Common use of Proprietary Rights Indemnification Clause in Contracts

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. NetIQ Trancell 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 proceedingsproceeding, pending or threatened alleging any such infringement that have not been disclosed to Tech Datainfringement. 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 Trancell 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 Trancell 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 Trancell 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 Trancell 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. NetIQTrancell's obligations under this Section 6.2 shall survive termination or expiration of this Agreement.

Proprietary Rights Indemnification. NetIQ hereby Chordiant represents and warrants ---------------------------------- that as of the Effective Date: no Product provided under this Agreement is the subject of any litigation ("Litigation"), furthermore, if a Product becomes the subject of Litigation after the Effective Date Chordiant will immediately notify EDS of such Litigation. EDS may terminate any License, and receive a full refund of any amounts paid for such Product after the date legal process regarding such Litigation has been served on Chordiant. Further; Chordiant represents and warrants that to Chordiant's knowledge, (i) Chordiant has all right, title, ownership interest, and/or marketing rights necessary to provide the Products to EDS, and (ii) as of the Effective Date each License, the Products and the sale their sale, license, and use of the Products hereunder do not and shall not directly or indirectly violate or infringe upon any copyright, patent, trademarktrade secret, trade secret or other proprietary or intellectual property right of any third party, and that there are no suits party or proceedings, pending contribute to such violation 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 infringement. (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 Chordiant shall indemnify and hold Tech Data, Tech Data's parent, affiliates EDS and subsidiaries Product end users and their respectiverespective successors, officers, directors, employees employees, and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs costs, and expenses, which they or any of them incur or become obligated to pay expenses (including legal fees) resulting from or arising out of any Litigation, any breach or claimed breach of the foregoing warrantywarranties, or which is based on a claim that each License, the Products and their sale, license, and use hereunder do not, and shall not directly or indirectly violate or infringe upon any copyright, patent, trade secrete, or other proprietary or intellectual property right of any third party, or contribute to such violation or infringement ("Infringement"), and Chordiant shall defend and settle, at its expense, all suits or proceedings arising therefrom. Tech Data EDS shall inform NetIQ Chordiant of any such suit or proceeding filed against Tech Data EDS, shall provide all reasonable assistance and cooperation, at Chordiant's expense, and shall have the right, but not the obligation, right to participate in the defense of any such suit or proceeding at Tech Dataits expense and through counsel of its choosing. Chordiant shall notify EDS of any actions, claims or suits against Chordiant based on an alleged Infringement of any party's expenseintellectual property rights in and to the Products. NetIQ shallIn the event an injunction is sought or obtained against use of the Products or in EDS' opinion is likely to be sought or obtained, Chordiant shall promptly, at its option and expense, either (iA) procure for Tech Data, its Customers EDS and End Users Product end users the right to continue to use the infringing Product as set forth in this Agreement, or (iiB) replace, to the extent Products are available, replace or modify the Product infringing Products to make its use non-non- infringing while being capable of performing the same function without degradation of performance. If If, after the use of reasonable best efforts, neither option (A) or (B) is accomplished by Chordiant within thirty (30) days of the effective date of an injunction then Chordiant will refund the unamortized portion of the Charges paid to Chordiant for such Product amortized on a five (5) year straight line basis from the Acceptance Date of such Product, and any prepaid amounts associated with the affected Product. (b) The provisions of the foregoing alternatives indemnity shall not apply with respect to any instances of alleged Infringement based upon or arising out of: (i) alterations to Products where such alleged Infringement would not have occurred but for such alteration (except for those alterations made by Chordiant, third parties retained by Chordiant, or otherwise made prior to EDS' receipt of said Product); (ii) failure of EDS to use updated Products that are provided by Chordiant (at no cost to EDS) and were provided to avoid Infringement; provided such update is reasonably availableidentified in writing as being provided for such purpose; (iii) use of any Products in connection with or in combination with any equipment, NetIQ shall accept a return of the Products from Tech Datadevices or software which have not been supplied or recommended by Chordiant, at NetIQ's sole cost and expense, and shall refund to Tech Data the full amount of the price paid by Tech Data where such alleged Infringement would not have occurred but 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 Productsuch Products in connection with or in combination with such equipment, if the Product is used devices or software; or (iv) use of Products in a manner or with equipment for which it was same were neither designed nor contemplated as reflected in the Documentation. Notwithstanding any other provisions hereof, the forgoing indemnity shall not reasonably intended. NetIQ's apply with respect to any Infringement based upon EDS activities associated with such infringing Product after Chordiant has completed performance of its replace, repair or refund obligations under this Section 6.2 shall survive termination or expiration of this Agreementin (a) above. (c) THE FOREGOING SECTIONS 5.2(a) AND 5.2(b) STATE THE SOLE AND EXCLUSIVE REMEDY OF EDS AND THE ENTIRE LIABILITY AND OBLIGATION OF CHORDIANT WITH RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF A THIRD PARTY BY THE PRODUCTS OR ANY PART THEREOF.

