Common use of INTELLECTUAL PROPERTY INDEMNITY Clause in Contracts

INTELLECTUAL PROPERTY INDEMNITY. The Seller shall indemnify, defend and hold harmless, the Buyer, its Affiliates and its and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilities, damages, losses, costs or expenses (including, without limitation, attorneys’ fees and expenses) arising out of any suit, claim, or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing of the Claim; (b) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer shall have the right to participate at the Seller’s expense in any such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of any such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunder.

INTELLECTUAL PROPERTY INDEMNITY. The Seller CONTRACTOR shall indemnifydefend, defend indemnify and hold harmlessharmless any OWNER Indemnified Party from and against any and all suits, the Buyer, its Affiliates and its and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilitiesactions, damages, lossesclaims, costs costs, losses or expenses (including, without limitation, attorneys’ fees and expenses) liability of whatsoever kind or character arising out from any infringement of patents or the improper use of other Intellectual Property rights which may occur in connection with CONTRACTOR’s performance of the Work or the ownership or use of any suit, claim, or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing portion of the Claim; (b) gives the Seller sole authorityWork, unless such infringement or improper use is at the Sellerspecific (as opposed to general) direction of OWNER. OWNER’s expense, using counsel reasonably acceptable acceptance of CONTRACTOR’s engineering design and/or proposed or supplied materials or equipment shall not be construed to relieve CONTRACTOR of any obligation hereunder. CONTRACTOR shall have the Buyer, to direct and sole authority for the control of the defense of any and any settlement all such claims or suits brought thereon, and compromise negotiationsOWNER shall render such assistance as CONTRACTOR shall reasonably require in connection therewith; provided, however, that in any suit brought on such claim, the Buyer applicable OWNER Indemnified Party shall have the right to participate be represented by counsel of its own choice at the Seller’s expense in its own expense. Should any such settlement and compromise negotiations that would require any changes to claim materially impair CONTRACTOR’s performance of the Services Work or Equipment or that would require any action or restraint OWNER’s continued use of action by the Buyer and that the Buyer shall have Work, then CONTRACTOR shall, at its own expense, timely procure the right to approve any settlement that would require any changes continue its performance of the Work so as not to materially impair the Services schedule for completion of the Work, or Equipment or that would require any action or restraint timely procure the right to continue use of action by the Buyer (which consent Work, and CONTRACTOR shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of settle any such claim after notice in a manner that reasonably might be expected to interfere with its performance of same from the Buyer, Work or the Buyer shall be entitled but not required to undertake operation of the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderGathering System.

INTELLECTUAL PROPERTY INDEMNITY. The A. Seller shall indemnify, defend indemnify and hold harmless, the Buyer, its Affiliates Buyer and its customers harmless from any and their officersall costs, employees, agents, Financing Parties, and Subcontractors against all liabilities, damagesexpenses (including reasonably attorneys' fees), losses, costs damages or expenses (includingliabilities incurred because of actual or alleged infringement of any patent, without limitationcopyright, attorneys’ fees and expenses) trade secret, trademark, maskwork or other intellectual right arising out of any suit, claim, the use or proceeding (a “Claim”) alleging that sale by Buyer or Buyer's customers of Equipment or Items or Buyer's products manufactured using the Equipment or Services provided under this Contract violate Item(s). Buyer shall notify Seller of such claim or infringe demand and shall permit Seller to participate in the defense or settlement thereof. B. If an injunction issues as a result of any Intellectual Property ifclaim or action, Seller agrees, at its sole cost and expense, and Buyer's option to either: (ai) the procure for Buyer promptly notifies the Seller in writing of the Claim; (b) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer shall have the right to participate at continue using the Seller’s expense in any such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by Items, (ii) replace the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action Items with non-infringing Equipment or restraint Items or (iii) modify the Equipment or Items so they become non-infringing. If, despite Seller's best efforts, none of action by the foregoing options are available, Buyer (which consent may at its option return the Equipment or Item at Seller's sole cost and expense, and Seller shall refund to Buyer the purchase price of the Equipment or Items. C. Seller's obligations pursuant to this Section 13 shall not be unreasonably withheld); apply where: (i) custom Equipment or Items are manufactured to Buyer's detailed design and (c) such design is the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance cause of the Buyer as may be reasonably claim; or (ii) Equipment or Items are used in combination with Equipment, software or other products not supplied, required to defend any or recommended by Seller and such Claim. If the Seller does infringement would not promptly undertake defense of any have occurred but for such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereundercombination. D. THE FOREGOING STATES THE ENTIRE OBLIGATIONS AND REMEDIES FLOWING BETWEEN BUYER AND SELLER ARISING FROM ANY INTELLECTUAL PROPERTY CLAIM BY A THIRD PARTY.

INTELLECTUAL PROPERTY INDEMNITY. The Seller shall indemnifyContractor shall, defend as part of the Fixed Prices, defend, indemnify and hold harmlessharmless Owner Indemnitees against any and all damages, the Buyer, its Affiliates and its and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilities, damages, losses, costs or and expenses (including attorneys’ fees and other professionals’ fees) associated with any claims, suits or proceedings brought against any of the Owner Indemnitees based on an allegation that any Services performed by Contractor or its Subcontractors, the Documentation or the Equipment, or any part thereof, or use thereof, constitutes an infringement or misappropriation of any right of any third party, including, without limitation, attorneys’ fees any copyrights, mask work rights, United States patent rights, trademark rights, trade secret rights, confidentiality rights or other property rights, if Contractor is notified promptly in writing and expenses) arising out given authority, information, and assistance for the defense or settlement of such claim suit or proceeding. Contractor will not be responsible for any suit, claim, settlement of such suit or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller made without its written consent. Contractor shall obtain Owner’s written consent, which may be withheld in writing of the Claim; (b) gives the Seller Owner’s sole authoritydiscretion, at the Seller’s expense, using counsel reasonably acceptable prior to the Buyer, to direct and control the defense and entering into any settlement and compromise negotiations; provided, however, that the Buyer shall have the right to participate at the Seller’s expense in any such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of any such claim after notice suit or proceeding that does not include a complete liability release for all Owner Indemnitees or that would prohibit use of same from any part of the BuyerProject, the Buyer shall be entitled but not required Documentation or the Equipment by any Owner Indemnitees. If the use of the Project, the Documentation or the Equipment, or any part thereof, as a result of any such claim, suit or proceeding is held to undertake constitute infringement, and its use by any of the defense of Owner Indemnitees is enjoined, Contractor shall, at its option, either: (i) procure for such claim and shall have Owner Indemnitees the right to direct continue using the Project, the Documentation or the Equipment, or any part thereof; (ii) replace same with substantially equivalent non-infringing Documentation or Equipment or parts thereof acceptable to Owner; or (iii) modify same in a manner acceptable to Owner and control in conformance with the defense and any settlement and compromise negotiations concerning such claim with counsel selected by functional requirements of this Agreement so it becomes non-infringing. Except to the Buyer and extent that Contractor is a contributory infringer, Contractor shall have no indemnity duty or obligation hereunder to the extent that the Seller Facility, the Documentation or the Equipment furnished hereunder is (A) modified by Owner after acceptance thereof to make it infringing, or (B) combined by Owner with items not furnished hereunder or recommended or approved by Contractor and solely as a result of said modification or combination a claim, suit or proceeding is brought against Owner. Contractor shall have flow down the right requirements of this Section 14.3 and make Owner direct beneficiary of the indemnification obligation in its subcontracts with all Major Subcontractors. If Contractor is unable to approve any settlement (which consent flow down such provision to a Major Subcontractor, Contractor shall notify Owner in writing of such failure prior to entering into a subcontract with such Person and Owner and Contractor shall consult in good faith concerning the options to select an alternative Subcontractor. Notwithstanding anything to the contrary, Contractor’s obligations under this Section 14.3 shall not be unreasonably withheld); all at apply to the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderOwner Equipment.

