Intellectual Property Warranty and Indemnification. Contractor represents and warrants: (i) that Contractor has the full power and authority to grant the License, ownership and all other rights granted by this Agreement to County; (ii) that no consent of any other person or entity is required by Contractor to grant such rights other than consents that have been obtained and are in effect; (iii) that County is entitled to use the Solution without interruption, subject only to County’s obligation to make the required payments and observe the License terms under this Agreement; (iv) that this Agreement and the Solution licensed or acquired herein, are neither subject to any liens, encumbrances, or pledges nor subordinate to any right or claim of any third party, including Contractor’s creditors; (v) that during the term of this Agreement, Contractor shall not subordinate this Agreement or any of its rights hereunder to any third party without the prior written consent of County, and without providing in such subordination instrument for non-disturbance of County’s use of the Solution (or any part thereof) in accordance with this Agreement; and (vi) that neither the performance of this Agreement by Contractor, nor the License to or ownership by, and use by, County and its Users of the Solution in accordance with this Agreement will in any way violate any non-disclosure agreement, nor constitute any infringement or other violation of any copyright, trade secret, trademark, service ▇▇▇▇, patent, invention, proprietary information, or other rights of any third party. Notwithstanding any provision to the contrary, whether expressly or by implication, Contractor shall indemnify, defend, and hold harmless the County its Special Districts, elected and appointed officers, employees and agents (collectively referred to for purposes of this Paragraph 14 as “County”) from and against any and all liability, including but not limited to demands, claims, actions, fees, damages, costs, and expenses (including attorneys and expert witness fees) arising from any alleged or actual infringement of any third party’s patent or copyright, or any alleged or actual unauthorized trade secret disclosure, arising from or related to this Agreement and/or the operation and use of the System (collectively referred to for purposes of this Paragraph 14 as “Infringement Claim(s)”). Any legal defense pursuant to Contractor’s indemnification obligations under this Paragraph 18 shall be conducted by Contractor and performed by counsel selected by Contractor. County shall provide Contractor with information, reasonable assistance, and authority to defend or settle the claim. Notwithstanding the foregoing, County shall have the right to participate in any such defense at its sole cost and expense. County shall notify Contractor, in writing, as soon as practicable of any claim or action alleging such infringement or unauthorized disclosure. Upon such notice by County, Contractor shall, at no cost to County, as remedial measures, either: (i) procure the right, by license or otherwise, for County to continue to use the Solution or affected component(s) thereof, or part(s) thereof, to the same extent of County’s License or ownership rights under this Agreement; or (ii) to the extent procuring such right to use the Solution is not commercially reasonable, replace or modify the Solution or component(s) thereof with another software or component(s) thereof of at least equivalent quality and performance capabilities, as mutually determined by County and Contractor until the Solution and all components thereof become non-infringing, non-misappropriating and non-disclosing (hereinafter collectively for the purpose of this Paragraph 19 “Remedial Act(s)”). If Contractor fails to complete the Remedial Acts described in Paragraph 19 above then, County may terminate this Agreement for default pursuant to Paragraph 28 (Termination for Default), in which case, in addition to other remedies available to County, Contractor shall reimburse County for the entire Implementation Cost paid by County to Contractor under the Agreement. Contractor and County agree that all materials, plans, reports, Project Schedule, Project Plan, documentation and training materials developed by or solely for County, departmental procedures and processes, algorithms and any other information provided by County or specifically provided by Contractor for County pursuant to this Agreement, excluding the Work Product and Solution Software provided by Contractor and related Documentation (collectively “County Materials”), and all copyrights, patent rights, trade secret rights and other proprietary rights therein shall be the sole property of County. Contractor hereby assigns and transfers to County all of Contractor’s right, title, and interest in and to all such County Materials, provided that notwithstanding such County ownership, Contractor may retain possession of all working papers prepared by Contractor. During and for a minimum of five (5) years subsequent to the term of this Agreement, Contractor shall retain any and all such working papers. County shall have the right to inspect any and all such working papers, make copies thereof, and use the working papers and the information contained therein.
