By Licensor. Licensor shall defend, indemnify and hold harmless the Licensee and the Representatives of Licensee from and against any and all Losses asserted against, incurred, sustained or suffered by Licensee and/or the Representatives of Licensee as a result of, arising out of or relating to a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property of any third party existing as of the License Effective Date (each a “Infringement Claim”’); provided, however that Licensor shall have no obligation to Licensee under this section with respect to any Infringement Claim arising twenty four (24) months after the License Effective Date or to the extent arising from (i) a Licensee Improvement or any modifications to the Platform or any Licensor Intellectual Property made by or on behalf of Licensee or at Licensee’s request; (ii) Licensee’s breach of this Agreement, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such breach; (iii) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property in a manner not reasonably contemplated by Licensor, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use; (v) the combination of the Platform and Licensor Intellectual Property with any Licensee or third party software or other intellectual property, in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Platform or Licensor Intellectual Property so that it becomes non- infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property. Licensor shall indemnify, save and hold harmless Licensee and their respective representatives, from and against any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of third-party claims), reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing (herein, “Damages”), incurred in connection with, arising out of, resulting from or incident to (1) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Agreement, (2) any breach of any covenant or agreement made by the Licensor in or pursuant to this Agreement, or (3) operation of the Platform.
Appears in 2 contracts
Sources: Platform License Agreement (World Technology Corp.), Platform License Agreement (World Technology Corp.)
By Licensor. Licensor shall defend, indemnify and hold harmless the Licensee and the Representatives of Licensee from and against any and all Losses asserted against, incurred, sustained or suffered by Licensee and/or the Representatives of Licensee as a result of, arising out of or relating to a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property of any third party existing as of the License Effective Date (each a “Infringement Claim”’); provided, however that Licensor shall have no obligation to Licensee under this section with respect to any Infringement Claim arising twenty four (24) months after the License Effective Date or to the extent arising from (i) a Licensee Improvement or any modifications to the Platform or any Licensor Intellectual Property made by or on behalf of Licensee or at Licensee’s request; (ii) Licensee’s breach of this Agreement, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such breach; (iii) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property in a manner not reasonably contemplated by Licensor, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual PropertyProperty Licensee in connection with an Expanded Business, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such useuse in the Expanded Business; (v) the combination of the Platform and Licensor Intellectual Property with any Licensee or third party software or other intellectual property, in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Platform or Licensor Intellectual Property so that it becomes non- non-infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property. This Section 4.1 is Licensor’s sole and exclusive remedy for any claim that the Platform or any Licensor shall indemnify, save and hold harmless Licensee and their respective representatives, from and against any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether Intellectual Property infringes or not arising out of third-party claims), reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement misappropriates the Intellectual Property of any of third party and Licensor may not exercise any indemnity or similar monetary remedy under the foregoing (herein, “Damages”), incurred in connection with, arising out of, resulting from or incident to (1) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Purchase Agreement, (2) any breach of any covenant or agreement made by the Licensor in or pursuant to this Agreement, or (3) operation of the Platform.
Appears in 2 contracts
Sources: Platform License Agreement, Platform License Agreement (Ancestry.com Inc.)