INTELLECTUAL PROPERTY INDEMNITY. The Seller shall indemnify, defend Lucent will indemnify and hold harmless, the Buyer, its Affiliates harmless CD Radio from and its and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilities, damages, losses, costs or expenses (including, without limitation, attorneys’ fees and expenses) arising out of any suit, claim, or proceeding (claim by a “Claim”) third party against CD Radio alleging that the Equipment or Services provided any Device furnished under this Contract violate Agreement directly infringes any patent, copyright or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing trademark of the Claim; (b) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer such third party. Lucent shall have the right obligation, at its own expense, to participate defend or settle all such claims, subject to CD Radio's reasonable participation, at its own expense, in the Seller’s expense in conduct of any such settlement proceeding or settlement. Lucent shall reimburse CD Radio for any costs incurred at Lucent's written request relating to such claim and compromise negotiations that would require shall pay damages and costs assessed by final judgment against CD Radio, or resulting from settlement, and attributable to such claim. In addition, Lucent will have the right, at any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer time and that the Buyer shall have at its option and expense to: (i) procure for CD Radio the right to approve continue using such Device; (ii) replace or modify any settlement that would require any changes such Device provided or to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance provided to render it free of the Buyer as may be reasonably required to defend any infringement, while maintaining equivalent functionality and complete compatibility with CD Radio's products; or (iii) require return of such ClaimDevice and refund the purchase price. If the Seller does not promptly undertake defense Lucent's obligations hereunder are conditioned upon: (i) CD Radio giving Lucent written notice within thirty (30) days of any such claim after notice asserted against it; (ii) Lucent having complete control of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement thereof, subject to CD Radio's reasonable participation and compromise negotiations concerning consent (in the case of settlement or litigation decisions affecting CD Radio); (iii) CD Radio cooperating fully with Lucent, at Lucent's expense, to facilitate the defense or settlement of such claim claim; and (iv) CD Radio's substantial compliance with counsel selected by the Buyer and that material terms of this Agreement. Notwithstanding the Seller foregoing, Lucent shall have no obligation to defend or settle any claim, and CD Radio shall indemnify and save harmless Lucent and its suppliers and affiliated companies from all costs, expenses, liabilities and claims, for any such claim: (i) arising from Lucent's compliance with CD Radio's specifications, designs or instructions; or (ii) relating to any Device furnished hereunder in combination with item(s), whether or not furnished by Lucent, even if such combination results from the right to approve Device's necessary or inherent use or the use for which the device is purchased. The sale of any settlement (which consent Device by Lucent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderconfer upon CD Radio, or upon anyone claiming under CD Radio, any license (expressly, by implication, by estoppel or otherwise) under any patent claim of Lucent or others covering or relating to any combination, machine or process in which such Device is or might be used, or to any process or method of making such Device. THE FOREGOING STATES THE SOLE AND EXCLUSIVE REMEDY AND OBLIGATION OF THE PARTIES HERETO FOR INFRINGEMENT OR OTHER VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS ARISING OUT OF THIS AGREEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO.

INTELLECTUAL PROPERTY INDEMNITY. The A. Seller shall indemnify, defend indemnify and hold harmless, the Buyer, its Affiliates Buyer and its customers harmless from any and their officersall costs, employees, agents, Financing Parties, and Subcontractors against all liabilities, damagesexpenses (including reasonably attorneys’ fees), losses, costs damages or expenses (includingliabilities incurred because of actual or alleged infringement of any patent, without limitationcopyright, attorneys’ fees and expenses) trade secret, trademark, maskwork or other intellectual right arising out of the use or sale by Buyer or Buyer’s customers of Items or Buyer’s products manufactured using the Item(s). Buyer shall notify Seller of such claim or demand and shall permit Seller to participate in the defense or settlement thereof. B. If an injunction issues as a result of any suitclaim or action, claimSeller agrees, or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property ifat its sole cost and expense, and Buyer’s option to either: (ai) the procure for Buyer promptly notifies the Seller in writing of the Claim; (b) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer shall have the right to participate at continue using the Items, (ii) replace Items with non-infringing Items or (iii) modify the Items so they become non-infringing. If, despite Seller’s expense in any such settlement best efforts, none of the foregoing options are available, Buyer may at its option return the Item at Seller’s sole cost and compromise negotiations that would require any changes expense, and Seller shall refund to Buyer the Services or Equipment or that would require any action or restraint purchase price of action by the Buyer and that the Buyer shall have the right Items. C. Seller’s obligations pursuant to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent this Section 13 shall not be unreasonably withheld); apply where: (i) custom Items are manufactured to Buyer’s detailed design and (c) such design is the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance cause of the Buyer as may be reasonably claim; or (ii) Items are used in combination with equipment, software or other products not supplied, required to defend any or recommended by Seller and such Claim. If the Seller does infringement would not promptly undertake defense of any have occurred but for such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereundercombination. D. THE FOREGOING STATES THE ENTIRE OBLIGATIONS AND REMEDIES FLOWING BETWEEN BUYER AND SELLER ARISING FROM ANY INTELLECTUAL PROPERTY CLAIM BY A THIRD PARTY.

INTELLECTUAL PROPERTY INDEMNITY. The Seller shall indemnify(a) In the event of any claim, action, proceeding or suit by a third party against Buyer alleging an infringement of any patent, copyright, or trademark, or a violation of any trade secret or proprietary rights by reason of the use, in accordance with Supplier's technical specifications, of any Product or Licensed Materials furnished by Supplier to Buyer under this Agreement, Supplier, at its expense, will defend and hold harmless, the Buyer, its Affiliates subject to the conditions and its and their officersexceptions stated below. Supplier will reimburse Buyer for any cost, employeesexpense or attorneys' fees, agents, Financing Partiesincurred at Supplier's written request or authorization, and Subcontractors will indemnify Buyer against all liabilities, damages, losses, costs any liability assessed against Buyer by final judgment or expenses (including, without limitation, attorneys’ fees and expenses) settlement approved by Supplier on account of such infringement or violation arising out of any suit, claim, or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing of the Claim; such use. (b) gives the Seller sole authorityIf Buyer's use shall be enjoined or in Supplier's reasonable opinion is likely to be enjoined, Supplier will, at its expense and at its option, either (1) promptly replace the Seller’s expense, using counsel reasonably acceptable enjoined Product or Licensed Materials furnished pursuant to this Agreement with a suitable substitute free of any infringement; (2) promptly modify it so that it will be free of the Buyer, to direct and control the defense and any settlement and compromise negotiationsinfringement; provided, however, that the or (3) procure for Buyer shall have the a license or other right to participate at use it. If none of the Seller’s expense in foregoing options are practical despite Supplier's commercially reasonable efforts, Supplier will remove the enjoined Product or Licensed Materials and refund to Buyer any such settlement and compromise negotiations that would require amounts paid to Supplier therefor less a reasonable charge for any changes to the Services or Equipment or that would require any action or restraint actual period of action use by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld); and Buyer. (c) Buyer shall give Supplier prompt written notice of all such claims, actions, proceedings or suits alleging infringement or violation and Supplier shall have full and complete authority to assume the sole defense thereof, including appeals, and to settle same. Buyer provides the Sellershall, upon Supplier's request and at the Seller’s Supplier's expense, with such disclosure furnish all information and assistance of reasonably available to Buyer and cooperate in every reasonable way to facilitate the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense and/or settlement of any such claim after notice claim, action, proceeding or suit. (d) No undertaking of Supplier under this Section shall extend to any such alleged infringement or violation to the extent that it: (1) arises from adherence to design modifications, specifications, drawings, or written instructions which Supplier is directed by Buyer to follow; or (2) arises from adherence to instructions to apply Buyer's trademark, trade name or other identification; or (3) resides in a Product or Licensed Materials which are not of Supplier's origin and which are furnished by Buyer to Supplier for use under this Agreement; or (4) relates to uses of Product or Licensed Materials provided by Supplier in combinations with other Product or Licensed Materials, furnished either by Supplier or others where such infringement or violation would not otherwise have occurred. In the foregoing cases numbered (1) through (4), Buyer will defend and save Supplier harmless, subject to the same from terms and conditions and exceptions stated above, with respect to the BuyerSupplier's rights and obligations under this Section. (e) The liability of Supplier and Buyer with respect to any and all claims, the Buyer actions, proceedings or suits by third Parties alleging infringement of patents, trademarks or copyrights or violation of trade secrets or proprietary rights because of, or in connection with, any Products or Licensed Materials furnished pursuant to this Agreement shall be entitled but not required limited to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit specific undertakings contained in any way the Seller’s indemnification obligations hereunderthis Section.

