Proprietary Rights Indemnification Clause Samples

Proprietary Rights Indemnification. Service Provider agrees to indemnify, defend, and hold Customer Indemnitees harmless from and against any and all Claims, including reasonable attorneys' fees, costs, and expenses incidental thereto, which may be suffered by, accrued against, charged to, or recoverable from any Customer Indemnitee, arising out of a claim that the Services infringes or misappropriates any United States or foreign patent, copyright, trade secret, trademark, or other proprietary right. In the event that Service Provider is enjoined from delivering either preliminary or permanently, or continuing to license to Customer, the Services and such injunction is not dissolved within thirty (30) days, or in the event that Customer is adjudged, in any final order of a court of competent jurisdiction from which no appeal is taken, to have infringed upon or misappropriated any patent, copyright, trade secret, trademark, or other proprietary right in the use of the Services, then Service Provider shall, at its expense: (a) obtain for Customer the right to continue using such Services; (b) replace or modify such Services so that it does not infringe upon or misappropriate such proprietary right and is free to be delivered to and used by Customer; or, (c) in the event that Service Provider is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do either of the aforementioned, Service Provider shall reimburse to Customer the full cost associated with Termination Assistance Services.

Proprietary Rights Indemnification. If notified promptly in writing of any judicial action brought against GM based on an allegation that GM's use of the Products infringes any patent, copyright, trademark, mask work or any rights of a third party or constitutes misuse or misappropriation of a trade secret (Infringement), CWC will defend such action at its expense and will pay the costs and damages awarded in any such action or the cost of settling such action. CWC shall have sole control of the defense of any such action and all negotiations for its settlement or compromise. If notified promptly in writing of any informal claim (other than a judicial action) brought against GM based on an allegation that GM's use of the Products constitute Infringement, CWC will pay the costs associated with resolving such claim and will pay the settlement amount (if any), provided that CWC shall have sole control of the resolution of any such claim and all negotiations for its settlement. In the event a final injunction shall be obtained against GM's use of the Products by reason of infringement, or in CWC' (i) procure for GM the right to continue to use the Products as contemplated hereunder, or (ii) replace or modify the Products to make its use hereunder non-infringing while being capable of performing the same function. If neither option as reasonably available to CWC, then the applicable Purchase Order or relevant part of such Purchase Order may be terminated at the option of either party hereto without further obligation or liability other than as provided in Section 16 hereof, except as follows: (i) Periodic Payment License, CWC shall promptly refund to GM a monthly prorated amount of the prepaid fees for the unexplored portion of the applicable payment period; (

Proprietary Rights Indemnification. Authorized Service Provider shall warrant that all elements of its solution, including all equipment, software, documentation, services and deliverables, do not and will not infringe upon or violate any patent, copyright, trade secret or other proprietary rights of any third party. In the event of any claim, suit or action by any third party against the State of Delaware, the State of Delaware shall promptly notify the Authorized Service Provider in writing and Authorized Service Provider shall defend such claim, suit or action at Authorized Service Provider’s expense, and Authorized Service Provider shall indemnify the State of Delaware against any loss, cost, damage, expense or liability arising out of such claim, suit or action (including, without limitation, litigation costs, lost employee time, and counsel fees) whether or not such claim, suit or action is successful. If any equipment, software, services (including methods), products or other intellectual property used or furnished by the Authorized Service Provider (collectively “Products”) is or in Authorized Service Provider’s reasonable judgment is likely to be, held to constitute an infringing product, Authorized Service Provider shall at its expense and option either: • Procure the right for the State of Delaware to continue using the Product(s); • Replace the product with a non-infringing equivalent that satisfies all the requirements of the contract; or • Modify the Product(s) to make it or them non-infringing, provided that the modification does not materially alter the functionality or efficacy of the product or cause the Product(s) or any part of the work to fail to conform to the requirements of the Contract, or only alters the Product(s) to a degree that the State of Delaware agrees to and accepts in writing.