Proprietary Rights Indemnification. NetIQ hereby represents (a) CBT shall indemnify CL and warrants ---------------------------------- hold it harmless from any and all damages, liabilities, costs and expenses (including but not limited to reasonable attorneys' fees) incurred by CL as a result of any claim (or a claim by an end user that is related to a claim) that the Products and Courseware or the sale and use of the Products do not infringe upon Trademarks or any part thereof infringes any patent, copyright, patent, trademark, trademark or trade secret or other proprietary or intellectual property right of any third party, and provided 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 CL promptly notifies CBT 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 writing of any such suit claim and CBT shall control and defend or proceeding filed against Tech Data settle any such claim at CBT's expense and with CBT's choice of counsel. CL shall cooperate with CBT, at CBT's expense, in defending or settling such claim and CL may join in defense with counsel of its choice at its own expense. CL may not settle any claim without CBT's prior written consent. Following notice of any claim with respect to which CL believes itself entitled to indemnification under this section, CBT 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, right at its option and expense, either expense to (i) procure for Tech Data, its Customers CL and End the End-Users the right to continue or license to use the Product Courseware as set forth in this Agreement, or delivered; (ii) replace, to the extent Products are available, or modify the Product infringing materials so as to make its use render them non-infringing while being capable of performing infringing; (iii) replace the same function without degradation of performance. If neither of the foregoing alternatives Courseware or parts thereof with other functionally equivalent software; or (iv) if (i) or ), (ii) is reasonably available, NetIQ shall accept a return of the Products from Tech Data, at NetIQ's sole cost and expense(iii), and shall each of them, are not commercially feasible, terminate this Agreement and refund to Tech Data the full amount of the price CL amounts paid by Tech Data for said returned Productsunsold inventory, less any price protection credits, but not including any early payment or prepayment discounts. NetIQ which inventory CL shall promptly return to CBT. (b) CBT shall have no liability under this Section 6.2 for any infringement based on (i) the use of the Courseware other than as set forth in the Documentation; (ii) the modification of the Courseware by any Productparty other than CBT if such infringement would have been avoided by the use of the unmodified Courseware; or (iii) the combination or use of the Courseware with other software, items or processes not furnished by CBT if such infringement would have been avoided by the Product is used in use of the Courseware alone. If the Courseware being distributed infringes an intellectual property right of a manner third party, CL shall have up to 90 days (after a new release of the Courseware that does not infringe has been provided to CL) to begin distribution of such new release. CBT shall have no liability or with equipment obligation to indemnify pursuant to this Section for which it any infringement violation due to use of Courseware by an end user that was not reasonably intendedprovided with a new release within such ninety (90) day period. NetIQ's obligations under this Section 6.2 shall survive termination or expiration of this Agreement.THIS SECTION 4.2

Proprietary Rights Indemnification. NetIQ VENDOR 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 threatened, alleging any such infringement that have not been disclosed to Tech Datainfringement. 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 VENDOR shall indemnify and hold Tech Data, Tech Data's parent, affiliates and subsidiaries and their respective, 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 VENDOR 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 VENDOR 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 VENDOR shall accept a return of the Products from Tech Data, at NetIQVENDOR'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 VENDOR 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. NetIQVENDOR's obligations under this Section 6.2 shall survive termination or expiration of this Agreement.

Proprietary Rights Indemnification. NetIQ hereby represents and warrants ---------------------------------- that the Products and the sale and use of the Products do not infringe upon any copyright11.1 Seller shall, patentat its expense, trademark, trade secret or other proprietary or intellectual property right of any third partysettle and/or defend, and that there are no suits or proceedingsshall indemnity Purchaser against, 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 and 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 pay all actions, claims, lossescosts, damages, liabilitiesand attorneys’ fees (other than attorneys’ fees and punitive damages attributable to acts of Purchaser) finally awarded in, awardsany demand, costs and expensesclaim, which they suit, action or any proceeding by a third party against Purchaser to the extent based upon a finding that the design or construction of them incur or become obligated to pay resulting from or arising out the Product, as furnished, infringes the intellectual property rights of such third party provided that Purchaser promptly notifies Seller in writing of any breach or claimed breach allegation of such infringement and Seller is given the foregoing warranty. Tech Data shall inform NetIQ right at its expense to settle such charge and, through attorneys of any such suit or proceeding filed against Tech Data and shall have the right, but not the obligationits own choice, to participate in defend or control the defense of any suit based upon such charge; and the entire obligation of Seller hereunder to indemnify Purchaser shall not exceed the total amount paid to Seller by Purchaser for all Products purchased under this Agreement. 11.2 In addition, in the event that the use of the Product becomes, or in the opinion of Seller may become the subject of any claim, suit or proceeding at Tech Data's expense. NetIQ shallor if the manufacture, use or sale of the Product is enjoined, Seller may, at its option and expense, either (i) procure do one or more of the following: a. obtain for Tech Data, its Customers and End Users Purchaser the right to continue use the Product; b. modify the Product so that it becomes noninfringing or replace the Product with a noninfringing product, while remaining in compliance with Seller’s published specifications in effect at the date of this Agreement; in all material respects; or c. if Seller cannot reasonably effect (a) or (b) above, cease to deliver the Product to Purchaser and allow Purchaser to return the allegedly infringing Product to Seller, and upon return pay to Purchaser an amount equal to all amounts paid by Purchaser to Seller for the Product less depreciation (based on a five-year life, with straight-line depreciation) up to the time that Purchaser ceases to use the Product as set forth in this Agreement, a result of such claim. Seller shall communicate and consult with Purchaser as to the ability of Seller to effect alternatives (a) or (iib) replaceabove and the resulting impact on any Product or Product availability or Delivery Schedule. In the event Seller concludes that it cannot reasonably effect (a) or (b), then Seller shall work with Purchaser in order to minimize the extent Products are available, costs and disruption to Purchaser’s business resulting from such action. Should the System or modify the Product to make its use any non-infringing while being capable Product become inoperable due to cessation of performing delivery under (c) above of an allegedly infringing Product, Purchaser shall have the same function without degradation of performance. If neither right to return the inoperable Products and upon return, Seller shall pay to Purchaser an amount equal to all amounts paid by Purchaser to Seller for the returned Products less depreciation (based on a five-year life, with straight-line depreciation) up to the time that the Products become inoperable as a result of the foregoing alternatives (i) or (ii) is reasonably availableinfringement claim. 11.3 Notwithstanding any other provision of this Paragraph, 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 Seller shall have no liability under this Section 6.2 for any infringement based on to the extent arising from or occurring as a result of: a. use of any the Product in combination with other items unless Seller sold, made or specifically recommended them all as a combination; b. incorporation of a specific design or modification at the request of Purchaser, other than a request for a particular feature where Purchaser does not mandate the mode of implementing such new feature; or c. the failure by Purchaser to implement changes, replacements or new releases recommended by Seller and made available at no-cost to Purchaser, where the infringement would be avoided by such changes, replacements or new releases, and where the Product would still materially conform to the Specifications following such changes, replacements or new releases. 11.4 This Section sets forth the entire liability of Seller to Purchaser with respect to the infringement of intellectual property by the Product, if the Product is used in a manner and Seller makes no warranty of noninfringement, express 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 Agreementimplied.