INTELLECTUAL PROPERTY INDEMNITY. The A. Seller shall indemnify, defend indemnify and hold harmless, the Buyer, its Affiliates Buyer and its customers harmless from any and their officersall costs, employees, agents, Financing Parties, and Subcontractors against all liabilities, damagesexpenses (including reasonably attorneys' fees), losses, costs damages or expenses (includingliabilities incurred because of actual or alleged infringement of any patent, without limitationcopyright, attorneys’ fees and expenses) trade secret, trademark, maskwork or other intellectual right arising out of any suit, claim, the use or proceeding (a “Claim”) alleging that sale by Buyer or Buyer's customers of Items or Buyer's products manufactured using the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing of the Claim; (b) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the Item(s). Buyer shall have the right to participate at the Seller’s expense in any such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the notify Seller does not promptly undertake defense of any such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim or demand and shall have permit Seller to participate in the defense or settlement thereof. B. If an injunction issues as a result of any claim or action, Seller agrees, at its sole cost and expense, and Buyer's option to either: (i) procure for Buyer the right to direct ▇▇ ▇▇ntinue using Items, (ii) replace the Items with non-infringing Items or (iii) modify the Items so they become non-infringing. If, despite Seller's best efforts, none of the foregoing options are a▇▇▇▇▇▇le, Buyer may at its option return the Item at Seller's sole cost and control the defense expense, and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have refund to Buyer the right purchase price of the Item. C. Seller's obligations pursuant to approve any settlement (which consent this Section 13 shall not be unreasonably withheld)apply where: (i) custom Items are manufactured to Buyer's detailed design and such design is the cause of the claim; all at the Seller’s expense. For the avoidance of doubtor (ii) Items are used in combination with Equipment, the Buyer’s election to undertake software or other products not to undertake supplied, required or recommended by Seller and such defense will infringement would not limit in any way the Seller’s indemnification obligations hereunderhave occurred but for such combination. D. THE FOREGOING STATES THE ENTIRE OBLIGATIONS AND REMEDIES FLOWING BETWEEN BUYER AND SELLER ARISING FROM ANY INTELLECTUAL PROPERTY CLAIM BY A THIRD PARTY.

INTELLECTUAL PROPERTY INDEMNITY. The Seller SUPPLIER shall indemnify, defend and hold harmlessindemnify JNI and Buyers, the Buyer, its Affiliates and its and their officers, directors and employees, agentsagainst any claims, Financing Parties, and Subcontractors against all liabilities, damages, losses, costs actions or expenses (including, without limitation, attorneys’ fees and expenses) arising out of any suit, claim, or proceeding (a “Claim”) demands alleging that the Equipment manufacture or Services provided under distribution of any SUPPLIER Products infringes any patents, copyright, mask work right or other intellectual property right of any third party. These indemnity obligations of SUPPLIER are contingent upon (a) Buyer giving prompt written notice to SUPPLIER of any such claim, action or demand, (b) Buyer allowing SUPPLIER to control the defense and related settlement negotiations, and (c) Buyer’s cooperation in the defense of any such claim. SUPPLIER shall have no obligation hereunder for any such claims, actions, or demands which result from: (1) JNI’s use of the SUPPLIER Products in combination with products not purchased from SUPPLIER (but only if and to the extent that both (A) such violation or infringement is dependent upon such combination, and (B) the SUPPLIER Product can readily be used for its intended purpose without infringing); and (2) the modification or attempted modification of the SUPPLIER Products by parties other than SUPPLIER. Notwithstanding any of the provisions of the Agreement to the contrary, the provisions of this Contract violate Section 10 shall constitute the sole remedy of the Buyers with respect to the above mentioned infringement allegations. Without derogating from the above, should the use by Buyers of any SUPPLIER Products purchased from SUPPLIER be enjoined, be threatened by injunction, or infringe be the subject of any Intellectual Property iflegal proceeding, SUPPLIER may, at its sole expense, either: (a) the Buyer promptly notifies the Seller in writing of the Claimsubstitute fully equivalent non-infringing SUPPLIER Products; (b) gives modify the Seller sole authority, at infringing SUPPLIER Products so that they no longer infringe but remain fully equivalent; (c) obtain for the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct Buyers and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer shall have their customers the right to participate at the Seller’s expense in any such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance continue use of the Buyer as may be reasonably required to defend any such Claim. If SUPPLIER Products; or (d) if none of the Seller does not promptly undertake defense of any such claim after notice of same from foregoing is possible, refund the Buyer, purchase price paid for the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderinfringing SUPPLIER Products.

INTELLECTUAL PROPERTY INDEMNITY. The Seller shall indemnifywill: (i) defend or settle, defend at its option and hold harmlessexpense, any claim against Maxtor alleging that any Product furnished under this Agreement directly infringes any patent, copyright or trademark; (ii) reimburse Maxtor for any costs incurred at Seller's written request relating to such claim; and (iii) pay damages and costs assessed by final judgment against Maxtor and attributable to such claim. In addition, Seller will have the Buyerright, at any time and at its Affiliates option and its expense to: (i) procure for Maxtor the right to continue using such Product; (ii) replace or modify any such Product provided or to be provided to be free of the infringement; or (iii) require return of such Product and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilities, damages, losses, costs or expenses refund the purchase price. Seller's obligations hereunder are conditioned upon: (including, without limitation, attorneys’ fees and expensesi) arising out Maxtor giving Seller written notice within thirty (30) days of any suit, such claim, or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing of the Claim; (bii) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and having complete control of the defense and any settlement and compromise negotiations; providedthereof, however, that (iii) Maxtor cooperating fully with Seller to facilitate the Buyer shall have the right to participate at the Seller’s expense in any defense or settlement of such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld)claim; and (civ) Maxtor's full compliance with this Agreement. Notwithstanding the Buyer provides the Sellerforegoing, at the Seller’s expense, with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of any such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have no obligation to defend or settle any claim, and Maxtor shall indemnify and save harmless Seller and its suppliers and affiliated companies from all costs, expenses, liabilities and claims, for any such claim: (i) arising from Seller's compliance with Maxtor's specifications, designs or instructions; or (ii) relating to any Product furnished hereunder in combination with item(s), whether or not furnished by Seller, even if such combination results from the right to approve Product's necessary or inherent use or the use for which the Product is purchased. The sale of any settlement (which consent Product by Seller shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderconfer upon Maxtor, or upon anyone claiming under Maxtor, any license (expressly, by implication, by estoppel or otherwise) under any patent claim of Seller or others covering or relating to any combination, machine or process in which such product is or might be used, or to any process or method of making such product. THE FOREGOING STATES THE SOLE AND EXCLUSIVE REMEDY AND OBLIGATION OF THE PARTIES HERETO FOR INFRINGE OR OTHER VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS ARISING OUT OF THIS AGREEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO.

