Common use of Materials/Proprietary Infringement Clause in Contracts

Materials/Proprietary Infringement. Unless otherwise expressly provided in this Contract, Contractor shall be solely responsible for clearing the right to use any patented or copyrighted materials in the performance of this Contract. Contractor warrants that any software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Contractor shall indemnify and defend the County against any claim by a third party that the Contractor Software infringes a valid U.S. Patent claim or otherwise infringes a third party’s intellectual property provided that the County (i) provides Contractor prompt written notice of the claim, (ii) permits Contractor to defend, compromise, settle and/or appeal such claim and shall not settle or compromise any claim without Contractor’s prior written consent; however, Contractor shall have no obligation to indemnify the County or County indemnitees if the alleged infringement or violation is based on: a. Any modification, configuration, implementation or alteration to or of the Contractor Software performed by anyone (including but not limited to the County and its indemnitees) other than Contractor; or b. Contractor compliance with County designs, specifications, modification instructions, configuration instructions, or implementation instructions if Contractor is unable to follow such designs, specifications, modification instructions, configuration instructions, or implementation instructions without infringement or violation; or c. Combination, operation or use with software, hardware, information, data, or other materials, not approved or supplied by Contractor, if infringement (including, without limitation, contributory infringement) would have been avoided by use without such software, hardware, information, data, or other materials; or d. Use of a superseded or altered release of the Contractor Software if the infringement would have been avoided by use of the current unaltered release of the Contractor Software. Notwithstanding anything to the contrary in the foregoing, should the County’s right to continue to use the Contractor Software pursuant hereto be subject to a claim that it infringes or misappropriates a valid patent or copyright or other intellectual property right, or if Contractor reasonably believes such a claim may arise, Contractor may fulfill its obligations under this Section H by, in Contractor’s sole discretion and at no cost to the County: i. Procuring for the County the right or license to continue to use the Contractor Software; ii. Modifying the Contractor Software to render it non-infringing but substantially functionally equivalent to the Contractor Software prior to such modification.

Materials/Proprietary Infringement. Unless otherwise expressly provided in this Contract, Contractor shall be solely responsible for clearing the right to use any patented or copyrighted materials in the performance of this Contract. Contractor warrants that any software materials (e.g., software, documentation, specifications) or any part thereof, as modified through services provided hereunder will not infringe upon or violate misappropriate any United States, Canadian, or European patent, copyright, trademark, trade secret, or any other proprietary right, or trade secret right of any third party. Contractor agrees that it shall indemnify defend and defend the hold County against and County Indemnitees harmless from any claim by a third party that the Contractor Software infringes a valid U.S. Patent claim or otherwise infringes a third party’s intellectual property and all such costs and damages awarded, provided that the County (i) provides Contractor is given prompt written notice of such claim and is given information, reasonable assistance, and to defend or settle the infringement claim. In the defense or settlement of a claim pursuant to paragraph H, Contractor shall: (i) obtain for County the right to continue using the Goods to the full extent contemplated by this Contract; (ii) permits replace or modify the Goods so that it becomes non-infringing while performing in a substantially similar manner to the original system and meeting the requirements of this Contract; or (iii) if remedies (i) and (ii) are not reasonably available, then Contractor to defendshall grant County a depreciated refund pro-rata based upon a seventy-two (72) month life, compromisemeasured from the original installation date of the Goods. County then shall have the option of immediately terminating the Contract, settle and/or appeal such claim and or applicable portions thereof, without penalty. Contractor shall not settle or compromise have any claim without Contractor’s prior written consent; however, Contractor shall have no obligation to indemnify the County or County indemnitees liability if the alleged infringement or violation is based on: a. Any modification, configuration, implementation upon the use or alteration to or sale of the Contractor Software performed by anyone (including but Goods in combination with other products or devices not limited to the County and its indemnitees) other than Contractor; or b. Contractor compliance with County designs, specifications, modification instructions, configuration instructions, furnished or implementation instructions if Contractor is unable to follow such designs, specifications, modification instructions, configuration instructions, or implementation instructions without infringement or violation; or c. Combination, operation or use with software, hardware, information, data, or other materials, not approved or supplied by Contractor. CONTRACTOR DISCLAIMS ALL OTHER LIABILITY FOR PATENT, if infringement (includingCOPYRIGHT OR TRADEMARK INFRINGEMENT, without limitationINCLUDING ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, contributory infringement) would have been avoided by use without such software, hardware, information, data, or other materials; or d. Use of a superseded or altered release of the Contractor Software if the infringement would have been avoided by use of the current unaltered release of the Contractor Software. Notwithstanding anything to the contrary in the foregoing, should the County’s right to continue to use the Contractor Software pursuant hereto be subject to a claim that it infringes or misappropriates a valid patent or copyright or other intellectual property right, or if Contractor reasonably believes such a claim may arise, Contractor may fulfill its obligations under this Section H by, in Contractor’s sole discretion and at no cost to the County: i. Procuring for the County the right or license to continue to use the Contractor Software; ii. Modifying the Contractor Software to render it non-infringing but substantially functionally equivalent to the Contractor Software prior to such modificationAND THE RIGHTS STATED HEREIN ARE THE COUNTY’S SOLE AND EXCLUSIVE REMEDY.