Appears in 1 contract
Sources: Aaa Solution Agreement
Intellectual Property Warranty and Indemnification. Contractor represents and warrants: (i) that Contractor has the full power and authority to grant the License, ownership and all other rights granted by this Agreement to County; (ii) that no consent of any other person or entity is required by Contractor to grant such rights other than consents that have been obtained and are in effect; (iii) that County is entitled to use the Solution without interruption, subject only to County’s obligation to make the required payments and observe the License terms under this Agreement; (iv) that this Agreement and the Solution licensed or acquired herein, are neither subject to any liens, encumbrances, or pledges nor subordinate to any right or claim of any third party, including Contractor’s creditors; (v) that during the term of this Agreement, Contractor shall not subordinate this Agreement or any of its rights hereunder to any third party without the prior written consent of County, and without providing in such subordination instrument for non-disturbance of County’s use of the Solution (or any part thereof) in accordance with this Agreement; and (vi) that neither the performance of this Agreement by Contractor, nor the License to or ownership by, and use by, County and its Users of the Solution in accordance with this Agreement will in any way violate any non-disclosure agreement, nor constitute any infringement or other violation of any copyright, trade secret, trademark, service ▇▇▇▇, patent, invention, proprietary information, or other rights of any third party. 8.25.9.1 Indemnification – General Notwithstanding any provision to the contrary, whether expressly or by implication, Contractor shall must indemnify, defend, and hold harmless the County County, its Special Districts, and their elected and appointed officers, employees employees, Agents and agents volunteers (collectively referred to for purposes of this Paragraph 14 8.25.9.1 as “County”County and its Agents) from and against any and all liability, including including, but not limited to to, demands, claims, actions, fees, damages, costs, and expenses (including attorneys and expert witness fees) arising from any alleged or actual infringement of any third party’s patent or copyright, or any alleged or actual unauthorized trade secret disclosure, arising from or related to this Agreement Contract and/or the operation and use of the System (ICSS [collectively referred to for purposes of this Paragraph 14 8.25.9.1 as “Infringement Claim(s)”)]. Any legal defense pursuant to Contractor’s indemnification obligations under this Paragraph 18 shall Paragraph
8.25.9.1 must be conducted by Contractor and performed by counsel selected by Contractor. The County shall will provide Contractor with information, reasonable assistance, and authority to defend or settle the claim. Notwithstanding the foregoing, the County shall have will retain the right to participate in any such defense at its sole cost and expense. Contractor must sign and adhere to the provisions of Exhibit F1 (Contractor Acknowledgement, Confidentiality, and Copyright Assignment Agreement) to this Contract.
8.25.9.2 Indemnification – Intellectual Property
8.25.9.2.1 Notwithstanding any provision to the contrary, whether expressly or by implication, from and against any and all third-party liability, including, but not limited to, demands, claims, actions, fees, damages, costs, and expenses (including attorneys and expert witness fees) arising from any alleged or actual infringement of any third party’s patent or copyright, or any alleged or actual unauthorized trade secret disclosure, arising from or related to this Contract and/or the operation and use of the ICSS (collectively referred to for purposes of this Paragraph 8.25.9.2.1. (Indemnification – Intellectual Property) as “Infringement Claim(s).”
8.25.9.2.2 Any legal defense pursuant to Contractor’s indemnification obligations under this Paragraph 8.25.9.2 (Indemnification – Intellectual Property) must be conducted by Contractor and performed by counsel selected by Contractor. The County shall notify will provide Contractor with information, reasonable assistance and authority to defend or settle the claim. Notwithstanding the foregoing, the County will retain the right to participate in any such defense at its sole cost and expense.
8.25.9.2.3 Contractor must pay and is solely responsible for the amount of any resulting adverse final judgement issued by a court of competent jurisdiction, or of any settlement made by Contractor in writing.
8.25.9.2.4 Contractor will have no liability hereunder if the claim of infringement or an adverse final judgment rendered by a court of competent jurisdiction results from: i) the County’s use of a previous version of the ICSS, and the claim would have been avoided had the County used the current version of the software, ii) the County’s combining the ICSS with devices or products not intended or approved by Contractor, iii) use of the ICSS in writingapplications, as soon as practicable business environments or processes for which the Solution was not designed or contemplated, and where use of the Solution outside of such application, environment or business process would not have given rise to the claim, iv) corrections, modifications, alterations or enhancements that the County made to the ICSS and such correction, modifications, alterations or enhancements is determined by a court of competent jurisdiction to be a contributing (e.g., material and/or substantive) cause of the infringement, v) use of the ICSS by any claim person or action alleging entity other than Users, or vi) subject to Contractor’s remedial measures, the County’s willful infringement, including continued use of Contractor’s infringing the ICSS after being notified by Contractor that such infringement infringing the ICSS is, or unauthorized disclosure. Upon such notice by Countyis likely to become, the subject of a third-party claim.
8.25.9.2.5 Contractor shallmust, at its option and at no cost to the County, as engage in remedial measuresmeasures by, either: (i) procure disabling without delay, the affected software component, as applicable, and either ii) procuring the right, by license or otherwise, for the County to continue to use the Solution ICSS or affected component(s) thereof, or part(s) thereof, to the same extent of County’s License or ownership rights under this Agreement; iii) replacing or (ii) to the extent procuring such right to use the Solution is not commercially reasonable, replace or modify modifying the Solution or any component(s) thereof with another software or component(s) thereof of at least equivalent quality and performance capabilities, as mutually determined and agreed to by the County and Contractor Contractor, until the Solution ICSS and all components thereof become non-non- infringing, non-misappropriating and non-disclosing (hereinafter collectively for the purpose of this Paragraph 19 “Remedial Act(s)”8.25.9 (Indemnification – Intellectual Property). If The foregoing states Contractor’s entire liability and the County’s sole and exclusive remedy with respect to this Paragraph 8.25.9.