INTELLECTUAL PROPERTY INDEMNITY. The Seller SUPPLIER shall indemnifydefend, defend indemnify and hold harmless, the Buyerharmless VA LINUX, its Affiliates Representatives, Contract Manufacturers, and/or customers against any claim that the Product allegedly infringes any United States or Canadian patent, copyright, mask work right, trademark, trade secret, or any other intellectual property right of any third party. If any such claim of infringement is made, SUPPLIER, at SUPPLIER's expense, shall defend against and its pay any and their officersall costs, employees, agents, Financing Partiesexpenses (including reasonable fees of attorneys and other retained professionals), and Subcontractors against all liabilities, damages, losses, costs or expenses (including, without limitation, attorneys’ fees and expenses) damages of any kind arising out of such claim or resulting from any suitsettlement thereof, claimwhether or not that claim is successful, or proceeding (a “Claim”) alleging provided that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property ifVA LINUX: (a) the Buyer promptly notifies the Seller in writing gives SUPPLIER prompt written notice of the Claimsuch claim; (b) gives the Seller sole authoritycooperates with SUPPLIER, at SUPPLIER's expense for reasonable out of pocket expenses incurred by VA LINUX, in the Seller’s expense, using counsel reasonably acceptable defense of such claim; and (c) allows SUPPLIER to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer of such claim. SUPPLIER shall have the right to participate at the Seller’s expense in any such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve not enter into any settlement that would require any changes to the Services affects VA LINUX's rights or Equipment or that would require any action or restraint of action by the Buyer (which interests without VA LINUX's prior written consent. Such consent shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, withheld or delayed. SUPPLIER shall not be responsible for any settlement made by VA LINUX without SUPPLIER's prior written consent. Such consent shall not be unreasonably withheld or delayed. VA LINUX may choose to participate with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of any such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake SUPPLIER in the defense of such claim and at its own expense, but such participation shall have the be without prejudice to VA LINUX's right to direct reimbursement from SUPPLIER of reasonable costs, expenses (including reasonable fees of attorneys and control the defense other retained professionals prior to VA LINUX's participation), and awarded damages of any settlement and compromise negotiations concerning kind that VA LINUX may have been ordered to pay as a result of such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderclaim.

INTELLECTUAL PROPERTY INDEMNITY. The Seller CONTRACTOR shall indemnifydefend, defend indemnify and hold harmlessharmless any OWNER Indemnified Party from and against any and all suits, the Buyer, its Affiliates and its and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilitiesactions, damages, lossesclaims, costs costs, losses or expenses (including, without limitation, attorneys’ fees and expenses) liability of whatsoever kind or character arising out from any infringement of patents or the improper use of other Intellectual Property rights which may occur in connection with CONTRACTOR’s performance of the Work or the ownership or use of any suit, claim, or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing portion of the Claim; (b) gives the Seller sole authorityWork, unless such infringement or improper use is at the Sellerspecific (as opposed to general) direction of OWNER. OWNER’s expense, using counsel reasonably acceptable acceptance of CONTRACTOR’s engineering design and/or proposed or supplied materials or equipment shall not be construed to relieve CONTRACTOR of any obligation hereunder. CONTRACTOR shall have the Buyer, to direct and sole authority for the control of the defense of any and any settlement all such claims or suits brought thereon, and compromise negotiationsOWNER shall render such assistance as CONTRACTOR shall reasonably require in connection therewith; provided, however, that in any suit brought on such claim, the Buyer applicable OWNER Indemnified Party shall have the right to participate be represented by counsel of its own choice at the Seller’s expense in its own expense. Should any such settlement and compromise negotiations that would require any changes to claim materially impair CONTRACTOR’s performance of the Services Work or Equipment or that would require any action or restraint OWNER’s continued use of action by the Buyer and that the Buyer shall have Work, then CONTRACTOR shall, at its own expense, timely procure the right to approve any settlement that would require any changes continue its performance of the Work so as not to materially impair the Services schedule for completion of the Work, or Equipment or that would require any action or restraint timely procure the right to continue use of action by the Buyer (which consent Work, and CONTRACTOR shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of settle any such claim after notice in a manner that reasonably might be expected to interfere with its performance of same from the Buyer, Work or the Buyer shall be entitled but not required to undertake operation of the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expenseTransmission Line. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunder.SD\624074.9

INTELLECTUAL PROPERTY INDEMNITY. The Seller shall indemnifywill: (i) defend or settle, defend at its option and hold harmlessexpense, any claim against Buyer alleging that any Device furnished under this Agreement directly infringes any patent, copyright or trademark; (ii) reimburse Buyer for any costs incurred at Seller's written request relating to such claim; and (iii) pay damages and costs assessed by final judgment against Buyer and attributable to such claim. In addition, Seller will have the right, at any time and at its option and expense to procure for Buyer the right to continue using such Device. Seller's obligations hereunder are conditioned upon: (i) Buyer giving Seller written notice within thirty (30) days of Buyer, its Affiliates and its and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilities, damages, losses, costs or expenses (including, without limitation, attorneys’ fees and expenses) arising out 's receipt of any suit, such claim, or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing of the Claim; (bii) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and having complete control of the defense and any settlement thereof; (iii) Buyer cooperating fully with Seller to facilitate the defense or settlement of such claim; and compromise negotiations; provided(iv) Buyer's full compliance with ITS MATERIAL OBLIGATIONS UNDER this section of the Agreement. Notwithstanding the foregoing, however, that the Buyer Seller shall have no obligation to defend or settle any claim: (i) SOLELY arising from Seller's compliance with Buyer's specifications, designs or instructions; or (ii) SOLELY relating to any Device furnished hereunder in combination with item(s) furnished or specified by parties other than Seller, even if such combination results from the Device's necessary or inherent use or the use for which the Device is purchased. (i) Seller giving Buyer written notice within thirty (30) days of Seller's receipt of such claim; (ii) Buyer having complete control of the defense and settlement thereof; (iii) Seller cooperating fully with Buyer to facilitate the defense or settlement of such claim; and (iv) Seller's full compliance with ITS MATERIAL OBLIGATIONS UNDER this section of the Agreement. SHOULD ANY CLAIM OR CLAIMS UNDER THE ABOVE PARAGRAPHS CAUSE THE INDEMNIFICATION OBLIGATIONS OF BOTH PARTIES TO COME INTO OPERATION THE PARTIES SHALL EQUITABLY ALLOCATE THE DEFENSE AND INDEMNITY OBLIGATIONS BETWEEN THEMSELVES. The sale of any Device by Seller shall not in any way confer upon Buyer, or upon anyone claiming under Buyer, any license (expressly, by implication, by estoppel or otherwise) under any patent claim of Seller or others covering or relating to any process or method of making such Device. Notwithstanding the foregoing if Seller now or hereafter has, pursuant to its license agreements with third parties, the right to participate at immunize or sublicense the intellectual property covered by such third party agreements in connection with Seller’s expense in any such settlement 's sale of products of the same nature as the Devices, Buyer and compromise negotiations that would require any changes its customer(s) shall, pursuant to this Agreement, with respect to the Services Devices, be immunized or Equipment sublicensed. The granting of immunity or that would require any action or restraint of action by the Buyer a sublicense shall be at Seller's sole discretion, not to be exercised unreasonably, and that the Buyer shall have the right at no cost to approve any settlement that would require any changes Seller and only to the Services extent Seller may so immunize or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld); and (c) the Buyer provides the Sellersublicense. THE FOREGOING STATES THE SOLE AND EXCLUSIVE REMEDY AND OBLIGATION OF THE PARTIES HERETO FOR INFRINGEMENT OR OTHER VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS ARISING OUT OF THIS AGREEMENT AND IS IN LIEU OF ALL WARRANTIES, at the Seller’s expenseEXPRESS, with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of any such claim after notice of same from the BuyerIMPLIED OR STATUTORY, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderIN REGARD THERETO.