Proprietary Rights Indemnification. NetIQ hereby represents and warrants ---------------------------------- KOFAX shall defend any suit or proceeding brought against Tech Data based on a claim of a third party that the Products and the sale and use Product(s), or any part thereof, furnished by KOFAX constitutes an infringement of any patent, copyright, trademark of the Products do not infringe upon any copyright, patent, trademark, trade secret US or other proprietary or third party intellectual property right right, provided that KOFAX is notified promptly in writing and given Authority, information and assistance (at KOFAX's expense) for the defense 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 (band KOFAX will pay all damages and costs, including attorneys fees in connection therewith. In case the Product(s) if NetIQ supplies Tech Data with said Productsfurnished by KOFAX, 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 rightpart thereof, but not the obligationis enjoined, to participate in the defense of any such suit or proceeding at Tech Data's expense. NetIQ KOFAX shall, at its expense and option and expense, either (i) procure for Tech Data, its Customers and End Users Data the right to continue to use using the Product as set forth in this Agreement, or Product(s); (ii) replace, to replace the extent Products are available, or modify the Product to make its use same with non-infringing while being capable of performing Product(s); (iii) modify the same function without degradation of performance. If neither of the foregoing alternatives (iProduct(s) so it becomes non-infringing; or (iiiv) is reasonably available, NetIQ grant Tech Data credit for such equipment at the purchase price and accept its return. KOFAX shall accept a return of the Products from Tech Data, at NetIQ's sole cost and expense, and shall refund not be liable to Tech Data hereunder if 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 patent infringement or prepayment discounts. NetIQ shall have no liability under this Section 6.2 for any infringement claim hereof is based on upon the use of any the Product in connection with other Products not reasonably intended for use with the Product, if the Product is used or in a manner or with equipment for which it the KOFAX Product(s) was not reasonably intendeddesigned, or where the Product(s) was modified by or for Tech Data in a manner to become infringing. NetIQ's obligations under this Section 6.2 shall survive termination or expiration of this AgreementIN NO EVENT SHALL KOFAX BE LIABLE TO TECH DATA UNDER THIS PARAGRAPH FOR CONSEQUENTIAL OR SPECIAL DAMAGES EXCEPT WHERE A THIRD PARTY OBTAINS SUCH DAMAGES AGAINST TECH DATA. EXCEPT AS EXPRESSLY SET FORTH HEREIN, KOFAX SHALL HAVE NO LIABILITY OR OBLIGATION TO TECH DATA WITH RESPECT TO PATENT OR COPYRIGHT INFRINGEMENT MATTERS.

Proprietary Rights Indemnification. NetIQ hereby GMI represents and warrants ---------------------------------- that it is the sole owner of the Software and the GMI Deliverables, or has procured the Software and GMI Deliverables under valid licenses from the owners thereof, and GMI further represents and warrants that it has full power and authority to grant the rights herein granted without the consent of any other person. GMI shall defend, indemnify and hold GE harmless from and against any claim, suit, or other proceeding brought against GE based on an allegation that the Products GMI Software or the GMI Deliverables, or any elements thereof, when used in accordance with this Agreement, violates or infringes any patent, copyright, trade mark, or trade secret right arising under the law of [**], or that th▇ Third Party Software or any elements thereof, when used in accordance with this Agreement, violates or infringes any patent, copyright, trade mark, or trade secret right arising under the law of [**], provi▇▇▇ that GMI is notified promptly in writing of such allegation, suit, or proceeding, is given sole control of the defense thereof and all related settlement [**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. negotiations, and is given full and complete authority, information and assistance (at GMI's expense) for the sale defense of same. GMI shall pay without limitation all damages and costs finally awarded against GE in, or incurred by GE in a settlement of, any such suit or proceeding, but GMI shall not be responsible for any compromise made by GE or its agents without GMI's consent. If such Software or the GMI Deliverables or any element thereof is held by a court of competent jurisdiction to be infringing, and its use is enjoined, GMI 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 software so that it becomes non-infringing. If neither of the actions specified for GMI in the preceding sentence is commercially feasible, then as a last resort, GMI shall [**]. GMI has no liability under this Section 6 for any claim to the extent it arises out of or is related to (i) any use of the Products do Software other than in accordance with this Agreement and the Documentation [**]; (ii) a modification of the Software by or on behalf of GE where, but for such modification, there would be no infringement and such modification was not infringe upon reasonably contemplated by the parties; (iii) a combination of the Software with any copyrightthird party software or hardware if but for such combination there would be no infringement and such combination was not reasonably contemplated by the parties; or (iv) the use of a version of Software other than the then current version if infringement would have been avoided with the use of the then current version, [**]. The rights granted to GE under this Section 6 shall be GE's sole and exclusive remedy for any alleged infringement of any patent, trademarkcopyright, 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 rights. Where the alleged 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 is asserted by GE to be an infringement of a GE right, but not the obligation, to participate in parties agree that 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 indemnity obligation 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 6 shall not reasonably intended. NetIQ's obligations under this Section 6.2 shall survive termination or expiration of this Agreementapply.