8.25.9.2.6 Failure by Contractor fails to provide and complete the Remedial Acts remedial acts described in Paragraph 19 8.25.9.2.5 above thenwill constitute a material breach of this Contract, upon which the County may will be entitled to terminate this Agreement for default pursuant to Paragraph 28 (Termination for Default), in which case, in addition to other remedies available to County, Contractor shall reimburse County for the entire Implementation Cost paid by County to Contractor under the Agreement. Contractor and County agree that all materials, plans, reports, Project Schedule, Project Plan, documentation and training materials developed by or solely for County, departmental procedures and processes, algorithms and any other information provided by County or specifically provided by Contractor for County pursuant to this Agreement, excluding the Work Product and Solution Software provided by Contractor and related Documentation (collectively “County Materials”), and all copyrights, patent rights, trade secret rights and other proprietary rights therein shall be the sole property of County. Contractor hereby assigns and transfers to County all of Contractor’s right, title, and interest in and to all such County Materials, provided that notwithstanding such County ownership, Contractor may retain possession of all working papers prepared by Contractor. During and for a minimum of five (5) years subsequent to the term of this Agreement, Contractor shall retain any and all such working papers. County shall have the right to inspect any and all such working papers, make copies thereof, and use the working papers and the information contained therein.Contract for
Appears in 1 contract
Intellectual Property Warranty and Indemnification. Contractor 11.1.1 Supplier represents and warrantswarrants to Buyer that: (ix) it has not received any notice claiming that Contractor has the full power and authority to grant the License, ownership and all other rights granted by this Agreement to County; (ii) that no consent of any other person or entity is required by Contractor to grant such rights other than consents that have been obtained and are in effect; (iii) that County is entitled to use the Solution without interruption, subject only to County’s obligation to make the required payments and observe the License terms under this Agreement; (iv) that this Agreement and the Solution licensed or acquired herein, are neither subject to any liens, encumbrances, or pledges nor subordinate to any right or claim of any third party, including Contractor’s creditors; (v) that during the term of this Agreement, Contractor shall not subordinate this Agreement or any of its rights hereunder to Products and services directly or indirectly infringes any third party without the prior written consent of County, and without providing in such subordination instrument for non-disturbance of County’s use of the Solution (or any part thereof) in accordance with this AgreementIPR; and (viy) that neither to the performance best of this Agreement by Contractorits knowledge, nor the License to all Products delivered hereunder do not directly or ownership byindirectly infringe, and use bymisappropriate, County and its Users of the Solution in accordance with this Agreement will in any way or otherwise violate any non-disclosure agreement, nor constitute any infringement or other violation of any copyright, trade secret, trademark, service ▇▇▇▇, patent, invention, proprietary information, or other rights of any third partyparty IPR. Notwithstanding any provision to the contrary, whether expressly or by implication, Contractor Supplier shall indemnify, defend, indemnify and hold harmless the County its Special Districts, elected and appointed officers, employees and agents (collectively referred to for purposes of this Paragraph 14 as “County”) Buyer Indemnitees from and against any and all liability, including but not limited to demands, claims, actions, fees, damagesliabilities, costs, damages and expenses (expenses, including attorneys and expert witness reasonable attorneys’ fees) arising from any alleged or actual infringement of any third party’s patent or copyright, or any alleged or actual unauthorized trade secret disclosure, arising from or related to this Agreement and/or any claim that Products, in whole or in part, directly or indirectly infringe, misappropriate, or otherwise violate any IPR of a Third Party. If Supplier does not diligently pursue resolution of the operation claim against Buyer Indemnitees or provide reasonable assurances that it shall diligently pursue resolution, then the Buyer Indemnitee against who such claim has been advanced may, without in any way limiting its other rights and remedies, defend against the claim at Supplier’s expense. If the use of the System a Product is found to (collectively referred to for purposes of this Paragraph 14 as “Infringement Claim(s)”). Any legal defense pursuant to Contractor’s indemnification obligations under this Paragraph 18 shall be conducted or believed by Contractor and performed by counsel selected by Contractor. County shall provide Contractor with informationSupplier to) directly or indirectly infringe, reasonable assistancemisappropriate, or otherwise violate any Third Party IPR, Supplier shall, without in any way limiting its foregoing obligations, and authority to defend or settle the claim. Notwithstanding the foregoing, County shall have the right to participate in any such defense at its sole cost and expense. County shall notify Contractor, in writing, as soon as practicable of any claim or action alleging such infringement or unauthorized disclosure. Upon such notice by County, Contractor shall, at no cost to County, as remedial measures, either: :
(ia) procure the right, by license or otherwise, for County necessary rights so that Products are not subject to continue to use the Solution or affected component(sany such claim;
(b) thereof, or part(s) thereof, to the same extent of County’s License or ownership rights under this Agreement; or (ii) to the extent procuring such right to use the Solution is not commercially reasonable, replace or modify Product with a product of equivalent performance so that it avoids such claim; or Philips & Profound