INTELLECTUAL PROPERTY INDEMNITY. The Seller shall indemnify, defend Contractor agrees to indemnify and hold harmless, harmless the Buyer, State of Tennessee as well as its Affiliates and its and their officers, employees, agents, Financing Parties, and Subcontractors employees from and against any and all liabilities, damages, losses, costs claims or expenses (including, without limitation, attorneys’ fees and expenses) suits which may be brought against the State concerning or arising out of any suitclaim of an alleged patent, claimcopyright, trade secret or proceeding (a “Claim”) alleging that other intellectual property infringement. In any such claim or action brought against the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) State, the Buyer promptly notifies Contractor shall satisfy and indemnify the Seller in writing State for the amount of the Claim; (b) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement or final judgment, and compromise negotiations; provided, however, that the Buyer Contractor shall have be responsible for all legal or other fees or expenses incurred by the right to participate at the Seller’s expense in State arising from any such settlement and compromise negotiations that would require any changes to claim. The State shall give the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense Contractor notice of any such claim after notice of same from the Buyeror suit, however, the Buyer failure of the State to give such notice shall be entitled but only relieve Contractor of its obligations under this Section to the extent Contractor FDQ GHPRQVWUDWH DFWXDO SUHMXGLFH DULVLQJ IURP WKH 6 not required to undertake grant the defense of such claim and shall have Contractor, through its attorneys, the right to direct and control represent the defense and State of Tennessee in any settlement and compromise negotiations concerning legal matter, as provided in Tenn. Code ▇▇▇. § 8-6-106. In addition to the above indemnity, if the 6WDWusHe¶oVf a ny deliverable, or any portion thereof, provided under this Contract, is or is likely to be enjoined by order of a court of competent jurisdiction as such claim an infringement or unauthorized use, the Contractor, at its expense, shall: (x) procure for the State the continued use of such deliverable; (y) replace such deliverable with counsel selected a non-infringing counterpart; or (z) modify such deliverable so it becomes non-infringing; provided that, if (y) or (z) is the option chosen by the Buyer and that Contractor, the Seller shall have replacement or modified deliverable must be capable of performing substantially the same function. Notwithstanding the foregoing, the State retains the right to approve terminate the Contract in accordance with Section D.6 hereunder in the event of such infringement or unauthorized use, and any settlement (which consent such exercise of these allowable options by Contractor shall not be unreasonably withheld)relieve Contractor of its indemnity obligations under this Section. 7KH IRUJRLQJ LQGHPQLW\ GRHV QRW DSSO\ WR WKH H[WHQW (i) use of the deliverable not in accordance with instructions, documentations, or specifications ³0LV(Xii)ValtHer´ati on , m odification or revision of the Deliverables not expressly authorized by the &RQWUDFWRU (i ii)³fa$ilurOe WtoHusUe DorWimLplRemQe´nt co rre ctions or enhancements to the Deliverables made available by the Contractor to the State at no additional cost to the State, except where such failure to use or implement corrections or enhancements is a result of 6WDWteHrm¶inVation in accordance with the preceding paragraph; all at or (iv) combination of the Seller’s expense. For Deliverables with materials not provided, specified, or approved by the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderContractor.

INTELLECTUAL PROPERTY INDEMNITY. The Seller shall indemnify, defend and hold harmless, the Buyer, its Affiliates and its and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilities, damages, losses, costs or expenses (including, without limitation, attorneys’ fees and expensesa) arising out of With respect to any suit, claim, or proceeding (a “Claim”) claim alleging that the Equipment normal use, or Services provided sale of any Product (including its related documentation) furnished under this Contract violate Agreement is an infringement of any patent, copyright, mask work or infringe any Intellectual Property iftrademark or a misappropriation of a trade secret, Seller will, subject to the conditions and exceptions stated below: (ai) the at its option, defend or settle such claim, at its expense, (ii) reimburse Buyer promptly notifies the Seller in writing for any reasonable costs incurred at Seller's written request (including reasonable attorneys' fees) relating to such claim; and (iii) pay damages and costs assessed by final judgment of the Claim; such claim against such Product. (b) gives the Seller's obligations hereunder are conditioned upon: (i) Buyer giving Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct written prompt notice of any such claim; (ii) Seller having full and complete control of the defense and/or settlement thereof, including appeals; and any (iii) Buyer cooperating fully with Seller to facilitate the defense or settlement and compromise negotiations; provided, however, that the Buyer shall have the right to participate at the Seller’s expense in any of such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require claim. (c) If any action or restraint of action by the proceeding shall be brought in connection with any liability or claim to be indemnified under this Agreement, Seller shall keep Buyer and that the Buyer shall have the right to approve any settlement that would require any changes apprised as to the Services status of the defense or Equipment or that would require any settlement of such action or restraint of action by proceeding. (d) Notwithstanding the Buyer (which consent shall not be unreasonably withheld); and (c) the Buyer provides the Sellerforegoing, at the Seller’s expense, with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of any such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have no obligation under this Section 19, and Buyer shall (except with respect to item (ii) below) defend, indemnify and save harmless Seller and its Sellers and affiliated companies, under the right terms provided herein, from all costs, expenses, liabilities and claims, for any such claim, action, proceeding or suit alleging infringement: (i) arising from Seller's compliance with specifications, modifications, drawings, designs or instructions furnished by, or on behalf of, Buyer; or (ii) arising as a result of the combination, operation or use of any Product (including documentation) furnished hereunder, or any component thereto, with item(s) not furnished by Seller or furnished by Seller but which combination was not recommended by Seller; or (iii) arises from adherence to approve instructions to apply Buyer's trademark, trade name or other company identification; or (iv) resides in item(s) that is furnished by Buyer to Seller for use under this Agreement; or (v) is based upon modification made by Buyer of any settlement Product or component thereof (which consent including software and documentation). (e) The sale of any Product by Seller shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way confer upon Buyer, or upon anyone claiming under Buyer, any license (expressly, by implication, or otherwise) under any patent claim of Seller or others covering or relating to any combination, machine or process in which such Product is or might be used, or to any process or method of making such Product. (f) Notwithstanding any other provision in this Agreement, Seller's total liability to Buyer for all claims, actions, proceedings or suits alleging infringement of intellectual property rights because of, or in connection with, any items furnished pursuant to this Agreement shall be limited to the Seller’s indemnification obligations hereunderspecific undertakings contained in this Section 19.