By Licensor. Licensor shall defendrepresents, indemnify warrants and hold harmless covenants to Licensee that (a) it has the Licensee right and authority to enter into this Agreement and perform its obligations hereunder and this Agreement constitutes the Representatives legal, valid and binding obligation of Licensee Licensor enforceable in accordance with its terms, subject, however, to the effects of bankruptcy, insolvency, reorganization, moratorium and similar Laws from time to time in effect, as well as to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (b) it owns all right, title and against any interest in and all Losses asserted againstto the Patents and Know-How and has the full right and authority to grant the licenses set forth in Section 2 (Grant of License), incurred(c) there are no outstanding agreements, sustained assignments or suffered by Licensee and/or encumbrances inconsistent with the Representatives provisions of Licensee as a result of, arising out of said licenses and Licensor has the right to grant the licenses set forth in Section 2 without seeking the approval or relating to a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property consent of any third party existing party, (d) none of the Patents have been invalidated either wholly or partly by a court of law within the United States or abroad or by the United States Patent and Trademark Office or any of its foreign equivalents and there are no proceedings to do so as of the License Effective Date Date, (each a “Infringement Claim”’); providede) to Licensor’s best knowledge, however that Licensor shall have no obligation to Licensee under this section with respect to any Infringement Claim arising twenty four (24) months after the License Effective Date or to the extent arising from (i) a Licensee Improvement or any modifications to the Platform or any Licensor Intellectual Property made by or on behalf of Licensee or at Licensee’s request; (ii) Licensee’s breach of this Agreement, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such breach; (iii) Licensee’s or its Affiliates’ or sublicensees’ use Patents are valid and enforceable as of the Platform Effective Date, (f) to Licensor’s best knowledge, neither the Patents nor the Know-How infringe or misappropriate any Licensor Intellectual Property in a manner not reasonably contemplated by Licensorpatent, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use; (v) the combination of the Platform and Licensor Intellectual Property with any Licensee or third party software trade secret or other intellectual propertyproperty right of any third party, in each caseand (g) Licensor has not threatened or initiated any claim, not provided by suit or proceeding against any third party alleging that such third party has infringed or misappropriated any rights under the Patents and/or Know-How and, to the knowledge of Licensor, but only to the extent the infringement that no third party is at issue in infringing or misappropriating any such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Platform or Licensor Intellectual Property so that it becomes non- infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property. Licensor shall indemnify, save and hold harmless Licensee and their respective representatives, from and against any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of third-party claims), reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing (herein, “Damages”), incurred in connection with, arising out of, resulting from or incident to (1) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Agreement, (2) any breach of any covenant or agreement made by the Licensor in or pursuant to this Agreement, or (3) operation of the Platformrights.
Appears in 2 contracts
By Licensor. Licensor hereby represents and warrants that:
4.2.1 Licensor is the sole and exclusive owner of the entire right, title, and interest in and to the Licensed IP and has the right to grant the licenses granted herein;
4.2.2 except for the license to Licensee, the Licensed IP is not subject to any encumbrance, lien, license rights (including any covenant not to sue in respect thereto) or claim of ownership by any Third Party that would interfere with the rights granted under this Agreement;
4.2.3 during the Term, Licensor shall defendnot knowingly and intentionally encumber or diminish the rights granted to Licensee under this Agreement with respect to Licensed IP to the extent exclusively licensed to Licensee under this Agreement;
4.2.4 to Licensor’s knowledge, indemnify and hold harmless the Licensee Licensed Patent Rights are being diligently prosecuted in the respective patent offices in the Territory in accordance with applicable law, and the Representatives of Licensee from Licensed Patent Rights have been filed and against any maintained properly and correctly and all Losses asserted againstapplicable fees have been paid on or before the due date for payment prior to the Effective Date of this Agreement;
4.2.5 the conception, incurreddevelopment, sustained or suffered by Licensee and/or and reduction to practice of the Representatives of Licensee as a result of, arising out of or relating to a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property of any third party Licensed IP existing as of the License Effective Date (has not constituted or involved the misappropriation of trade secrets or other rights or property of any Third Party and the Licensed Products and the Licensed IP do not infringe, misappropriate or otherwise violate, the intellectual property rights of any Third Party;
