Common use of Proprietary Rights Indemnification Clause in Contracts

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 hereunder. (b) ▇▇▇▇▇▇▇.▇▇▇ has no liability for any claim arising out of or related to (i) a modification of the Software by anyone other than ▇▇▇▇▇▇▇.▇▇▇ without ▇▇▇▇▇▇▇.▇▇▇'s prior written consent where such modification was outside of the scope of use of the Software as reasonably contemplated by the Documentation and, but for such modification there would be no infringement; (ii) a combination of the Software with any third party software or hardware not specifically recommended by ▇▇▇▇▇▇▇.▇▇▇ in its Documentation where such combination is the cause of such infringement; or (iii) 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, provided that ▇▇▇▇▇▇▇.▇▇▇ notified GE that a current version was available to correct known infringing functionality; and i) GE shall have had the option to receive such release at no charge, on an immediate basis, and ii) ▇▇▇▇▇▇▇.▇▇▇ has promptly notified GE in writing of recommendations to implement such release so as to minimize any disruption and costs to GE for ongoing Operational use of the Software; and iii) GE has applied commercially reasonable judgment to endeavor to accept ▇▇▇▇▇▇▇.▇▇▇'s proposed recommendations. However, if after applying reasonable judgment, GE concludes that the implementation of such release by GE would have involved significant disruption or cost to GE, then ▇▇▇▇▇▇▇.▇▇▇ shall remain liable under this Section 5.0 absent a mutually agreeable resolution. (c) The rights granted to GE under this Section 5.0 shall be GE's sole and exclusive remedy for any alleged infringement of any patent, copyright, trade secret or other proprietary rights except where the alleged infringement of any such right is asserted by GE to be an infringement of a GE right, then the parties agree that no such limitation as to remedy set forth above shall apply.