(c) if the Solution options under subclasses a) or component(sb) thereof with another software or component(s) thereof of at least equivalent quality and performance capabilitiesabove are not possible, as mutually determined refund to Buyer in full all costs paid by County and Contractor until the Solution and all components thereof become non-infringing, non-misappropriating and non-disclosing (hereinafter collectively Buyer for the purpose relevant Products and pay all reasonable additional costs incurred by Buyer as a result of this Paragraph 19 “Remedial Act(sSupplier’s action under sub clauses a)”, b) or c). If Contractor fails to complete the Remedial Acts described Parties foresee that the Parties will jointly develop any Intellectual Property Rights in Paragraph 19 above then, County may terminate this Agreement for default pursuant to Paragraph 28 (Termination for Default), in which case, in addition to other remedies available to County, Contractor shall reimburse County for the entire Implementation Cost paid by County to Contractor under the Agreement. Contractor and County agree that all materials, plans, reports, Project Schedule, Project Plan, documentation and training materials developed by or solely for County, departmental procedures and processes, algorithms and any other information provided by County or specifically provided by Contractor for County pursuant to connection with this Agreement, excluding such development will be reviewed by the Work Product joint streering committee (as contemplated by the Purchase Agreement) and Solution Software provided appropriate legal documentation will be put in place to address such joint development, in a form approved by Contractor and related Documentation (collectively “County Materials”), and all copyrights, patent rights, trade secret rights and other proprietary rights therein shall be the sole property of County. Contractor hereby assigns and transfers to County all of Contractor’s right, title, and interest in and to all such County Materials, provided that notwithstanding such County ownership, Contractor may retain possession of all working papers prepared by Contractor. During and for a minimum of five (5) years subsequent to the term of this Agreement, Contractor shall retain any and all such working papers. County shall have the right to inspect any and all such working papers, make copies thereof, and use the working papers and the information contained thereinjoint steering committee.
Appears in 1 contract
Sources: Asset and Share Purchase Agreement (Profound Medical Corp.)
Intellectual Property Warranty and Indemnification. Contractor represents
(a) Seller warrants that the Goods and warrantsServices shall be delivered free of the rightful claim of any third person of infringement. Seller shall indemnify and hold harmless Buyer, Buyer’s Customers, Affiliates, and subsidiaries, their agents, directors, officers, and employees, and each subsequent purchaser or user of Goods or Services, from any losses, costs, damages, and liabilities, including, without limitation, any attorney’s fees, court costs and fines, arising from any potential or actual claim, suit, injunction, action, proceeding, or investigation alleging infringement or violation of any Intellectual Property rights or license, related to the manufacture, use, sale, offer for sale, import or other exploitation of any Goods or Services delivered or performed in connection with the Order (“Claim”).
(b) Seller shall not be liable for any Claim based on Seller’s compliance with any specification created by the Buyer, unless: (i) Seller could have complied with Buyer’s specification using a solution that Contractor has the full power and authority to grant the License, ownership and all other rights granted by this Agreement to Countywas non-infringing; (ii) that no consent the relevant portion of any other person or entity is required by Contractor to grant such rights other than consents that the specification
(c) Seller shall, upon written notice from Buyer of a Claim, promptly assume and diligently conduct the entire defense of a Claim at its own expense. Insofar as the Buyer’s interests are affected, the Buyer shall have been obtained and are in effect; (iii) that County is entitled to use the Solution without interruptionright, subject only to County’s obligation to make the required payments and observe the License terms under this Agreement; (iv) that this Agreement and the Solution licensed or acquired herein, are neither subject to any liens, encumbrances, or pledges nor subordinate to any right or claim of any third party, including Contractor’s creditors; (v) that during the term of this Agreement, Contractor shall not subordinate this Agreement or any of at its rights hereunder to any third party without the prior written consent of County, own expense and without providing in such subordination instrument for non-disturbance of County’s use releasing any obligation of the Solution (or any part thereof) Seller, to participate and intervene in accordance with this Agreement; and (vi) that neither the performance of this Agreement by Contractor, nor the License to or ownership by, and use by, County and its Users of the Solution in accordance with this Agreement will in any way violate any non-disclosure agreement, nor constitute any infringement or other violation of any copyright, trade secret, trademark, service ▇▇▇▇, patent, invention, proprietary information, or other rights of any third partya Claim. Notwithstanding any provision to the contrary, whether expressly or by implication, Contractor shall indemnify, defend, and hold harmless the County its Special Districts, elected and appointed officers, employees and agents (collectively referred to for purposes of this Paragraph 14 as “County”) from and against any and all liability, including but not limited to demands, claims, actions, fees, damages, costs, and expenses (including attorneys and expert witness fees) arising from any alleged or actual infringement of any third party’s patent or copyright, or any alleged or actual unauthorized trade secret disclosure, arising from or related to this Agreement and/or the operation and use of the System (collectively referred to for purposes of this Paragraph 14 as “Infringement Claim(s)”). Any legal defense pursuant to Contractor’s indemnification obligations under this Paragraph 18 shall be conducted by Contractor and performed by counsel selected by Contractor. County shall provide Contractor with information, reasonable assistance, and authority to defend or settle the claim. Notwithstanding the foregoing, County Buyer shall have the right to participate reasonably reject counsel selected by Seller. Seller shall not enter into any settlement without Buyer’s prior written consent, which shall not be unreasonably withheld.