Proprietary Rights Indemnification. NetIQ (A) Subject to CMN's compliance with Section 4.3(b), Netopia hereby represents and warrants ---------------------------------- that the Products SDSL Router and the its sale and use of the Products hereunder do not infringe upon any copyright, patent, trademark, copyright or trade secret or other proprietary or intellectual property right of any third party. Netopia shall defend, 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 CMN and subsidiaries and their respectiveits directors, officers, directors, employees and agents harmless from and against any suit, claim, action, demand, liability, loss, cost or expense (including reasonable legal expenses and all actions, claims, losses, damages, liabilities, awards, costs and expenses, which they attorney's fees) finally awarded by a court or any tribunal of them incur or become obligated to pay competent jurisdiction resulting from or arising directly or indirectly out of any breach of the foregoing warranties; provided that Netopia is promptly informed and furnished a copy of each communication, notice or claimed other action relating to the alleged breach and is given authority, information and assistance necessary to defend or settle said suit or proceeding. (B) CMN hereby represents and warrants that the CopperRocket 201 and its sale and use hereunder do not infringe upon any copyright or trade secret of any third party. CMN further represents and warrants that CMN has all rights necessary to provide the Intellectual Property made available to Netopia in connection with the development of the SDSL Router. CMN shall defend, indemnify and hold Netopia and its directors, officers, employees and agents harmless from and against any suit, claim, action, demand, liability, loss, cost or expense (including legal expenses and reasonable attorney's fees) finally awarded by a court or tribunal of competent jurisdiction resulting from or arising directly or indirectly out of any breach of the foregoing warranty. Tech Data shall inform NetIQ warranties; provided that CMN is promptly informed and furnished a copy of any such each communication, notice or other action relating to the alleged breach and is given authority, information and assistance necessary to defend or settle said suit or proceeding filed against Tech Data and proceeding. (C) Netopia shall have the right, but not the obligationat its sole option and at its expense, 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 CMN the right to continue to use the Product infringing SDSL Router as set forth in this Agreement, or (ii) replace, to the extent Products are available, replace or modify the Product infringing SDSL Router 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 Netopia shall have no liability under this Section 6.2 4.3 for any infringement based on the use of the SDSL Router with any Product, other products not provided by Netopia; if the Product SDSL Router is not used in a manner or with equipment for which it was not reasonably intendeddesigned; if the SDSL Router is used in an infringing process; or if the claimed infringement arises out of information or materials delivered by CMN to Netopia in connection with development of the SDSL Router, or from a modification of the SDSL Router after delivery by Netopia. NetIQNetopia's obligations hereunder shall not apply to any infringement occurring after Netopia has received notice alleging the infringement unless Netopia has given CMN written permission for such continuing infringement. (D) CMN shall have the right, at its sole option and at its expense, to either (i) procure for Netopia the right to continue to use the infringing CopperRocket 201 as set forth in this Agreement, or (ii) replace or modify the infringing CopperRocket 201 to make its use non-infringing while being capable of performing the same function without degradation of performance. Netopia shall have no liability under this Section 6.2 shall survive termination or expiration for any infringement based on the use of this Agreement.the CopperRocket 201 with any other products not