INTELLECTUAL PROPERTY INDEMNITY. The Seller shall indemnifywill: (i) defend or settle, defend at its option and hold harmlessexpense, any claim against Maxtor alleging that any Product furnished under this Agreement directly infringes any patent, copyright or trademark; (ii) reimburse Maxtor for any costs incurred at Seller's written request relating to such claim; and (iii) pay damages and costs assessed by final judgment against Maxtor and attributable to such claim. In addition, Seller will have the Buyerright, at any time and at its Affiliates option and its expense to: (i) procure for Maxtor the right to continue using such Product; (ii) replace or modify any such Product provided or to be provided to be free of the infringement; or (iii) require return of such Product and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilities, damages, losses, costs or expenses refund the purchase price. Seller's obligations hereunder are conditioned upon: (including, without limitation, attorneys’ fees and expensesi) arising out Maxtor giving Seller written notice within thirty (30) days of any suit, such claim, or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing of the Claim; (bii) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and having complete control of the defense and any settlement and compromise negotiationsthereof; provided, however, that (iii) Maxtor cooperating fully with Seller to facilitate the Buyer shall have the right to participate at the Seller’s expense in any defense or settlement of such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld)claim; and (civ) Maxtor's full compliance with this Agreement. Notwithstanding the Buyer provides the Sellerforegoing, at the Seller’s expense, with such disclosure and assistance of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of any such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have no obligation to defend or settle any claim, and Maxtor shall indemnify and save harmless Seller and its suppliers and affiliated companies from all costs, expenses, liabilities and claims, for any such claim: (i) arising from Seller's compliance with Maxtor's specifications, designs or instructions; or (ii) relating to any Product furnished hereunder in combination with item(s), whether or not furnished by Seller, even if such combination results from the right to approve Product's necessary or inherent use or the use for which the Product is purchased. The sale of any settlement (which consent Product by Seller shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderconfer upon Maxtor, or upon anyone claiming under Maxtor, any license (expressly, by implication, by estoppel or otherwise) under any patent claim of Seller or others covering or relating to any combination, machine or process in which such product is or might be used, or to any process or method of making such product. THE FOREGOING STATES THE SOLE AND EXCLUSIVE REMEDY AND OBLIGATION OF THE PARTIES HERETO FOR INFRINGEMENT OR OTHER VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS ARISING OUT OF THIS AGREEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO.

INTELLECTUAL PROPERTY INDEMNITY. The Seller Textmetrics shall indemnifyindemnify and save harmless Customer from and against any and all actions, claims, demands, causes of actions and/or liability (including legal fees and disbursements) arising from any suit or proceeding brought against Customer insofar as it is based on a claim that the Deliverable, or any part thereof, provided by Textmetrics under this Agreement constitutes an infringement of any right of intellectual property, including but not limited to patent or copyright, if Textmetrics is notified as soon as possible in writing and given sole authority to defend and hold harmlesssuch claim. Upon Textmetricsʼ request, the Buyer, its Affiliates and its and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilities, damages, losses, costs or expenses (including, without limitation, attorneys’ fees and expenses) arising out of any suit, claim, or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing of the Claim; (b) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer Customer shall have the right to participate at the Seller’s expense in any provide such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure information and assistance of the Buyer to Textmetrics (at Textmetricsʼ expense) as may be is reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of any such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake necessary for the defense of such claim a suit or proceeding. The Customer shall make no statement, representation or otherwise to any third party regarding any such suit or claim. In case the Deliverable, or any part thereof, is in such suit or proceeding, held to constitute an infringement and shall have the use of the Deliverable or any part thereof is enjoined, Textmetrics shall, in addition to the foregoing and at its own expense and sole option, either procure for Customer the right to direct continue using the Deliverable or part thereof, or replace same with non-infringing products or services of equivalent functionality and control performance to those contracted for, or modify the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent Deliverable so they becomes non-infringing. Textmetrics shall not be unreasonably withheld); all at liable to Customer under any provision of this clause if any intellectual property infringement claim is based upon the Seller’s expenseuse of the Deliverable in a manner for which the Deliverable or part were not designed provided, and to the extent (i) such use does not reasonably constitutes an intended or expected use and (ii) the infringement claim would have been avoided but for such use. For the avoidance This indemnity shall continue to apply after termination of doubt, the Buyer’s election this Agreement and any applicable period of prescription shall not commence to undertake or not to undertake such defense will not limit in run until Customer has received notice of any way the Seller’s indemnification obligations hereunderinfringement claim.

INTELLECTUAL PROPERTY INDEMNITY. The (a) Seller shall defend, indemnify, defend and hold harmless, the Buyer, its Affiliates and its and their ▇▇▇▇▇’s officers, agents, employees, agents, Financing Parties, and Subcontractors customers harmless against all claims, suits, actions, awards (including, but not limited to, awards based on intentional infringement of patents known at the time of such infringement, exceeding actual damages and/or including attorney fees and/or costs), liabilities, damages, lossescosts, costs and attorneys’ fees related to the actual or expenses alleged infringement of any United States or foreign intellectual property right (including, without limitationbut not limited to, attorneys’ fees any right in a patent copyright, industrial design, or semiconductor mask work, or based on misappropriation or wrongful use of information or documents) and expenses) arising out of the manufacturing, sale, or use of Work delivered under the Subcontract by either Buyer or Buyer’s Customer. Buyer and/or Buyer’s Customer will notify Seller of any claims, suits or actions; and Seller shall, at its own expense, fully defend such claims, suit, claimor action on behalf of the indemnified parties identified in this provision, obtain such licenses as are necessary to remove such infringement, or proceeding (a “Claim”) alleging that replace the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing of the Claim; (b) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the infringing Work. Buyer shall have the right to participate in the defense at the Seller’s expense in any such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer its own expense. (b) Seller shall have no obligation to indemnify Buyer for infringement arising from the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint compliance of action Seller's design with specifications issued by the Buyer (which consent where infringement could not be avoided in complying with such specifications. The exception above shall not be unreasonably withheld); and apply if the infringement arises out of adherence to one or more industry standards or regulatory requirements. (c) In the event that a court of law, administrative body, or other entity convened for the purpose of resolving such a matter, including through the use of alternative dispute resolution, determines that Seller has violated the protections afforded to a third party’s intellectual property under statute, regulation, or contract, Seller shall use all reasonable efforts to obtain a license for Buyer provides the Sellerthat permits Buyer’s use of any intellectual property included in any Work related to this Subcontract. If Seller is unable to obtain such a license, Seller shall, at its own expense, modify its Work under this Subcontract to eliminate the infringing intellectual property. If ▇▇▇▇▇▇ becomes responsible for modifying any Work pursuant to this provision, Seller shall first propose an alternate method of performance that is at least as beneficial to Buyer and ▇▇▇▇▇’s Customer as the method of performance originally contemplated in the Subcontract. Such a Seller proposal shall be first approved by Buyer prior to Seller commencing its effort to modify its Work under this Subcontract.‌ (d) Notwithstanding the foregoing, when this Subcontract is performed under the Authorization and Consent of the Government to infringe third-party U.S. patents, Seller’s expenseliability for infringement of such patents related to, with such disclosure or in connection with, the performance of this Subcontract shall be limited to the extent Buyer’s liability is limited to the Government under the terms and assistance conditions of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of any such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderPrime Contract.

