none of the foregoing is commercially feasible, Aircom BTC shall refund the entire purchase price paid by LUXE Aircom for the Product at issue (or for Products more than one (1) year old Aircom BTC shall refund the then-current market value of the Product). If Aircom BTC has not completed delivery of such Products, Aircom BTC shall not be obligated to continue delivering such Products. If Aircom BTC reasonably believes a Product is likely to be the subject of a claim, suit, proceeding or injunction, Aircom BTC shall also have the right, at AircomBTC’s option, to do any of the above. If Aircom BTC elects to replace a Product with a non-infringing Product or to refund the purchase price to LUXEAircom, LUXE Aircom shall return the allegedly infringing Product to AircomBTC, at AircomBTC’s expense, as soon as practicable.
8.3 BTC agrees to use reasonable efforts to provide Aircom with six (6) months prior written notice if the manufacture, use or sale of any of the Products is discontinued, for any reason whatsoever. BTC will accept orders for a last time buy of the Products within such six (6) month period provided that the delivery schedule for such Products shall not extend beyond one (1) year after the date of BTC’s notice. In addition, BTC will use reasonable efforts to supply or locate a supplier of a replacement Product for any Product discontinued such that the replacement Product will have at least the same performance capabilities and functionality as the Product discontinued, and will be substantially similar or less in cost than the Product discontinued.
8.4 Under no circumstances shall BTC have any liability for infringement arising from or occurring as a result of the use of the Products in combination and/or configuration with other products requested by Aircom, incorporation of a specific design or modification at the request of Aircom, or the failure by Aircom to implement changes, replacements or new compatible releases recommended by BTC, where the infringement would have been avoided by such changes, replacements or new releases.
8.5 BTC’s indemnification obligation under this Section 8 shall not exceed the total amount paid to BTC by Aircom for the Products purchased under this Agreement. This Section 8 specifies BTC’s entire liability with respect to infringement of intellectual property by the Products.
Appears in 1 contract
Sources: Purchase Agreement (Aerkomm Inc.)
Infringement of Intellectual Property. 8.1 Aircom agrees 9.1 LICENSEE and LICENSOR agree to pay all costs, damages and attorneys’ fees finally awarded in any suit by a third party against LUXE to the extent based upon a finding that the design, construction, use or importation of a Product (including the Software), as furnished, infringes the intellectual property rights of such third party, provided that LUXE promptly notifies Aircomnotify each other, in writing, of any acts of infringement relating to the PATENTS immediately after any such claimsacts are brought to its attention or it has otherwise acquired knowledge thereof. The Parties agree to consult with each other as to how to respond to each infringement. If the Parties jointly conclude that legal action should be taken with respect to such infringement, LICENSOR and LICENSEE shall promptly and diligently prosecute such action and shall each pay one-half ( 1/2) of all costs and expenses and receive one-half ( 1/2) of all recoveries and awards with respect to said action. If LICENSEE advises LICENSOR that it does not intend to participate in any legal action, then LICENSOR shall be free to prosecute said action on its behalf and it shall pay all costs and expenses and receive all recoveries and awards therefrom. In the event LICENSOR advises LICENSEE that it will not participate in such legal action, then LICENSEE shall be free to prosecute such action as LICENSEE may deem advisable and in that connection, LICENSOR shall assist LICENSEE in all reasonable ways and at all reasonable times, and provided LUXE gives Aircom the right to defend and/or settle such claim at Aircom’s expense with counsel of Aircom’s choice. LUXE LICENSEE shall cooperate with Aircom, at Aircom’s expense, in the defense or settlement of the claim.
8.2 If the manufacture, use or sale of any of the Products (including the Software) is enjoined or is unable to be used pursuant to a term of settlement, Aircom shall at Aircom’s expense, to do one of the following: (a) obtain for LUXE have the right to use the Productname of LICENSOR as a party to the proceedings, either solely or jointly with LICENSEE's own name, provided that LICENSEE shall pay all costs and expenses and receive all recoveries and awards in connection with such proceedings and further provided, however, that LICENSOR shall always be free, at his own cost and expense, to subsequently join in any pending action. In any event, the parties hereby agree to cooperate fully with each other in the prosecution of any such action.
9.2 In the event that any suit, action, or other proceeding shall be brought against LICENSEE involving any claim of Patent infringement based upon LICENSEE's manufacture, production, use and/or sale of any PRODUCTS, and as often as the same shall occur, LICENSEE shall promptly send to LICENSOR a copy of all proceedings which have been served in such suit, action or other proceeding. In the defence of any such claim, LICENSOR will cooperate fully with LICENSEE, and will, from time to time, make available to LICENSEE all relevant records, papers, information, samples, specimens and other similar material. However, LICENSOR shall bear no obligation to hold harmless LICENSEE from and against any and all liabilities, damages, costs and expenses of any nature whatsoever (bincluding but no limited to attorney's fees) modify incurred by LICENSEE in connection therewith.
9.3 LICENSEE agrees and undertakes not to contest, directly or indirectly, the Product so that it becomes non-infringing ownership or (c) replace it with a non-infringing Product that is substantially in compliance with the specifications and functionality for the Product in all material respects. If none validity of the foregoing is commercially feasible, Aircom shall refund Patents and acknowledges that same are the entire purchase price paid by LUXE for the Product at issue (or for Products more than one (1) year old Aircom shall refund the then-current market value exclusive property of the Product). If Aircom has not completed delivery of such Products, Aircom shall not be obligated to continue delivering such Products. If Aircom reasonably believes a Product is likely to be the subject of a claim, suit, proceeding or injunction, Aircom shall also have the right, at Aircom’s option, to do any of the above. If Aircom elects to replace a Product with a non-infringing Product or to refund the purchase price to LUXE, LUXE shall return the allegedly infringing Product to Aircom, at Aircom’s expense, as soon as practicableLICENSOR.
Appears in 1 contract