(d) Buyer may supersede Seller in the defense of any Claim and assume and conduct the defense at Buyer’s sole discretion. In such an event, Seller shall be released from any obligation to pay for attorneys’ fees and court costs, but not settlement or damages, and any such release is expressly conditioned on Seller’s complete cooperation with Buyer in Buyer’s defense of such Claim at its sole cost and Buyer’s expense. County Buyer shall notify Contractornot enter into any settlement without Seller’s prior written consent, in writingwhich shall not be unreasonably withheld.
(e) If the manufacture, as soon as practicable use, sale, offer for sale, import, export or other exploitation of any claim of the Goods or action alleging such infringement Services is enjoined by a court, if delivery is precluded by a government entity, or unauthorized disclosure. Upon such notice by Countyshould Seller refuse to provide or supply any Goods or Services to avoid a potential third party claim, Contractor shall, at no cost Seller shall avoid any disruption to County, as remedial measures, either: Buyer and shall (i) procure secure for Buyer the rightright to provide, by license use or otherwise, for County to continue to use the Solution sell such Goods or affected component(sServices; (ii) thereof, modify or part(s) thereof, to the same extent of County’s License replace such Goods or ownership rights under this AgreementServices with equivalent non-infringing Goods or Services; or (iiiii) provide such other solution acceptable to Buyer. Seller shall reimburse Buyer for Buyer’s costs incurred in obtaining all internal, external and Buyer’s Customer approvals, qualifications, certifications, and the extent procuring such right to use the Solution is not commercially reasonablelike, replace or modify the Solution or component(s) thereof with another software or component(s) thereof of at least equivalent quality necessary for making, using and performance capabilities, as mutually determined by County and Contractor until the Solution and all components thereof become selling alternate non-infringinginfringing Goods or Services. Seller shall refund to Buyer the purchase price of any such Goods or Services that Buyer is prohibited from providing, non-misappropriating and non-disclosing (hereinafter collectively using, selling offering for the purpose of this Paragraph 19 “Remedial Act(s)”). If Contractor fails to complete the Remedial Acts described in Paragraph 19 above thensale, County may terminate this Agreement for default pursuant to Paragraph 28 (Termination for Default)importing, in which caseexporting, in addition to other remedies available to County, Contractor shall reimburse County for the entire Implementation Cost paid by County to Contractor under the Agreement. Contractor and County agree that all materials, plans, reports, Project Schedule, Project Plan, documentation and training materials developed by or solely for County, departmental procedures and processes, algorithms and any other information provided by County or specifically provided by Contractor for County pursuant to this Agreement, excluding the Work Product and Solution Software provided by Contractor and related Documentation (collectively “County Materials”), and all copyrights, patent rights, trade secret rights and other proprietary rights therein shall be the sole property of County. Contractor hereby assigns and transfers to County all of Contractor’s right, title, and interest in and to all such County Materials, provided that notwithstanding such County ownership, Contractor may retain possession of all working papers prepared by Contractor. During and for a minimum of five (5) years subsequent to the term of this Agreement, Contractor shall retain any and all such working papers. County shall have the right to inspect any and all such working papers, make copies thereof, and use the working papers and the information contained thereinotherwise exploiting.
Appears in 1 contract
Sources: Terms and Conditions of Purchase
Intellectual Property Warranty and Indemnification. 15.1 Contractor represents and warrants: (i) that Contractor has the full power and authority to grant the License, ownership and all other rights granted by this Agreement to County; (ii) that no consent of any other person or entity is required by Contractor to grant such rights other than consents that have been obtained and are in effect; (iii) that County is entitled to use the Solution without interruption, subject only to County’s obligation to make the required payments and observe the License terms under this Agreement; (iv) that this Agreement and the Solution licensed or acquired herein, are neither subject to any liens, encumbrances, or pledges nor subordinate to any right or claim of any third party, including Contractor’s creditors; (v) that during the term of this Agreement, Contractor shall not subordinate this Agreement or any of its rights hereunder to any third party without the prior written consent of County, and without providing in such subordination instrument for non-non- disturbance of County’s use of the Solution (or any part thereof) in accordance with this Agreement; and (vi) that neither the performance of this Agreement by Contractor, nor the License to or ownership by, and use by, County and its Users of the Solution in accordance with this Agreement will in any way violate any non-disclosure agreement, nor constitute any infringement or other violation of any copyright, trade secret, trademark, service ▇▇▇▇mark, patent, invention, proprietary information, or other rights of any third party. .