INTELLECTUAL PROPERTY INDEMNITY. The (a) Seller shall defend, indemnify, defend and hold harmless, the Buyer, its Affiliates and its and their ▇▇▇▇▇’s officers, agents, employees, agents, Financing Parties, and Subcontractors customers harmless against all claims, suits, actions, awards (including, but not limited to, awards based on intentional infringement of patents known at the time of such infringement, exceeding actual damages and/or including attorney fees and/or costs), liabilities, damages, lossescosts, costs and attorneys’ fees related to the actual or expenses alleged infringement of any United States or foreign intellectual property right (including, without limitationbut not limited to, attorneys’ fees any right in a patent copyright, industrial design, or semiconductor mask work, or based on misappropriation or wrongful use of information or documents) and expenses) arising out of the manufacturing, sale, or use of Work delivered under the Subcontract by either Buyer or Buyer’s Customer. Buyer and/or Buyer’s Customer will notify Seller of any claims, suits or actions; and Seller shall, at its own expense, fully defend such claims, suit, claimor action on behalf of the indemnified parties identified in this provision, obtain such licenses as are necessary to remove such infringement, or proceeding (a “Claim”) alleging that replace the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing of the Claim; (b) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the infringing Work. Buyer shall have the right to participate in the defense at the Seller’s expense in any such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer its own expense. (b) Seller shall have no obligation to indemnify Buyer for infringement arising from the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint compliance of action Seller's design with specifications issued by the Buyer (which consent where infringement could not be avoided in complying with such specifications. The exception above shall not be unreasonably withheld); and apply if the infringement arises out of adherence to one or more industry standards or regulatory requirements. (c) In the event that a court of law, administrative body, or other entity convened for the purpose of resolving such a matter, including through the use of alternative dispute resolution, determines that Seller has violated the protections afforded to a third party’s intellectual property under statute, regulation, or contract, Seller shall use all reasonable efforts to obtain a license for Buyer provides the Sellerthat permits Buyer’s use of any intellectual property included in any Work related to this Subcontract. If Seller is unable to obtain such a license, Seller shall, at its own expense, modify its Work under this Subcontract to eliminate the infringing intellectual property. If ▇▇▇▇▇▇ becomes responsible for modifying any Work pursuant to this provision, Seller shall first propose an alternate method of performance that is at least as beneficial to Buyer and ▇▇▇▇▇’s Customer as the method of performance originally contemplated in the Subcontract. Such a Seller proposal shall be first approved by Buyer prior to Seller commencing its effort to modify its Work under this Subcontract.‌ (d) Notwithstanding the foregoing, when this Subcontract is performed under the Authorization and Consent of the Government to infringe third-party U.S. patents, Seller’s expenseliability for infringement of such patents related to, with such disclosure or in connection with, the performance of this Subcontract shall be limited to the extent Buyer’s liability is limited to the Government under the terms and assistance conditions of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of any such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunder.Prime Contract.‌

INTELLECTUAL PROPERTY INDEMNITY. The Seller Ehave shall indemnifydefend at its own expense any claim, defend and hold harmlessproceeding or suit (a “Claim”) brought against CHT and/or any of its directors, the Buyer, its Affiliates and its and their officers, employees, agents, Financing subcontractors, affiliates and/or End Users (collectively, the “CHT Indemnified Parties”) to the extent such Claim alleges that the Ehave Companion Solution furnished hereunder or the use thereof by CHT or its End Users as authorized hereunder or in any Subscription Agreement infringes any copyright, Canadian patent, or registered trademark of a third person, and Subcontractors will indemnify and hold harmless the CHT Indemnified Parties from and against any and all related liabilities, damagescosts, losses, costs or damages and expenses (including, without limitation, attorneys’ fees and expensesincluding reasonable legal fees) arising out of or in connection with or relating to any suitsuch Claim, claimprovided that: (i) Ehave is given prompt written notice of the Claim or of any allegations or circumstances known to CHT which could reasonably result in a Claim; (ii) Ehave is given all reasonable information and assistance from CHT, or proceeding at Ehave’s expense, which Ehave may require to defend the Claim; (a “Claim”iii) alleging that Ehave is given sole control of the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing defence of the Claim, and all negotiations for the settlement or compromise thereof, provided that Ehave shall promptly engage competent counsel and initiate defence in a professional manner and CHT may observe or participate in such proceedings with its own counsel at its own expense; and (biv) gives the Seller sole authorityalleged infringement does not result from any non-permitted uses, alterations, modifications or enhancements carried out by CHT, any End User or on its or their behalf by a third person (other than any Ehave personnel or contractors). If such Claim has occurred, or in Ehave’s opinion is likely to occur, without limiting Ehave’s obligation to defend and indemnify the CHT Indemnified Parties as aforesaid, Ehave may, at the Seller’s its option and expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer shall have either procure for CHT the right to participate at continue using the Seller’s expense Ehave Companion Solution in any such settlement and compromise negotiations accordance with this Agreement or modify or replace the same so that would require any changes to the Services it becomes non-infringing without loss of functionality, or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall not be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance if none of the Buyer as may be foregoing alternatives is reasonably required available and at Ehave’s discretion, discontinue the use of the Ehave Companion Solution on not less than sixty (60) Business Days’ prior written notice to defend CHT and its End Users. The foregoing states the entire obligations of Ehave with respect to any such Claim. If the Seller does not promptly undertake defense infringement of Intellectual Property Rights of any such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderthird Person.

INTELLECTUAL PROPERTY INDEMNITY. The Seller shall In addition to and without limiting the generality of Section 10.1, Contractor expressly agrees to indemnify, defend and hold harmlessthe Authorized Purchasers, the Buyerharmless from any and all third party claims, its Affiliates and its and their officerssuits, employeesactions, agents, Financing Parties, and Subcontractors against all liabilitieslosses, damages, lossesliabilities, costs or and expenses (includingof any nature whatsoever resulting from, without limitation, attorneys’ fees and expenses) arising out of or relating to any suitclaims that the Deliverables or use thereof infringe or violate any patent, claimcopyright, trade secret, trademark, trade dress, mask work, utility design, or proceeding other proprietary right (a collectively, “ClaimIntellectual Property Rights”) alleging of any third party. If Contractor believes at any time that the Equipment one (1) or Services provided under this Contract violate or more Deliverables infringe any a third party’s Intellectual Property if: Rights, Contractor may upon receipt of Authorized Purchaser’s prior written consent, which Authorized Purchaser will not unreasonably withhold, (ai) replace an infringing item with a non-infringing item that meets or exceeds the Buyer promptly notifies the Seller in writing performance and functionality of the Claimreplaced item; or (bii) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer shall have obtain for Authorized Purchaser the right to participate at continue to use the Seller’s expense in infringing item; or (iii) modify the infringing item to be non-infringing, provided that, following any such settlement and compromise negotiations that would require any changes replacement or modification made pursuant to the Services foregoing, the Deliverable(s) continues to function in material conformance with the specifications and meet the Acceptance Criteria set forth in this Contract. Contractor’s failure or Equipment or that would require inability to accomplish any action or restraint of action by the Buyer foregoing will be deemed a material breach of this Contract, and that the Buyer shall have the right Authorized Purchaser may pursue any rights and remedies available to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent shall it under this Contract, including termination. Contractor will not be unreasonably withheld); and (c) liable under this Section 10.2 for any claim for infringement based solely on the Buyer provides the Seller, at the Sellerfollowing: 10.2.1. Authorized Purchaser’s expense, with such disclosure and assistance modification of the Buyer Deliverables other than as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of any such claim after notice of same from the Buyercontemplated by this Contract, the Buyer shall be entitled but not required to undertake Deliverable or its specifications, or as otherwise authorized by Contractor in writing; 10.2.2. Use of the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubtDeliverables in a manner other than as contemplated in this Contract, the Buyer’s election to undertake Deliverable or not to undertake such defense will not limit its specifications, or as otherwise authorized by Contractor in any way writing; or 10.2.3. Use of the Seller’s indemnification obligations hereunderDeliverables in combination, operation, or use of with other materials or products other than as contemplated by this Contract, the Deliverable or its specifications, or as otherwise authorized by Contractor in writing.