4.2.6 each a “Infringement Claim”’); provided, however that Licensor shall have no obligation to Licensee under this section with respect Person who has or has had any rights in or to any Infringement Claim arising twenty four (24) months after Licensed Patent Rights, has assigned and has executed an agreement assigning its entire right, title, and interest in and to such Licensed Patent Rights to Licensor, and Licensor licensed such rights to Licensee, pursuant to this Agreement;
4.2.7 the License Effective Date Licensed IP represents all intellectual property owned or controlled by Licensor and any of its Affiliates that is necessary/useful to exploit the extent arising from (i) a Licensee Improvement or any modifications Licensed Products;
4.2.8 the Licensed IP is sufficient to enable the Platform or any Licensor Intellectual Property made manufacture of Licensed Products by or on behalf of Licensee Licensee; and
4.2.9 the Licensed IP, as far as Licensor is aware or at Licensee’s request; (ii) Licensee’s breach of this Agreementshould be aware, but only are not presently subject to the extent the third party any infringement that is at issue in such Infringement Claim or Losses would and have not have occurred or have existed but for such breach; (iii) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or been subject to any Licensor Intellectual Property in a manner not reasonably contemplated infringement by Licensor, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use; (v) the combination of the Platform and Licensor Intellectual Property with any Licensee or third party software or other intellectual property, in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Platform or Licensor Intellectual Property so that it becomes non- infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property. Licensor shall indemnify, save and hold harmless Licensee and their respective representatives, from and against any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of third-party claims), reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing (herein, “Damages”), incurred in connection with, arising out of, resulting from or incident to (1) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Agreement, (2) any breach of any covenant or agreement made by the Licensor in or pursuant to this Agreement, or (3) operation of the PlatformThird Party.
Appears in 2 contracts
Sources: Master License Agreement (Comstock Inc.), Master License Agreement (Comstock Inc.)
By Licensor. Licensor shall defend, indemnify and hold harmless the Licensee and the Representatives representatives of Licensee from and against any and all Losses asserted against, incurred, sustained or suffered by Licensee and/or the Representatives of Licensee as a result of, arising out of or relating to a claim that the Crowdfunding Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property of any third party existing as of the License Effective Date (each a an “Infringement Claim”’); provided, however that Licensor shall have no obligation to Licensee under this section with respect to any Infringement Claim arising twenty four one (241) months year after the License Effective Date or to the extent arising from (i) a Licensee Improvement or any modifications to the Crowdfunding Platform or any Licensor Intellectual Property made by or on behalf of Licensee or at Licensee’s request; (ii) Licensee’s breach of this Agreement, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such breach; (iii) Licensee’s or its Affiliates’ or sublicensees’ use of the Crowdfunding Platform or any Licensor Intellectual Property in a manner not reasonably contemplated by Licensor, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Crowdfunding Platform or any Licensor Intellectual PropertyProperty Licensee in connection with an Expanded Business, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such useuse in the Expanded Business; (v) the combination of the Crowdfunding Platform and Licensor Intellectual Property with any Licensee or third party software or other intellectual property, in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Crowdfunding Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Crowdfunding Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Crowdfunding Platform or Licensor Intellectual Property so that it becomes non- non-infringing without substantially compromising functions, features, or performance of the Crowdfunding Platform or the Licensor Intellectual Property. Licensor shall indemnify, save and hold harmless Licensee and their respective representatives, from and against any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of third-party claims), reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing (herein, “Damages”), incurred in connection with, arising out of, resulting from or incident to (1) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Agreement, (2) any breach of any covenant or agreement made by the Licensor in or pursuant to this Agreement, or (3) operation of the Platform.
Appears in 2 contracts
Sources: Crowdfunding Platform License Agreement (Blue Chip Capital Group Inc.), Crowdfunding Platform License Agreement (Blue Chip Capital Group Inc.)
