Common use of Intellectual Property Rights and Indemnification Clause in Contracts

Intellectual Property Rights and Indemnification. (a) Contractor warrants, represents and agrees that: (i) Except to the extent that LCI specifically provides an idea or ideas, materials, specifications or directions to Contractor that necessarily preclude the related Work from being original to Contractor, and except for Third Party IP (Intellectual property owned by Third-Parties) all Work provided by Contractor shall be original to Contractor. (ii) The Work shall not infringe upon or violate any patent, copyright, trademark, trade secret or other intellectual property right of any third party. Contractor, at its own expense, shall indemnify and hold LCI, its parent, and Affiliates harmless from any loss, damage, liability or expense (including attorneys' fees) arising from any claim(s), action(s) or other proceeding(s) based on a claim that any Work provided by Contractor to LCI infringes upon or violates any patent, copyright, trademark, trade secret or other intellectual property right of any third party. Contractor shall pay all damages, fees, losses, liabilities, cost or expenses, including attorney's fees, in any such action or other proceeding or the settlement of any such claim, as the case may be. Contractor shall immediately notify LCI and defend LCI and Affiliates against any such claims, actions, or other proceedings, and shall conduct any settlement negotiations, on behalf of LCI at Contractor's sole cost and expense: provided that LCI may elect to participate in the defense and any settlement negotiations through counsel of its own choosing and at its own cost, and provided that LCI shall have final approval of any settlement requiring payment from LCI or reducing LCI's rights to use any property which forms the subject matter of the claim, action or proceeding. The foregoing provisions of this Article 18 (a)(ii) and the provisions of Article 18(a)(iii) shall not apply to any Third Party IP. (iii) Should the Work or any portion of the Work provided by Contractor become, or in Contractor's opinion is likely to become, the subject of a claim or infringement, or should LCI's use of the Work be finally enjoined, Contractor shall, at its expense: (A) Procure for LCI the right to continue using, relying upon and receiving the Work; (B) Replace or modify the Work to make it non-infringing provided that such replacement or modified Work continues to comply substantially with all applicable specifications or other requirements under this Agreement; or (C) If neither of the foregoing can be suitably accomplished, reimburse LCI for the Work by refunding to LCI the price paid by LCI for the Work. (i) In the course of performing its services under this agreement, Contractor may devise, create or develop computer software or hardware (including, without limitation, customization of software provided by others, development of software or hardware for the purposes of connecting or integrating elements of the overall NOC System and development of software designed to enhance overall NOC System performance or the performance of discrete NOC system elements) or other material, devices or inventions in order to deliver the assessment, architectural, engineering. Implementation and other system integration services contemplated in the Statements of Work contemplated by Article 2(a), including the completed NOC and each phase of the NOC project ("System Deliverables"). In addition, LCI may request, and Contractor may deliver, other software, hardware, material, devices inventions for other, specific purposes which would be defined, other software, hardware, material, devices or inventions for other, specific purposes which would be defined in one or more Statements of Work in addition to those contemplated in Article 2(a) ("Additional Deliverables"). "Deliverables" collectively refers to the combination of System Deliverables and Additional Deliverables, if any.