15.2 Notwithstanding any provision to the contrary, whether expressly or by implication, Contractor shall indemnify, defend, and hold harmless the County its Special Districts, elected and appointed approved officers, employees and agents (collectively referred to for purposes of this Paragraph 14 13 as “County”) from and against any and all liability, including but not limited to demands, claims, actions, fees, damages, costs, and expenses (including attorneys and expert witness fees) arising from any alleged or actual infringement of any third party’s patent or copyright, or any alleged or actual unauthorized trade secret disclosure, arising from or related to this Agreement and/or the operation and use of the System (collectively referred to for purposes of this Paragraph 14 13 as “Infringement Claim(s)”). Any legal defense pursuant to Contractor’s indemnification obligations under this Paragraph 18 15.2 shall be conducted by Contractor and performed by counsel selected by Contractor. County shall provide Contractor with information, reasonable assistance, and authority to defend or settle the claim. Notwithstanding the foregoing, County shall have the right to participate in any such defense at its sole cost and expense. .
15.3 County shall notify Contractor, in writing, as soon as practicable of any claim or action alleging such infringement or unauthorized disclosure. Upon such notice by County, Contractor shall, at no cost to County, as remedial measures, either: (i) procure the right, by license or otherwise, for County to continue to use the Solution or affected component(s) thereof, or part(s) thereof, to the same extent of County’s License or ownership rights under this Agreement; or (ii) to the extent procuring such right to use the Solution is not commercially reasonable, replace or modify the Solution or component(s) thereof with another software or component(s) thereof of at least equivalent quality and performance capabilities, as mutually determined by County and Contractor until the Solution and all components thereof become non-infringing, non-misappropriating and non-disclosing (hereinafter collectively for the purpose of this Paragraph 19 15.3 “Remedial Act(s)”). .
15.4 If Contractor fails to complete the Remedial Acts described in Paragraph 19 15.3 above then, County may terminate this Agreement for default pursuant to Paragraph 28 20 (Termination for Default), in which case, in addition to other remedies available to County, Contractor shall reimburse County for the entire Implementation Cost paid by County to Contractor under the Agreement. Contractor and County agree that all materials, plans, reports, Project Schedule, Project Plan, documentation and training materials developed by or solely for County, departmental procedures and processes, algorithms and any other information provided by County or specifically provided by Contractor for County pursuant to this Agreement, excluding the Work Product and Solution Software provided by Contractor and related Documentation (collectively “County Materials”), and all copyrights, patent rights, trade secret rights and other proprietary rights therein shall be the sole property of County. Contractor hereby assigns and transfers to County all of Contractor’s right, title, and interest in and to all such County Materials, provided that notwithstanding such County ownership, Contractor may retain possession of all working papers prepared by Contractor. During and for a minimum of five (5) years subsequent to the term of this Agreement, Contractor shall retain any and all such working papers. County shall have the right to inspect any and all such working papers, make copies thereof, and use the working papers and the information contained therein.
Appears in 1 contract
Sources: Community and Senior Center Automation Solution Agreement
Intellectual Property Warranty and Indemnification. Contractor 11.1.1 Supplier represents and warrantswarrants to Buyer that: (ix) it has not received any notice claiming that Contractor has the full power and authority to grant the License, ownership and all other rights granted by this Agreement to County; (ii) that no consent of any other person or entity is required by Contractor to grant such rights other than consents that have been obtained and are in effect; (iii) that County is entitled to use the Solution without interruption, subject only to County’s obligation to make the required payments and observe the License terms under this Agreement; (iv) that this Agreement and the Solution licensed or acquired herein, are neither subject to any liens, encumbrances, or pledges nor subordinate to any right or claim of any third party, including Contractor’s creditors; (v) that during the term of this Agreement, Contractor shall not subordinate this Agreement or any of its rights hereunder to Products and services directly or indirectly infringes any third party without the prior written consent of County, and without providing in such subordination instrument for non-disturbance of County’s use of the Solution (or any part thereof) in accordance with this AgreementIPR; and (viy) that neither to the performance best of this Agreement by Contractorits knowledge, nor the License to all Products delivered hereunder do not directly or ownership byindirectly infringe, and use bymisappropriate, County and its Users of the Solution in accordance with this Agreement will in any way or otherwise violate any non-disclosure agreement, nor constitute any infringement or other violation of any copyright, trade secret, trademark, service ▇▇▇▇, patent, invention, proprietary information, or other rights of any third partyparty IPR. Notwithstanding any provision to the contrary, whether expressly or by implication, Contractor Supplier shall indemnify, defend, indemnify and hold harmless the County its Special Districts, elected and appointed officers, employees and agents (collectively referred to for purposes of this Paragraph 14 as “County”) Buyer Indemnitees from and against any and all liability, including but not limited to demands, claims, actions, fees, damagesliabilities, costs, damages and expenses (expenses, including attorneys and expert witness reasonable attorneys’ fees) arising from any alleged or actual infringement of any third party’s patent or