By Licensor. The Licensor shall defendhereby represents, indemnify warrants and hold harmless covenants to the Licensee that:
(a) except as may otherwise be expressly notified to the Licensee in writing, the Licensor has and for the duration of this Agreement, will continue to have full right and title to the Patents, the Patent Applications, the Inventions, the Information, the Know-How, the Improvements and the Licensed Technology, except to the extent co-owned with Licensee;
(b) the Licensor has the right to grant the license and sublicense rights under this Agreement to the Licensee and the Representatives Licensee's sublicensees;
(c) the Licensor is entitled to make all patent applications which it has made, and the Licensor has not made knowing use of Licensee from and against any and all Losses asserted against, incurred, sustained intellectual property or suffered by Licensee and/or the Representatives of Licensee as a result of, arising out of or relating to a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property other rights of any third party existing as in the making of the License Effective Date patent applications;
(each a “Infringement Claim”’); providedd) all Patent Applications filed by the Licensor at the date of this Agreement have to the best knowledge of the Licensor been made in the prescribed form and in the prescribed manner;
(e) the Patents, however that the Patent Applications, the Inventions, the Information, the Know-How and the Improvements include or will include all technology owned by or registered in the name of the Licensor shall have no obligation to Licensee under this section with respect to any Infringement Claim arising twenty four (24) months after the License Effective Date or to which the extent arising from (i) a Licensee Improvement Licensor is beneficially entitled on or any modifications relating to the Platform Field and possessed, invented, developed or any Licensor Intellectual Property made acquired by or on behalf for the Licensor;
(f) all Inventions, Information, Know-How and Improvements supplied to the Licensee by the Licensor will be to the best of the knowledge and belief of the Licensor true, accurate, reliable and up-to-date; and
(g) Licensor (a) is the sole owner or exclusive licensee of the Licensed Technology, and except as Licensor has expressly informed Licensee or at Licensee’s request; (ii) Licensee’s breach in writing prior to the date of this Agreement, but only has not granted to any Third Party any license or other interest in the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such breachLicensed Technology; (iiib) Licensee’s or its Affiliates’ or sublicensees’ use is not aware of the Platform or any Licensor Intellectual Property in a manner not reasonably contemplated by LicensorThird Party patent, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use; (v) the combination of the Platform and Licensor Intellectual Property with any Licensee or third party software patent application or other intellectual propertyproperty rights that would be infringed (i) by practicing any process or method or by making, using or selling any composition which is claimed or disclosed in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim Patents or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Propertywhich constitutes Information and Know-How, or (yii) replace by making, using or modify the impacted portions selling Products; and (c) is not aware of any infringement or misappropriation by a Third Party of the Platform or Licensor Intellectual Property so that it becomes non- infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property. Licensor shall indemnify, save and hold harmless Licensee and their respective representatives, from and against any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of third-party claims), reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing (herein, “Damages”), incurred in connection with, arising out of, resulting from or incident to (1) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Agreement, (2) any breach of any covenant or agreement made by the Licensor in or pursuant to this Agreement, or (3) operation of the PlatformLicensed Technology.
Appears in 2 contracts
Sources: Licensing Agreement (Deltagen Inc), Licensing Agreement (Deltagen Inc)
By Licensor. Licensor hereby represents and warrants that:
4.2.1 Licensor is the sole and exclusive owner of the entire right, title, and interest in and to the Licensed IP and has the right to grant the licenses granted herein;
4.2.2 except for the license to Licensee, the Licensed IP is not subject to any encumbrance, lien, license rights (including any covenant not to sue in respect thereto) or claim of ownership by any Third Party that would interfere with the rights granted under this Agreement;
4.2.3 during the Term, Licensor shall defendnot knowingly and intentionally encumber or diminish the rights granted to Licensee under this Agreement with respect to Licensed IP to the extent exclusively licensed to Licensee under this Agreement;
4.2.4 to Licensor’s knowledge, indemnify and hold harmless the Licensee Licensed Patent Rights are being diligently prosecuted in accordance with applicable law, and the Representatives of Licensee from Licensed Patent Rights have been filed and against any maintained properly and correctly and all Losses asserted againstapplicable fees have been paid on or before the due date for payment prior to the Effective Date of this Agreement;