Proprietary Rights Indemnification. NetIQ hereby represents and warrants ---------------------------------- that the Products and the sale and use of the Products do not infringe upon any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any third party, and that there are no suits or proceedings, pending or threatened alleging any such infringement that have not been disclosed to Tech Data. Regarding any suits or proceedings which have been disclosed to Tech Data, then NetIQ will either (a) not supply Tech Data with any of the Products which are the subject of a disclosed suit or proceeding, or (b) if NetIQ supplies Tech Data with said Products, then NetIQ will be liable to Tech Data for those items in Section 6.5 below in addition to its indemnification obligations stated herein. NetIQ shall indemnify and hold Tech Data, Tech Data's parent, affiliates and subsidiaries and their respective, officers, directors, employees and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs and expenses, which they or any of them incur or become obligated to pay resulting from or arising out of any breach or claimed breach of the foregoing warranty. Tech Data shall inform NetIQ of any such suit or proceeding filed against Tech Data and shall have the right, but not the obligation, to participate in the defense of any such suit or proceeding at Tech Data's expense. NetIQ shall, at its option and expense, either (i) procure for Tech Data, its Customers and End Users the right to continue to use the Product as set forth in this Agreement, or (ii) replace, to the extent Products are available, or modify the Product to make its use non-infringing while being capable of performing the same function without degradation of performance. If neither of the foregoing alternatives (i) or (ii) is reasonably available, NetIQ shall accept a return of the Products from Tech Data, at NetIQ's sole cost and expense, and shall refund to Tech Data the full amount of the price paid by Tech Data for said returned Products, less any price protection credits, but not including any early payment or prepayment discounts. NetIQ shall have no liability under this Section 6.2 for any infringement based on the use of any Product, if the Product is used in a manner or with equipment for which it was not reasonably intended. NetIQ's obligations under this Section 6.2 shall survive termination or expiration of this Agreement.

Proprietary Rights Indemnification. Service Provider agrees to indemnify, defend, and hold harmless Indemnitees from and against any and all Claims, including reasonable lawyers fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any Claim arising out of or relating to the Services infringing or misappropriating any patent, copyright, trade secret, trademark, or other proprietary right. In the event that Service Provider is enjoined from providing the Services and such injunction is not dissolved within thirty (30) calendar days, or in the event that Subscriber is adjudged, in any final order of a court of competent jurisdiction from which no appeal is taken, to have infringed upon or misappropriated any patent, copyright, trade secret, trademark, or other proprietary right in the access or use of the Services, then Service Provider shall, at its expense: (a) obtain for Subscriber the right to continue using such Services; (b) replace or modify such Services so that they do not infringe upon or misappropriate such proprietary right and is free to be used by Subscriber; or, (c) in the event that Service Provider is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do either of the aforementioned, Service Provider shall reimburse to Subscriber any prepaid Service Fees.

Proprietary Rights Indemnification a. Seller agrees: (i) to defend, hold harmless and indemnify Constellium, its successors, and Constellium’s Customer against claims of actual or alleged direct infringement (including literal infringement and infringement under the Doctrine of Equivalents) of, or contributory infringement of or inducement to infringe, any proprietary right (including any patent, trademark, copyright, moral, industrial design right or other proprietary right or misuse or misappropriation of trade secret) and against any resulting damages or expenses (including attorneys’ and other professionals’ fees, settlements, releases and judgments) to the extent such damages or expenses arise out of or relate in any way to the Products covered by this Purchase Order (including without limitation their manufacture, purchase, use and/or sale) or under any legal theory related to the Products, including such claims where Seller has provided only part of the Products, and Seller expressly waives any claim against Constellium that such infringement arose out of compliance with Constellium's specifications; (ii) to waive any claim against Constellium, including any hold harmless or similar claim, in any way related to a third-party claim asserted against Seller or Constellium for infringement of any proprietary right (including any patent, trademark, copyright, moral, industrial design right or other proprietary right or misuse or misappropriation of trade secret), including claims arising out of specifications furnished by Constellium; (iii) that Constellium, Constellium's subcontractors and Constellium’s Customer have the worldwide, irrevocable right and license to repair, reconstruct, rebuild, and make, and to have repaired, reconstructed, rebuilt, and made, the Products without payment of any royalty or other compensation to Seller or any other party; (iv) that manufactured parts based on Constellium's drawings or specifications may not be used for Seller's own use or sold to third parties without Constellium's express written authorization;

Proprietary Rights Indemnification. Licensor represents and warrants to the Licensee that no item of the Software Product provided under this License Agreement is currently the subject of any litigation known to Licensor, and, to its knowledge, Licensor has all right, title, ownership interest, and/or marketing rights necessary to provide the Software Product to Licensee and that each License, the Software Product and their use hereunder do not and shall not directly or indirectly violate or infringe upon any copyright, patent, trade secret, or other proprietary or intellectual property right of any third party or contribute to such violation or infringement (“Infringement”). Licensor shall indemnify and hold Licensee and its successors, officers, directors, employees, and agents harmless from and against any and all third party demands seeking damages as well as any defense expenses (limited to fees, costs, or expenses of hired or appointed attorneys; the costs of proceedings involved in the suit, including court reporter’s, arbitrator’s or mediator’s fees; and independent expert’s or special investigator’s fees, costs or expenses) resulting from or arising out of any claims, complaints or causes of action relating to the Software Product (so long as it has not been modified or altered in any fashion by anyone other than Licensor), any breach or claimed breach of the foregoing warranties, or any claim of an Infringement, and Licensor shall defend and settle, at its expense, all suits or proceedings arising therefrom. Licensee shall inform Licensor of any such suit or proceeding against Licensee. Licensor shall control the defense of any such claim or action but Licensee shall have the right to participate in the defense of any such suit or proceeding at its expense and through counsel of its choosing. Licensor shall notify Licensee of any actions, claims, or suits against Licensor based on an alleged Infringement of any party’s intellectual property rights in and to any component of the Software Product. In the event an injunction is sought or obtained against use of the Software Product or in Licensee’ opinion is likely to be sought or obtained, Licensor shall promptly, at its option and expense, either (i) procure for Licensee the right to continue to use the infringing Software Product as set forth in this License Agreement, or