copyright, or any alleged or actual unauthorized trade secret disclosure, arising from or related to this Agreement and/or any claim that Products, in whole or in part, directly or indirectly infringe, misappropriate, or otherwise violate any IPR of a Third Party. If Supplier does not diligently pursue resolution of the operation claim against Buyer Indemnitees or provide reasonable assurances that it shall diligently pursue resolution, then the Buyer Indemnitee against who such claim has been advanced may, without in any way limiting its other rights and remedies, defend against the claim at Supplier’s expense. If the use of the System a Product is found to (collectively referred to for purposes of this Paragraph 14 as “Infringement Claim(s)”). Any legal defense pursuant to Contractor’s indemnification obligations under this Paragraph 18 shall be conducted or believed by Contractor and performed by counsel selected by Contractor. County shall provide Contractor with informationSupplier to) directly or indirectly infringe, reasonable assistancemisappropriate, or otherwise violate any Third Party IPR, Supplier shall, without in any way limiting its foregoing obligations, and authority to defend or settle the claim. Notwithstanding the foregoing, County shall have the right to participate in any such defense at its sole cost and expense. County shall notify Contractor, in writing, as soon as practicable of any claim or action alleging such infringement or unauthorized disclosure. Upon such notice by County, Contractor shall, at no cost to County, as remedial measures, either: Philips & Profound
(ia) procure the right, by license or otherwise, for County necessary rights so that Products are not subject to continue to use the Solution or affected component(sany such claim;
(b) thereof, or part(s) thereof, to the same extent of County’s License or ownership rights under this Agreement; or (ii) to the extent procuring such right to use the Solution is not commercially reasonable, replace or modify Product with a product of equivalent performance so that it avoids such claim; or
(c) if the Solution options under subclasses a) or component(sb) thereof with another software or component(s) thereof of at least equivalent quality and performance capabilitiesabove are not possible, as mutually determined refund to Buyer in full all costs paid by County and Contractor until the Solution and all components thereof become non-infringing, non-misappropriating and non-disclosing (hereinafter collectively Buyer for the purpose relevant Products and pay all reasonable additional costs incurred by Buyer as a result of this Paragraph 19 “Remedial Act(sSupplier’s action under sub clauses a)”, b) or c). If Contractor fails to complete the Remedial Acts described Parties foresee that the Parties will jointly develop any Intellectual Property Rights in Paragraph 19 above then, County may terminate this Agreement for default pursuant to Paragraph 28 (Termination for Default), in which case, in addition to other remedies available to County, Contractor shall reimburse County for the entire Implementation Cost paid by County to Contractor under the Agreement. Contractor and County agree that all materials, plans, reports, Project Schedule, Project Plan, documentation and training materials developed by or solely for County, departmental procedures and processes, algorithms and any other information provided by County or specifically provided by Contractor for County pursuant to connection with this Agreement, excluding such development will be reviewed by the Work Product joint streering committee (as contemplated by the Purchase Agreement) and Solution Software provided appropriate legal documentation will be put in place to address such joint development, in a form approved by Contractor and related Documentation (collectively “County Materials”), and all copyrights, patent rights, trade secret rights and other proprietary rights therein shall be the sole property of County. Contractor hereby assigns and transfers to County all of Contractor’s right, title, and interest in and to all such County Materials, provided that notwithstanding such County ownership, Contractor may retain possession of all working papers prepared by Contractor. During and for a minimum of five (5) years subsequent to the term of this Agreement, Contractor shall retain any and all such working papers. County shall have the right to inspect any and all such working papers, make copies thereof, and use the working papers and the information contained thereinjoint steering committee.
Appears in 1 contract
Sources: Resale Purchasing Agreement (Profound Medical Corp.)
Intellectual Property Warranty and Indemnification. Contractor represents (a) Seller warrants that the Goods and warrantsServices shall be delivered free of the rightful claim of any third person of infringement. Seller shall indemnify and hold harmless Buyer, ▇▇▇▇▇’s Customers, Affiliates, and subsidiaries, their agents, directors, officers, and employees, and each subsequent purchaser or user of Goods or Services, from any losses, costs, damages, and liabilities, including, without limitation, any attorney’s fees, court costs and fines, arising from any potential or actual claim, suit, injunction, action, proceeding, or investigation alleging infringement or violation of any Intellectual Property rights or license, related to the manufacture, use, sale, offer for sale, import or other exploitation of any Goods or Services delivered or performed in connection with the Order (“Claim”).
(b) Seller shall not be liable for any Claim based on Seller’s compliance with any specification created by the Buyer, unless: (i) Seller could have complied with Buyer’s specification using a solution that Contractor has the full power and authority to grant the License, ownership and all other rights granted by this Agreement to Countywas non- infringing; (ii) that no consent the relevant portion of any other person the specification was derived from, recommended by, or entity is required by Contractor to grant such rights other than consents that have been obtained and are in effectprovided by, Seller; or (iii) that County is entitled to use Seller knew or should have known of a Claim or potential Claim and did not promptly notify Buyer in writing.