Proprietary Rights Indemnification. NetIQ hereby Supplier represents and warrants ---------------------------------- that (i) at the Products and the sale and use time of the Products do not infringe upon any copyrightdelivery to EDS, 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 Product provided under this Agreement is the subject of a disclosed suit or proceedingany litigation ("Litigation"), or and (bii) if NetIQ supplies Tech Data with said ProductsSupplier has all right, then NetIQ will be liable title, ownership interest, and/or marketing rights necessary to Tech Data for those items in Section 6.5 below in addition provide the Products to its indemnification obligations stated hereinEDS. NetIQ Supplier shall indemnify and hold Tech Data, Tech Data's parent, affiliates EDS and subsidiaries Product end users and their respectiverespective successors, officers, directors, employees employees, and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs costs, and expensesexpenses (including legal fees) (collectively, which they or any of them incur or become obligated to pay the "Actions") resulting from or arising out of any breach a claim that the Products infringe upon any copyright, patent, trade secret or claimed breach other proprietary or intellectual property right of the any third party and Supplier shall defend and settle, at its expense, all suits or proceedings arising therefrom. The foregoing warranty. Tech Data indemnification shall only be provided if EDS shall promptly inform NetIQ Supplier of any such suit or proceeding filed against Tech Data and EDS, (iii) Supplier shall control the defense of any such claim or action so long as EDS shall have the right, but not the obligation, right to participate in the defense of any such suit or proceeding at Tech Dataits expense and through counsel of its choosing, and (iv) EDS reasonably cooperates in such defense at Supplier's expensecost. NetIQ The indemnification set forth in this Section 5.02 shall not apply if the use of the then most recent version of the Licensed Software would have prevented the Action; provided, however, that if EDS is entitled to such version as part of its maintenance and support Services hereunder and Supplier had knowledge of such Action and failed to inform EDS thereof, the provisions of the indemnification set forth in this Section 5.02 shall apply. Supplier shall notify EDS of any actions, claims, or suits against Supplier based on an alleged Infringement of any party's intellectual property rights in and to the Products. In the event an injunction is sought or obtained against use of the Products or in Supplier's opinion is likely to be sought or obtained, Supplier shall, at its option and expense, either (iA) procure for Tech Data, its Customers EDS and End Users Product end users the right to continue to use the infringing Product as set forth in this Agreement, or (iiB) replace, to the extent Products are available, replace or modify the Product infringing Products 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. NetIQ hereby represents 10.1 ECi, at its own expense, shall defend any third party action brought against Customer, to the extent that it is based on a claim that a Program used within the scope of the license granted hereunder infringes on a valid and warrants ---------------------------------- enforceable copyright registered in the United States or Canada, or a trade secret under governing law, and shall hold Customer harmless from any liability for any damages finally awarded by a court as a result of such a claim, or resulting from the settlement thereof, provided Customer notifies ECi promptly in writing of the action (and all prior claims relating to such action) and ECi has sole control of the defense and all negotiations for settlement or compromise of the claim. 10.2 In the event that any Program (in whole or in part) becomes, or ECi is advised by legal counsel that it is likely to become, the Products subject of an infringement claim, ECi may at its option either secure Customer's right to continue using such program, replace or modify it to make it noninfringing (in ways not materially adversely affecting the utility of the program), or if none of the foregoing alternatives is reasonably available or commercially feasible to ECi, discontinue the Program upon one month's notice and terminate Customer’s license and, where the sale Program is licensed on a perpetual basis, grant Customer a pro rata refund of the license fee paid for the discontinued Program, calculated on the basis of straight-line depreciation over a three-year useful life or, where the Program is licensed on a subscription basis, grant Customer a pro rata refund of the unused portion of any license fees paid in advance for the discontinued Program, based on the number of full months, if any, remaining in the duration of the subscription term 10.3 Notwithstanding anything in this Agreement, ECi shall have no liability for any claim of infringement based on (1) use of other than the current supported release of the Program, unaltered by anyone except ECi, if such infringement would have been avoided by the use of such current supported unaltered release and ECi has provided or offers to provide such release to Customer; (2) use or combination of the Program with programs or data not supplied or approved by ECi to the extent such use or combination caused the infringement; (3) use of the Products do Program for a purpose or in a manner for which the Program was 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, designed; or (b4) if NetIQ supplies Tech Data with said Products, then NetIQ will be liable any modification to Tech Data for those items in Section 6.5 below in addition to its indemnification obligations stated hereinthe Program made without ECi’s express written approval. 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 The remedies set forth in this Agreement, or (ii) replace, Section 10 constitute the sole and exclusive remedies of Customer and ECi's exclusive liability with respect to the extent Products are available, or modify the Product to make its use non-infringing while being capable claims for infringement of performing the same function without degradation proprietary rights 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 Agreementthird parties.