Proprietary Rights Indemnification. (a) ▇▇▇▇▇▇▇.▇▇▇ represents and warrants that it is the sole owner of the Software, or has procured the Software under valid licenses from the owners thereof, and ▇▇▇▇▇▇▇.▇▇▇ further represents and warrants that it has full power and authority to grant the rights herein granted without the consent of any other person. ▇▇▇▇▇▇▇.▇▇▇ shall defend and indemnify and hold GE harmless against any amounts awarded in a settlement or final court decision arising from any claim, suit, or other proceeding brought against GE based on an allegation that the Software or any elements thereof, or the use of any Software furnished by ▇▇▇▇▇▇▇.▇▇▇ pursuant to this Agreement constitutes a violation or infringement of any worldwide copyright, trade secret, or other proprietary information right, or U.S. patent provided that ▇▇▇▇▇▇▇.▇▇▇ is notified promptly in writing of such allegation, suit, or proceeding and given full, complete, and exclusive authority, and complete information and assistance (at ▇▇▇▇▇▇▇.▇▇▇'s expense) for the defense of same. ▇▇▇▇▇▇▇.▇▇▇ shall pay without limitation all damages and costs incurred by GE with respect to such suits or proceedings, but ▇▇▇▇▇▇▇.▇▇▇ shall not be responsible for any compromise made by GE or its agents without ▇▇▇▇▇▇▇.▇▇▇'s consent. If such Software is held by a court of competent jurisdiction to constitute infringement, and its use is enjoined, ▇▇▇▇▇▇▇.▇▇▇ shall, at its own expense without limitation, either promptly procure the right for continued use of such Software by GE, or, if the performance thereof will not thereby be materially adversely affected promptly replace or modify such product(s) so that it becomes non-infringing. If neither of the actions specified for ▇▇▇▇▇▇▇.▇▇▇ in the preceding sentence is commercially feasible, then as a last resort, ▇▇▇▇▇▇▇.▇▇▇ shall accept return of such Software and refund to GE all fees paid by GE for such Software if such return of Software occurs within the five (5) year period beginning on the Effective Date, plus any unused maintenance fees paid for the Software and any costs incurred by GE in the removal of such Software and installation of alternative products. After such five (5) year period beginning with the sixth (6th) year, GE shall be entitled to a pro-rata refund based upon a five (5) year depreciation schedule. During the pendency of any claim against GE with respect to ▇▇▇▇▇▇▇.▇▇▇'s ownership or authority, GE may withhold payment of any sum otherwise required to be paid here...

Proprietary Rights Indemnification. Contractor shall warrant that all elements of its solution, including all equipment, software, documentation, services and deliverables, do not and will not infringe upon or violate any patent, copyright, trade secret or other proprietary rights of any third party. In the event of any claim, suit or action by any third party against the State of Delaware, the State of Delaware shall promptly notify the Contractor in writing, and Contractor shall defend such claim, suit or action at Contractor’s expense, and Contractor shall indemnify the State of Delaware against any loss, cost, damage, expense or liability arising out of such claim, suit or action (including, without limitation, litigation costs, lost employee time, and counsel fees) whether or not such claim, suit or action is successful. If any equipment, software, services (including methods) products or other intellectual property used or furnished by the Contractor (collectively ”Products”) is or in Contractor’s reasonable judgment is likely to be, held to constitute an infringing product, Contractor shall at its expense and option either: a. Procure the right for the State of Delaware to continue using the Product(s); Replace the product with a non-infringing equivalent that satisfies all the requirements of this Participating Addendum; or b. Modify the Product(s) to make it or them non-infringing, provided that the modification does not materially alter the functionality or efficacy of the product or cause the Product(s) or any part of the work to fail to conform to the requirements of this Participating Addendum, or only alters the Product(s) to a degree that the State of Delaware agrees to and accepts in writing.