Intellectual Property Rights and Indemnification. (a6.1 Planon and/or its licensor(s) Contractor warrantsshall own and retain all right, represents title, and agrees that:interest in the Software, the materials developed under Services, Customized Software included, such as analyses, designs, documentation, reports, quotations as well as preparatory materials and all intellectual property rights inherent therein, including without limitation all changes and improvements made, requested, or suggested by Customer, notwithstanding any use of terms such as “purchase”, “sale” or the like within this Agreement or any POF. Any unauthorized use of the Software and/or Customized Software will be deemed a material breach of the Agreement between Planon and Customer. 6.2 Customer will acquire only the rights of use and the rights expressly awarded by this Agreement. Customer will not reproduce the Software or other materials or make copies of the same. Planon and its licensors may take technical measures to protect the Software. If the Software is secured by technical protection, Customer shall not remove or evade such security features. If the security measures result in Customer being unable to make copies of the Software, Planon will make a copy of the Software at Customer’s request. 6.3 Subject to Customer's performance of its obligations under this Agreement, Planon shall at its sole option defend or settle, at its expense, any claim, suit or proceeding brought or made against Customer alleging that the Software or Services solely developed and provided by Planon hereunder infringes a copyright or trade secret of any third party in the Territory, and Planon will pay reasonable costs, damages and attorneys' fees attributable to such claim that are awarded against Customer; provided however, that (i) Except Customer shall have given Planon prompt written notice of such claim, suit or proceeding, (ii) Customer shall cooperate with Planon in the defence and settlement thereof, and (iii) Planon shall have sole control of the defence of such claim, suit or proceeding and any settlement or compromise thereof. The foregoing shall be the sole obligation of Planon and the exclusive remedy of Customer with respect to any alleged infringement by the Software of any third party’s intellectual property rights in the Territory. Planon shall have no obligation under this article if and to the extent that LCI specifically provides an idea such claim or ideassuit arises from: (i) compliance by Planon with Customer’s specifications, materials, specifications or directions to Contractor that necessarily preclude the related Work from being original to Contractor, and except for Third Party IP (Intellectual property owned by Third-Parties) all Work provided by Contractor shall be original to Contractor. (ii) The Work shall not infringe upon or violate any patent, copyright, trademark, trade secret or other intellectual property right of any third party. Contractor, at its own expense, shall indemnify and hold LCI, its parent, and Affiliates harmless from any loss, damage, liability or expense (including attorneys' fees) arising from any claim(s), action(s) or other proceeding(s) based on a claim that any Work provided by Contractor to LCI infringes upon or violates any patent, copyright, trademark, trade secret or other intellectual property right of any third party. Contractor shall pay all damages, fees, losses, liabilities, cost or expenses, including attorney's fees, in any such action or other proceeding or the settlement of any such claim, as the case may be. Contractor shall immediately notify LCI and defend LCI and Affiliates against any such claims, actions, or other proceedings, and shall conduct any settlement negotiations, on behalf of LCI at Contractor's sole cost and expense: provided that LCI may elect to participate in the defense and any settlement negotiations through counsel of its own choosing and at its own cost, and provided that LCI shall have final approval of any settlement requiring payment from LCI or reducing LCI's rights to use any property which forms the subject matter modification of the claimSoftware other than by Planon, action or proceeding. The foregoing provisions of this Article 18 (a)(ii) and the provisions of Article 18(a)(iii) shall not apply to any Third Party IP. (iii) Should the Work or any portion combination of the Work Software with products or services other than those supplied by Planon, (iv) Customer continuing any use of the Software after being notified of any allegedly infringing activity or after being informed of or provided by Contractor become, or in Contractor's opinion is likely to become, with modifications that would have avoided the subject of a claim or alleged infringement, or should LCI's (v) Customer’s use of the Work be finally enjoined, Contractor shall, at its expense: (A) Procure for LCI Software that is not strictly in accordance with the right to continue using, relying upon and receiving the Work; (B) Replace or modify the Work to make it non-infringing provided that such replacement or modified Work continues to comply substantially with all applicable specifications or other requirements licence granted under this Agreement; or (C) If neither of the foregoing can be suitably accomplished, reimburse LCI for the Work by refunding to LCI the price paid by LCI for the Work. (i) In the course of performing its services under this agreement, Contractor may devise, create or develop computer software or hardware (including, without limitation, customization of software provided by others, development of software or hardware for the purposes of connecting or integrating elements of the overall NOC System and development of software designed to enhance overall NOC System performance or the performance of discrete NOC system elements) or other material, devices or inventions in order to deliver the assessment, architectural, engineering. Implementation and other system integration services contemplated in the Statements of Work contemplated by Article 2(a), including the completed NOC and each phase of the NOC project ("System Deliverables"). In addition, LCI may request, and Contractor may deliver, other software, hardware, material, devices inventions for other, specific purposes which would be defined, other software, hardware, material, devices or inventions for other, specific purposes which would be defined in one or more Statements of Work in addition to those contemplated in Article 2(a) ("Additional Deliverables"). "Deliverables" collectively refers to the combination of System Deliverables and Additional Deliverables, if any.