Proprietary Rights Indemnification. NetIQ hereby EDS represents and warrants ---------------------------------- that (i) at the time of delivery to SUPPLIER, no Licensed Software or Documentation provided under this Agreement is the subject of any litigation ("Litigation"), and (ii) EDS has all right, title, ownership interest, and/or marketing rights necessary to provide the Licensed Software and Documentation to SUPPLIER for remarketing hereunder and that the Products Licensed Software and the sale Documentation and their sale, license, and use of the Products hereunder do not and shall not directly or indirectly violate or infringe upon any copyright, patent, trademarktrade secret, trade secret or other proprietary or intellectual property right of any third party, and that there are no suits party or proceedings, pending contribute to such violation or threatened alleging any such infringement that have not been disclosed to Tech Data("Infringement"). 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 EDS shall indemnify and hold Tech Data, Tech Data's parent, affiliates SUPPLIER and subsidiaries and their respectiveits respective successors, officers, directors, employees employees, and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs and expensesexpenses (including legal fees) resulting from, which they or any of them incur or become obligated to pay resulting from or arising out of of, or relating to (i) any Litigation, (ii) any breach or claimed breach of the foregoing warrantywarranties, (iii) any claim of an Infringement, or (iv) any failure or claimed failure of any Licensed Software to perform in accordance with its Applicable Specifications, and EDS shall defend and settle, at its expense, all suits or proceedings arising therefrom. Tech Data SUPPLIER shall inform NetIQ EDS of any such suit or proceeding filed against Tech Data SUPPLIER and shall have the right, but not the obligation, right to participate in the defense of any such suit or proceeding at Tech Dataits expense and through counsel of its choosing. EDS shall notify SUPPLIER of any actions, claims, or suits against EDS based on an alleged Infringement of any party's expenseintellectual property rights in and to the Licensed Software or Documentation. NetIQ shallIn the event an injunction is obtained against use of the Licensed Software or Documentation or in SUPPLIER's opinion is likely to be obtained, EDS shall promptly, at its is option and expense, either (iA) procure for Tech Data, its Customers SUPPLIER and End Users of the Licensed Software, or Documentation, the right to continue to use ▇▇▇ the Product infringing Licensed Software or Documentation as set forth in this Agreement, or (iiB) replace, to the extent Products are available, replace or modify the Product infringing Licensed Software or Documentation 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. NetIQ hereby represents and warrants ---------------------------------- 10.1 ECI, at its own expense, shall defend any third party action brought against Customer, to the extent that it is based on a claim that a Program used within the Products and the sale and use scope of the Products do not infringe upon any copyrightlicense granted hereunder infringes on a valid and enforceable copyright registered in the United States, patent, trademark, or a trade secret or other proprietary or intellectual property right of any third partysecret, and that there are no suits shall hold Customer harmless from any liability for any damages finally awarded by a court as a result of such a claim, or proceedingsresulting from the settlement thereof, 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 provided Customer notifies ECI promptly in writing of the Products which are action (and all prior claims relating to such action) and ECI has sole control of the defense and all negotiations for settlement or compromise of the claim. 10.2 In the event that any Program module becomes, or ECI is advised by legal counsel that it is likely to become, the subject of a disclosed suit an infringement claim, ECI may at its option either secure Customer's right to continue using such program, replace or proceedingmodify it to make it noninfringing (in ways not materially adversely affecting the utility of the program), 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 none of the foregoing warranty. Tech Data shall inform NetIQ alternatives is reasonably available or commercially feasible to ECI, discontinue the Program upon one month's notice and terminate Customer’s license and grant Customer a prorata refund of any such suit or proceeding filed against Tech Data and the license fee paid for the discontinued Program, calculated on the basis of straight-line depreciation over a three-year useful life. 10.3 ECI shall have no liability for any claim of infringement based on (1) use of other than the rightcurrent supported release of the Program, but unaltered by anyone except ECI, if such infringement would have been avoided by the use of such current supported unaltered release and ECI has provided or offers to provide such release to Customer or (2) use or combination of the Program with programs or data not supplied or approved by ECI to the obligation, to participate in extent such use or combination caused the defense of any such suit or proceeding at Tech Data's expenseinfringement. 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 The remedies set forth in this Agreement, or (ii) replace, Section 10 constitute the sole remedies of Customer and ECI's exclusive liability with respect to the extent Products are available, or modify the Product to make its use non-infringing while being capable claims for infringement of performing the same function without degradation proprietary rights 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 Agreementthird parties.

Proprietary Rights Indemnification. NetIQ hereby represents and warrants ---------------------------------- 10.1 Exact, at its own expense, shall defend any third party action brought against Customer, to the extent that it is based on a claim that a Program used within the Products and the sale and use scope of the Products do not infringe upon any copyrightlicense granted hereunder infringes on a valid and enforceable copyright registered in the United States, patent, trademark, or a trade secret or other proprietary or intellectual property right of any third partysecret, and that there are no suits shall hold Customer harmless from any liability for any damages finally awarded by a court as a result of such a claim, or proceedingsresulting from the settlement thereof, 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 provided Customer notifies Exact promptly in writing of the Products which are action (and all prior claims relating to such action) and Exact has sole control of the defense and all negotiations for settlement or compromise of the claim. 10.2 In the event that any Program module becomes, or Exact is advised by legal counsel that it is likely to become, the subject of a disclosed suit an infringement claim, Exact may at its option either secure Customer's right to continue using such program, replace or proceedingmodify it to make it noninfringing (in ways not materially adversely affecting the utility of the program), 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 none of the foregoing warranty. Tech Data shall inform NetIQ alternatives is reasonably available or commercially feasible to Exact, discontinue the Program upon one month's notice and terminate Customer’s license and grant Customer a prorata refund of any such suit or proceeding filed against Tech Data and the license fee paid for the discontinued Program, calculated on the basis of straight-line depreciation over a three-year useful life. 10.3 Exact shall have no liability for any claim of infringement based on (1) use of other than the rightcurrent supported release of the Program, but unaltered by anyone except Exact, if such infringement would have been avoided by the use of such current supported unaltered release and Exact has provided or offers to provide such release to Customer or (2) use or combination of the Program with programs or data not supplied or approved by Exact to the obligation, to participate in extent such use or combination caused the defense of any such suit or proceeding at Tech Data's expenseinfringement. 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 The remedies set forth in this Agreement, or (ii) replace, Section 10 constitute the sole remedies of Customer and Exact's exclusive liability with respect to the extent Products are available, or modify the Product to make its use non-infringing while being capable claims for infringement of performing the same function without degradation proprietary rights 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 Agreementthird parties.

Proprietary Rights Indemnification. NetIQ USGN 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 threatened, alleging any such infringement that have not been disclosed to Tech Datainfringement. 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 USGN shall indemnify and hold Tech DataVitusa, Tech DataVitusa's parent, affiliates and subsidiaries and their respective, 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 Vitusa shall inform NetIQ USGN of any such suit or proceeding filed against Tech Data Vitusa and shall have the right, but not the obligation, to participate in the defense of any such suit or proceeding at Tech DataVitusa's expense. NetIQ USGN shall, at its option and expense, either (i) procure for Tech Data, Vitusa and its Authorized 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 noninfringing 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 USGN shall accept a return of the Products from Tech DataVitusa, at NetIQUSGN's sole cost and expense, and shall refund to Tech Data Vitusa the full amount of the price paid by Tech Data Vitusa for said returned Products, less any price protection credits, but not including any early payment or prepayment discounts. NetIQ USGN shall have no liability under this Section 6.2 4.2 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 intendedother than the Authorized Use. NetIQUSGN's obligations under this Section 6.2 shall survive termination or expiration of this Agreement.