INTELLECTUAL PROPERTY INDEMNITY. The ‌ (a) Seller shall defend, indemnify, defend and hold harmless, the Buyer, its Affiliates and its and their ▇▇▇▇▇’s officers, agents, employees, agents, Financing Parties, and Subcontractors customers harmless against all claims, suits, actions, awards (including, but not limited to, awards based on intentional infringement of patents known at the time of such infringement, exceeding actual damages and/or including attorney fees and/or costs), liabilities, damages, lossescosts, costs and attorneys’ fees related to the actual or expenses alleged infringement of any United States or foreign intellectual property right (including, without limitationbut not limited to, attorneys’ fees any right in a patent copyright, industrial design, or semiconductor mask work, or based on misappropriation or wrongful use of information or documents) and expenses) arising out of the manufacturing, sale, or use of Work delivered under the Subcontract by either Buyer or Buyer’s Customer. Buyer and/or Buyer’s Customer will notify Seller of any claims, suits or actions; and Seller shall, at its own expense, fully defend such claims, suit, claimor action on behalf of the indemnified parties identified in this provision, obtain such licenses as are necessary to remove such infringement, or proceeding (a “Claim”) alleging that replace the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) the Buyer promptly notifies the Seller in writing of the Claim; (b) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the infringing Work. Buyer shall have the right to participate in the defense at its own expense.‌ (b) Seller shall have no obligation to indemnify Buyer for infringement arising from the compliance of Seller’s expense design with specifications issued by Buyer where infringement could not be avoided in any complying with such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent specifications. The exception above shall not be unreasonably withheld); and apply if the infringement arises out of adherence to one or more industry standards or regulatory requirements. (c) In the event that a court of law, administrative body, or other entity convened for the purpose of resolving such a matter, including through the use of alternative dispute resolution, determines that Seller has violated the protections afforded to a third party’s intellectual property under statute, regulation, or contract, Seller shall use all reasonable efforts to obtain a license for Buyer provides the Sellerthat permits Buyer’s use of any intellectual property included in any Work related to this Subcontract. If Seller is unable to obtain such a license, Seller shall, at its own expense, modify its Work under this Subcontract to eliminate the infringing intellectual property. If ▇▇▇▇▇▇ becomes responsible for modifying any Work pursuant to this provision, Seller shall first propose an alternate method of performance that is at least as beneficial to Buyer and ▇▇▇▇▇’s Customer as the method of performance originally contemplated in the Subcontract. Such a Seller proposal shall be first approved by Buyer prior to Seller commencing its effort to modify its Work under this Subcontract. (d) Notwithstanding the foregoing, when this Subcontract is performed under the Authorization and Consent of the Government to infringe third-party U.S. patents, Seller’s expenseliability for infringement of such patents related to, with such disclosure or in connection with, the performance of this Subcontract shall be limited to the extent Buyer’s liability is limited to the Government under the terms and assistance conditions of the Buyer as may be reasonably required to defend any such Claim. If the Seller does not promptly undertake defense of any such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunder.Prime Contract.‌‌

INTELLECTUAL PROPERTY INDEMNITY. The Seller shall indemnify, defend and hold harmless, 9.1 In the Buyer, its Affiliates and its and their officers, employees, agents, Financing Parties, and Subcontractors event that any claim is brought by any third party against all liabilities, damages, losses, costs or expenses (including, without limitation, attorneys’ fees and expenses) arising out POSITRON concerning the infringement of any suit, claim, or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: Right arising from POSITRON’s use or sale of the Product, POSITRON shall immediately inform NEUSOFT of such claim in writing and take all reasonable efforts to mitigate its loss. NEUSOFT shall defend, with the assistance of POSITRON, including without limitation in providing relevant information and materials, except providing any monetary payments to NEUSOFT, and indemnify POSITRON against any claim, suit or proceeding against POSITRON for the infringement of Intellectual Property Rights of any third party in respect of the Product and shall control the conduct of such proceedings and/or the responses to such claims and the settlement thereof; provided however that POSITRON shall have given NEUSOFT prompt written notice of any such claim, suit or proceeding and furnished NEUSOFT with a copy of each communication relating thereto and given NEUSOFT the requisite sole authority to defend or settle such claim, suit or proceeding. 9.2 In case of such proceeding, threat of proceeding or claim occurs, or in NEUSOFT`s opinion is likely to occur, NEUSOFT shall have the option (a) to procure for POSITRON a license/right for the Buyer promptly notifies the Seller in writing of the Claim(allegedly) infringing Product; or (b) gives to modify the Seller sole authority, at Product in such way that it no longer infringes; or (c) to replace the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer shall have the right to participate at the Seller’s expense in any such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action Product by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent similar non-infringing Product. 9.3 NEUSOFT shall not be unreasonably withheld); and liable for infringement in instances where POSITRON is charged with infringement (ca) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance solely due to modification or changes of the Buyer Product by POSITRON without NEUSOFT`s prior written consent or (b) where the infringement is as may be reasonably a result of required compliance by NEUSOFT with design specifications furnished by POSITRON, if such compliance necessarily and solely gives rise to defend any such Claiminfringement. If Notwithstanding the Seller does not promptly undertake defense foregoing, if NEUSOFT, in the process of manufacturing or developing with the design specifications furnished by POSITRON, discovers the risk of infringing the intellectual property rights of any such claim after notice of same from the Buyerthird party, the Buyer NEUSOFT shall be entitled but not required to undertake the defense immediately inform POSITRON of such claim risk so that POSITRON may take timely and shall have appropriate measures against the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderrisk.

INTELLECTUAL PROPERTY INDEMNITY. The Seller shall indemnify, defend and hold harmless, the Buyer, its Affiliates and its and their officers, employees, agents, Financing Parties, and Subcontractors against all liabilities, damages, losses, costs or expenses (including, without limitation, attorneys’ fees and expenses) arising out of any suit, claim, or proceeding (a “Claim”) alleging that the Equipment or Services provided under this Contract violate or infringe any Intellectual Property if: (a) To the Buyer promptly extent that the items ordered have not originated with Fenwal, Supplier guarantees that the sale and/or use of such items delivered hereunder and their manufacture by Supplier shall not infringe any U.S. or foreign patents, trademarks, copyrights, or trade secrets. Supplier shall, at its own expense, indemnify and hold harmless Fenwal and/or its successors, assigns or customers (collectively referred to in this section as "Fenwal"), against any action, suit or claim ("Suit") brought against Fenwal which is based upon a claim, whether rightful or otherwise, that the goods or services, or any part thereof, furnished under this Order, for Fenwal's use (including resale) thereof, constitutes an infringement of any patent, trademark, copyright or trade secret. Provided that Fenwal duly notifies Supplier as to any such Suit, Supplier shall defend and pay all damages, royalties and costs awarded against, and reasonable expenses incurred by, Fenwal in connection with such Suit. If the Seller goods or services in writing such Suit are held to constitute infringement and the use thereof is enjoined, Supplier shall, at its own expense and at its option, either procure for Fenwal the right to continue the use of such goods and/or services, or, in a manner acceptable to Fenwal, make a replacement or modification to avoid infringement. ▇▇▇▇▇▇ agrees, to the extent of its ability to do so, to supply any pertinent evidence needed to defend any Suit but only at the expense of the Claim; Supplier. (b) gives the Seller sole authority, at the Seller’s expense, using counsel reasonably acceptable to the Buyer, to direct and control the defense and any settlement and compromise negotiations; provided, however, that the Buyer shall have the right to participate at the Seller’s expense in any such settlement and compromise negotiations that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer and that the Buyer shall have the right to approve any settlement that would require any changes to the Services or Equipment or that would require any action or restraint of action by the Buyer (which consent The foregoing indemnity shall not apply where such goods or services are allegedly infringing as a result of Supplier's compliance with specific written instructions from Fenwal directing use by Supplier of a feature not customarily used by Supplier. Supplier waives any rights to be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s expense, with such disclosure and assistance of the Buyer as may be reasonably required to defend held harmless by Fenwal against any such Claim. If the Seller does not promptly undertake defense of any such claim after notice of same from the Buyer, the Buyer shall be entitled but not required to undertake the defense of such claim and shall have the right to direct and control the defense and any settlement and compromise negotiations concerning such claim with counsel selected by the Buyer and that the Seller shall have the right to approve any settlement (which consent shall not be unreasonably withheld); all at the Seller’s expense. For the avoidance of doubt, the Buyer’s election to undertake or not to undertake such defense will not limit in any way the Seller’s indemnification obligations hereunderclaims for infringement.