4.2.5 the conception, incurreddevelopment, sustained or suffered by Licensee and/or and reduction to practice of the Representatives of Licensee as a result of, arising out of or relating to a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property of any third party Licensed IP existing as of the License Effective Date (has not constituted or involved the misappropriation of trade secrets or other rights or property of any Third Party and the Licensed Products and the Licensed IP do not infringe, misappropriate or otherwise violate, the intellectual property rights of any Third Party;
4.2.6 each a “Infringement Claim”’); provided, however that Licensor shall have no obligation to Licensee under this section with respect Person who has or has had any rights in or to any Infringement Claim arising twenty four (24) months after Licensed Patent Rights, has assigned and has executed an agreement assigning its entire right, title, and interest in and to such Licensed Patent Rights to Licensor, and Licensor licensed such rights to Licensee, pursuant to this Agreement;
4.2.7 the License Effective Date Licensed IP represents all intellectual property owned or controlled by Licensor and any of its Affiliates that is necessary/useful to exploit the extent arising from (i) a Licensee Improvement or any modifications Licensed Products;
4.2.8 the Licensed IP is sufficient to enable the Platform or any Licensor Intellectual Property made manufacture of Licensed Products by or on behalf of Licensee Licensee; and
4.2.9 the Licensed IP, as far as Licensor is aware or at Licensee’s request; (ii) Licensee’s breach of this Agreementshould be aware, but only are not presently subject to the extent the third party any infringement that is at issue in such Infringement Claim or Losses would and have not have occurred or have existed but for such breach; (iii) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or been subject to any Licensor Intellectual Property in a manner not reasonably contemplated infringement by Licensor, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use; (v) the combination of the Platform and Licensor Intellectual Property with any Licensee or third party software or other intellectual property, in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Platform or Licensor Intellectual Property so that it becomes non- infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property. Licensor shall indemnify, save and hold harmless Licensee and their respective representatives, from and against any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of third-party claims), reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing (herein, “Damages”), incurred in connection with, arising out of, resulting from or incident to (1) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Agreement, (2) any breach of any covenant or agreement made by the Licensor in or pursuant to this Agreement, or (3) operation of the PlatformThird Party.
Appears in 2 contracts
Sources: Master License Agreement (Comstock Inc.), Master License Agreement (Comstock Inc.)
By Licensor. During the Term, Licensor shall defend, indemnify and hold Licensee harmless the Licensee and the Representatives of Licensee from and against any fine, penalty, loss, liability and all Losses asserted against, incurred, sustained or suffered expense (including reasonable attorneys' fees and court costs) incurred by Licensee and/or the Representatives of Licensee as a result ofof any claim, demand or action ("Infringement Claim") against Licensee based on, related to or arising out of or relating to a any claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee Licensed Technology infringes or misappropriates the Intellectual Property any patent or other intellectual property right of any a third party existing as of the License Effective Date (each a “Infringement Claim”’)party; provided, however however, that Licensor shall have no obligation liability pursuant to Licensee under this section with respect to Section 11.1 or otherwise for any Infringement Claim arising twenty four (24) months after the License Effective Date or to the extent arising from (i) a Licensee Improvement or any modifications to the Platform or any Licensor Intellectual Property made by or on behalf of Licensee or at Licensee’s request; (ii) Licensee’s breach of this Agreement, but only to the extent the third party infringement that is at issue in such Infringement Claim is proximately caused by (a) the misuse or Losses would not have occurred or have existed but for such breach; (iii) Licensee’s or its Affiliates’ or sublicensees’ use unapproved modification of the Platform or any Licensor Intellectual Property in a manner not reasonably contemplated Licensed Technology by LicensorLicensee, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use; (vb) the combination of the Platform and Licensor Intellectual Property with any failure by Licensee to use corrections updates, fixes, work-arounds or third party software or other intellectual property, in each case, not new releases provided by Licensor, but only (c) the modification or Improvement or Enhancement of any of the Licensed Technology by any person other than Licensor, or someone specifically approved by Licensor, (d) the use of the Licensed Technology in combination with software programs, data, hardware or equipment not provided or approved by Licensor, or (e) any