Proprietary Rights Indemnification. NetIQ XEROX IMAGING hereby represents and warrants ---------------------------------- that XEROX IMAGING has all right, title, ownership interest and/or marketing rights necessary to provide the Products to Tech Data, and the Products and their sale and use of the Products hereunder 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 proceedingsproceeding, pending or threatened alleging any such infringement that have not been disclosed to Tech Datainfringement. 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 XEROX IMAGING shall indemnify and hold Tech Data, Tech Data's parentrelated and/or subsidiary companies, affiliates and subsidiaries Tech Data's customers and their respectiverespective successors, officers, directors, employees and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs and expenses, including but not limited to XEROX IMAGING Imagining's manufacture, sale, offering for sale, distribution, promotion or advertising of the Products supplied under this Agreement (including attorney's fees) 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, or by reason of any acts that may be committed suffered or permitted by XEROX IMAGING. XEROX IMAGING shall defend and settle, at its expense, all suits or proceedings arising therefrom. Tech Data shall inform NetIQ XEROX IMAGING of any such suit or proceeding filed against Tech Data and shall have the right, but not the obligation, right to participate in the defense of any such suit or proceeding at Tech Data's expenseexpense and through counsel of Tech Data's choosing. NetIQ shallIn the event an injunction is sought or obtained against the use of a Product , XEROX IMAGING shall within ninety (90) days of receipt of notice, at its option and expense, either (i) procure for Tech Data, its Customers customers and Product End Users the right to continue to use the infringing Product as set forth in this Agreement, or (ii) replace, to the extent Products are available, or modify the infringing 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 XEROX IMAGING shall have no liability under this Section 6.2 for any infringement based on the use of any equipment or software with any other equipment or software reasonably intended to be used with the Product, if the Product equipment or software is used in a manner or with equipment for which it was not reasonably intendeddesigned, or if the equipment or software is used in an infringing process. NetIQ's XEROX IMAGING Imagines obligations under this Section 6.2 hereunder shall survive termination or expiration of this Agreement.

Proprietary Rights Indemnification. NetIQ Red Hat hereby represents and warrants ---------------------------------- that the Products and the sale and use of the Products do not infringe upon on any copyright, patent, trademark, trade secret secret, or other proprietary or intellectual property right of any third party, and that there are no suits or proceedings, 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 Red Hat shall indemnify and hold Tech Data, Tech Data's parent, affiliates and subsidiaries and their respective, 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 shall, as soon as reasonably possible, inform NetIQ Red Hat 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 Tech Data will provide its reasonable assistance in the defense of any claim, suit or proceeding, at Red Hat's expense. Red Hat 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 Red Hat shall accept a return of the Products from Tech Data, at NetIQRed Hat's sole cost loss 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 Red Hat 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. NetIQRed Hat's obligations under this Section 6.2 shall survive termination or expiration of this Agreement.

Proprietary Rights Indemnification. NetIQ hereby Anacomp represents and warrants ---------------------------------- that (i) at the time of delivery to EDS, no Product provided under this Agreement is the subject of any litigation that will adversely affect such Product or EDS' use thereof ("Litigation"), and (ii) Anacomp has all right, title, ownership interest, licensing, and/or marketing rights necessary to provide the Products to EDS and that each License, the Products and the sale their sale, license, and use hereunder and that the performance of the Products Services do not and shall not directly or indirectly violate or infringe upon any copyright, patent, trademarktrade secret, trade secret or other proprietary or intellectual property right of any third party, and that there are no suits party or proceedings, pending contribute to such violation or threatened alleging any such infringement that have not been disclosed to Tech Data("Infringement"). 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 Anacomp shall indemnify and hold Tech Data, Tech Data's parent, affiliates EDS and subsidiaries Product end users and their respectiverespective successors, officers, directors, employees employees, and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs costs, and expenses, which they or any of them incur or become obligated to pay expenses (including legal fees) resulting from or arising out of any Litigation, any breach or claimed breach of the foregoing warrantywarranties, or which is based on a claim of an Infringement and Anacomp shall defend and settle, at its expense, all suits or proceedings arising therefrom. Tech Data EDS shall inform NetIQ Anacomp of any such suit or proceeding filed against Tech Data EDS and EDS shall have the right, but not the obligation, right to participate in the defense of any such suit or proceeding at Tech Dataits expense and through counsel of its choosing. Anacomp shall notify EDS of any actions, claims, or suits against Anacomp based on an alleged Infringement of any party's expenseintellectual property rights in and to the Products. NetIQ shallIn the event an injunction is sought or obtained against use of a Product or in EDS' opinion is likely to be sought or obtained, Anacomp shall promptly, at its option and expense, either (iA) procure for Tech Data, its Customers EDS and End Users Product end users the right to continue to use the infringing Product as set forth in this Agreement, or (iiB) replace, to the extent Products are available, replace or modify the infringing Product to make its use non-infringing while being capable of performing the same function without degradation of performance. If neither these options may only be executed by Anacomp at an unreasonable cost, then Anacomp may require EDS to discontinue use of the foregoing alternatives (i) or (ii) is reasonably available, NetIQ shall accept a Product and return of the Products from Tech Data, at NetIQ's sole cost and expense, and shall refund to Tech Data the full amount of EDS the price paid by Tech Data to Anacomp 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. NetIQ Castelle 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 threatened, alleging any such infringement that have not been disclosed to Tech Datainfringement. 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 Castelle shall indemnify and hold Tech Data, Tech Data's ’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 Inform Castelle 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 ’s expense. NetIQ Castelle 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 Castelle shall accept a return of the Products from Tech Data, at NetIQ's Castelle’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 Castelle 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 Castelle’s obligations under this Section 6.2 shall survive termination or expiration of this Agreement.