(c) Seller shall, upon written notice from Buyer of a Claim, promptly assume and diligently conduct the Solution without interruptionentire defense of a Claim at its own expense. Insofar as the Buyer’s interests are affected, subject only to County’s obligation to make the required payments and observe Buyer shall have the License terms under this Agreement; (iv) that this Agreement and the Solution licensed or acquired hereinright, are neither subject to any liens, encumbrances, or pledges nor subordinate to any right or claim of any third party, including Contractor’s creditors; (v) that during the term of this Agreement, Contractor shall not subordinate this Agreement or any of at its rights hereunder to any third party without the prior written consent of County, own expense and without providing in such subordination instrument for non-disturbance of County’s use releasing any obligation of the Solution (or any part thereof) Seller, to participate and intervene in accordance with this Agreement; and (vi) that neither the performance of this Agreement by Contractor, nor the License to or ownership by, and use by, County and its Users of the Solution in accordance with this Agreement will in any way violate any non-disclosure agreement, nor constitute any infringement or other violation of any copyright, trade secret, trademark, service ▇▇▇▇, patent, invention, proprietary information, or other rights of any third partya Claim. Notwithstanding any provision to the contrary, whether expressly or by implication, Contractor shall indemnify, defend, and hold harmless the County its Special Districts, elected and appointed officers, employees and agents (collectively referred to for purposes of this Paragraph 14 as “County”) from and against any and all liability, including but not limited to demands, claims, actions, fees, damages, costs, and expenses (including attorneys and expert witness fees) arising from any alleged or actual infringement of any third party’s patent or copyright, or any alleged or actual unauthorized trade secret disclosure, arising from or related to this Agreement and/or the operation and use of the System (collectively referred to for purposes of this Paragraph 14 as “Infringement Claim(s)”). Any legal defense pursuant to Contractor’s indemnification obligations under this Paragraph 18 shall be conducted by Contractor and performed by counsel selected by Contractor. County shall provide Contractor with information, reasonable assistance, and authority to defend or settle the claim. Notwithstanding the foregoing, County Buyer shall have the right to participate reasonably reject counsel selected by ▇▇▇▇▇▇. Seller shall not enter into any settlement without Buyer’s prior written consent, which shall not be unreasonably withheld.
(d) ▇▇▇▇▇ may supersede Seller in the defense of any Claim and assume and conduct the defense at ▇▇▇▇▇’s sole discretion. In such an event, Seller shall be released from any obligation to pay for attorneys’ fees and court costs, but not settlement or damages, and any such release is expressly conditioned on Seller’s complete cooperation with Buyer in Buyer’s defense of such Claim at its sole cost and Buyer’s expense. County Buyer shall notify Contractornot enter into any settlement without Seller’s prior written consent, in writingwhich shall not be unreasonably withheld.
(e) If the manufacture, as soon as practicable use, sale, offer for sale, import, export or other exploitation of any claim of the Goods or action alleging such infringement Services is enjoined by a court, if delivery is precluded by a government entity, or unauthorized disclosure. Upon such notice by Countyshould Seller refuse to provide or supply any Goods or Services to avoid a potential third party claim, Contractor shall, at no cost Seller shall avoid any disruption to County, as remedial measures, either: Buyer and shall (i) procure secure for Buyer the rightright to provide, by license use or otherwise, for County to continue to use the Solution sell such Goods or affected component(sServices; (ii) thereof, modify or part(s) thereof, to the same extent of County’s License replace such Goods or ownership rights under this AgreementServices with equivalent non-infringing Goods or Services; or (iiiii) provide such other solution acceptable to Buyer. Seller shall reimburse Buyer for ▇▇▇▇▇’s costs incurred in obtaining all internal, external and Buyer’s Customer approvals, qualifications, certifications, and the extent procuring such right to use the Solution is not commercially reasonablelike, replace or modify the Solution or component(s) thereof with another software or component(s) thereof of at least equivalent quality necessary for making, using and performance capabilities, as mutually determined by County and Contractor until the Solution and all components thereof become selling alternate non-infringinginfringing Goods or Services. Seller shall refund to Buyer the purchase price of any such Goods or Services that Buyer is prohibited from providing, non-misappropriating and non-disclosing (hereinafter collectively using, selling offering for the purpose of this Paragraph 19 “Remedial Act(s)”). If Contractor fails to complete the Remedial Acts described in Paragraph 19 above thensale, County may terminate this Agreement for default pursuant to Paragraph 28 (Termination for Default)importing, in which caseexporting, in addition to other remedies available to County, Contractor shall reimburse County for the entire Implementation Cost paid by County to Contractor under the Agreement. Contractor and County agree that all materials, plans, reports, Project Schedule, Project Plan, documentation and training materials developed by or solely for County, departmental procedures and processes, algorithms and any other information provided by County or specifically provided by Contractor for County pursuant to this Agreement, excluding the Work Product and Solution Software provided by Contractor and related Documentation (collectively “County Materials”), and all copyrights, patent rights, trade secret rights and other proprietary rights therein shall be the sole property of County. Contractor hereby assigns and transfers to County all of Contractor’s right, title, and interest in and to all such County Materials, provided that notwithstanding such County ownership, Contractor may retain possession of all working papers prepared by Contractor. During and for a minimum of five (5) years subsequent to the term of this Agreement, Contractor shall retain any and all such working papers. County shall have the right to inspect any and all such working papers, make copies thereof, and use the working papers and the information contained thereinotherwise exploiting.
Appears in 1 contract
Sources: Terms and Conditions of Purchase