Common use of Licensee Intellectual Property Clause in Contracts

Licensee Intellectual Property. (a) Licensee shall, at its own expense, defend PalmSource and PalmSource’s subsidiaries (collectively “PalmSource Indemnitees”) against any claim brought against any PalmSource Indemnitee alleging that (1) the Licensee Products, Licensee Software, or the Licensee trademarks used within the scope of this Agreement infringe any third party (i) patents in the U.S., E.U. Japan, Canada, or Australia or other countries mutually agreed in writing, (ii) copyrights or trade secrets world-wide, or (iii) any registered trademark rights in the U.S., E.U., Japan, Canada, Australia or other countries where Licensee obtains a registration for its trademarks, or (2) the OS Developments or Licensee Related Works incorporated into any OS Developments or PalmSource’s source code tree by Licensee, to the extent used in or for PalmSource Products, infringe the copyrights or misappropriate the trade secrets of any third party. Licensee shall pay any settlements entered into by Licensee or damages awarded against any PalmSource Indemnitee to the extent based on such a claim, provided that Licensee is promptly notified, rendered reasonable assistance by PalmSource as required, and permitted to direct the defense or settlement negotiations. Licensee shall have no liability for any infringement to the extent arising from: (a) the integration or combination of any of the OS Developments, Licensee Related Works, Licensee Products, Licensee Software or Licensee trademarks together with other software, materials or products not integrated or combined by or for Licensee, if the infringement would have been avoided in the absence of such integration or combination; or (b) modifications to any of the OS Developments, Licensee Related Works, Licensee Products or Licensee Software not made by or on behalf of Licensee; or (c) compliance with PalmSource’s written specifications in the case of OS Developments and Licensee Related Works. If a PalmSource Indemnitee is contractually required to provide indemnification to its customers for infringement claims asserted against OS Developments or Licensee Related Works, to the extent used in or for PalmSource Products, then the PalmSource Indemnitee may elect to submit such claims under the indemnification obligation set forth in this Section 12.3, but only to the extent that: (i) the PalmSource Indemnitee’s contractual obligations apply to the PalmSource Product as a whole and do not apply any less favorably to the OS Developments or the Licensee Related Works; and (ii) the claim is for the OS Developments or Licensee Related Works, to the extent used in or for PalmSource Products, and is covered by both the PalmSource Indemnitee’s contractual obligation with its customer and the indemnification set forth in this Section 12.3 and is not subject to any exclusions or limitations under either, it being understood that such claim shall be excluded and limited to the greatest extent permitted under each of the PalmSource Indemnitee’s and Licensee’s indemnification obligation. (b) EXCEPT FOR THE XEROX LITIGATION AGREEMENT, THIS SECTION 12.3 STATES PALMSOURCE’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF PROPRIETARY RIGHTS OF ANY KIND, AND ALL WARRANTIES OF NON-INFRINGEMENT, EXPRESS OR IMPLIED, ARE SPECIFICALLY DISCLAIMED AND EXCLUDED.