Proprietary Rights Indemnification. NetIQ AltiGen hereby represents and warrants ---------------------------------- that the Products and the sale and use of the Products do not infringe upon any United States or Canadian 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 threatened, alleging any such infringement that have not been disclosed to infringement. Tech Data's sole and exclusive remedy for any breach of this representation and warranty shall be to claim the indemnification provided in this Section 6.2. 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 AltiGen shall indemnify and hold Tech Data, Tech Data's parent, affiliates and subsidiaries and their respective, officers, 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 claim that Products infringe any United States or claimed breach property right of the foregoing warrantyany third party. Tech Data shall inform NetIQ (i) notify AltiGen in writing of any such suit or proceeding filed against Tech Data; (ii) give AltiGen the right to control and direct investigation, preparation, defense and settlement of any claim, suit or proceeding; and (iii) give reasonable assistance and cooperation for the defense of same, 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 shallAltiGen shall pay any resulting damages, costs and expenses finally awarded to a third party, but AltiGen shall not be liable for such amounts, or for settlements incurred by Tech Data without AltiGen's prior written authorization. If a Product is, or in AltiGen's opinion might be, held to infringe as set forth above, AltiGen may, at its option and expenseoption, either (i) replace or modify such Product so as to avoid infringement, or procure the right for Tech Data, its Customers Customers, and End End-Users the right to continue to the 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 and resale of performing the same function without degradation of performancesuch Product. If neither of such alternatives is, in AltiGen's opinion, reasonably possible, the infringing Product shall be returned to AltiGen, and at AltiGen's sole liability, in addition to its obligation to reimburse any awarded damages, costs and expenses set forth above, shall be to refund the purchase price paid for such Products by Distributor. The provisions of the foregoing alternatives indemnity shall not apply with respect to any instances of alleged infringement based upon or arising out of the use of such Products (i) in any manner for which the products were not designed, or for use other than the uses and distributions designated by AltiGen, (ii) is reasonably availablewhich have been modified by Distributor or any third party, NetIQ shall accept a return (iii) in connection with or in combination with any equipment, devices or software not intended for use with the Products, or (iv) subsequent to Tech Data's receipt of notice of any claimed infringement unless AltiGen has given Tech Data written permission to continue distribution 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 discountsallegedly infringing Product. 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. NetIQAltiGen's obligations under this Section 6.2 shall survive termination or expiration of this Agreement.

Proprietary Rights Indemnification. NetIQ hereby represents and warrants ---------------------------------- 10.1 Macola Software, at its own expense, shall defend any third party action brought against Customer, to the extent that it is based on a claim that a Program used within the Products and the sale and use scope of the Products do not infringe upon any copyrightlicense granted hereunder infringes on a valid and enforceable copyright registered in the United States, patent, trademark, or a trade secret or other proprietary or intellectual property right of any third partysecret, and that there are no suits shall hold Customer harmless from any liability for any damages finally awarded by a court as a result of such a claim, or proceedingsresulting from the settlement thereof, 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 provided Customer notifies Macola Software promptly in writing of the Products which are action (and all prior claims relating to such action) and Macola Software has sole control of the defense and all negotiations for settlement or compromise of the claim. 10.2 In the event that any Program module becomes, or Macola Software is advised by legal counsel that it is likely to become, the subject of a disclosed suit an infringement claim, Macola Software may at its option either secure Customer's right to continue using such program, replace or proceedingmodify it to make it noninfringing (in ways not materially adversely affecting the utility of the program), 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 none of the foregoing warranty. Tech Data shall inform NetIQ alternatives is reasonably available or commercially feasible to Macola Software, discontinue the Program upon one month's notice and terminate Customer’s license and grant Customer a prorata refund of any such suit or proceeding filed against Tech Data and the license fee paid for the discontinued Program, calculated on the basis of straight-line depreciation over a three-year useful life. 10.3 Macola Software shall have no liability for any claim of infringement based on (1) use of other than the rightcurrent supported release of the Program, but unaltered by anyone except Macola Software, if such infringement would have been avoided by the use of such current supported unaltered release and Macola Software has provided or offers to provide such release to Customer or (2) use or combination of the Program with programs or data not supplied or approved by Macola Software to the obligation, to participate in extent such use or combination caused the defense of any such suit or proceeding at Tech Data's expenseinfringement. 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 The remedies set forth in this Agreement, or (ii) replace, Section 10 constitute the sole remedies of Customer and Macola Software's exclusive liability with respect to the extent Products are available, or modify the Product to make its use non-infringing while being capable claims for infringement of performing the same function without degradation proprietary rights 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 Agreementthird parties.