modification, Improvement or Enhancement requested by Licensee in order to meet the extent Functional Requirements set forth on Exhibit C or otherwise or any Licensed Technology relating to FOURS. In the infringement that is at issue in such event of an Infringement Claim for which Licensor is responsible, or Losses would not have occurred if in Licensor's reasonable judgment an Infringement Claim for which Licensor is responsible is likely to be made, Licensor may, at its option and expense, or have existed but for such combination. If the Platform if a nonappealable final judgment against Licensee with respect to an Infringement Claim is entered, or any Licensor Intellectual Property becomes the subject in connection with an Infringement Claim, a temporary restraining order or injunction is issued against Licensee's use of any Infringement Claim or injunctionLicensed Technology, Licensor may (shall, at its option)expense, do one of the following to mitigate the Losses relating to the Infringement Claim: either (xi) procure for the Licensee (at Licensor’s expense) the right for Licensee to continue using the impacted portions of the Platform or Licensor Intellectual Property, Licensed Technology in accordance with this Agreement or (yii) replace or modify the impacted portions Licensed Technology in a functionally equivalent manner so that such Licensed Technology becomes noninfringing. In the event that the above remedies are not available within ninety (90) days of the Platform date any judgment described in the foregoing sentence becomes final and nonappealable or Licensor Intellectual Property so that it becomes non- infringing without substantially compromising functions, features, or performance of the Platform date of the issuance of any temporary restraining order or injunction described in the foregoing sentence, Licensee shall have the option to terminate this Agreement upon thirty (30) days' notice to Licensor Intellectual Property. without waiver of any additional remedies available at law or in equity in respect of any breach of Licensor's representations and warranties in Section 8 of this Agreement and without any obligation to make additional payments to Licensor hereunder provided that Licensee shall indemnify, save and hold harmless Licensee and their respective representatives, from and against any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of third-party claims), reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement thereupon cease use of any of the foregoing (herein, “Damages”), incurred licensed Technology in connection with, arising out of, resulting from or incident to (1) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Agreement, (2) any breach of any covenant or agreement made by the Licensor in or pursuant to this Agreement, or (3) operation of the Platformaccordance with Section 7.
Appears in 2 contracts
Sources: License Agreement (International Sports Wagering Inc), License Agreement (International Sports Wagering Inc)
By Licensor. Licensor shall defend, indemnify and hold harmless the Licensee and the Representatives of Licensee from and will defend or settle any suit or proceeding brought against any and all Losses asserted against, incurred, sustained or suffered Customer by Licensee and/or the Representatives of Licensee as a result of, arising out of or relating to third party based upon a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property Software constitutes an infringement of any existing and valid copyright, trademark or trade secret in the United States of such third party existing as of the License Effective Date (each any such suit or proceeding, a “Infringement Claim”’); provided, however provided that Licensor shall have no obligation to Licensee under this section with respect to any Infringement Claim arising twenty four (24) months after the License Effective Date or to the extent arising from Customer
(i) a Licensee Improvement or any modifications to the Platform or any promptly notifies Licensor Intellectual Property made by or on behalf in writing of Licensee or at Licensee’s request; such claim (ii) Licenseepromptly gives Licensor the right to control and direct the investigation, preparation, defense and settlement of such Claim with counsel of Licensor’s breach own choosing (provided that Customer will have the right to reasonably participate, at its own expense, in the defense or settlement of this Agreement, but only to the extent the third party infringement that is at issue in any such Infringement Claim or Losses would not have occurred or have existed but for such breachClaim); and (iii) Licenseegives assistance and full cooperation for the defense of same. Subject to Customer’s compliance with the foregoing requirements, Licensor will pay all damages and costs awarded by a court of competent jurisdiction against Customer in such Claim or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property in amounts payable pursuant to a manner not reasonably contemplated settlement agreed to by Licensor, but only to the extent the third party infringement that is at issue in such Infringement Claim will not be responsible for any cost, expense or Losses would not have occurred compromise incurred or have existed but made by Customer without Licensor’s prior written consent or for such non-contemplated use; (iv) Licensee’s any lost profits or its Affiliates’ other damage or sublicensees’ use of the Platform or loss suffered by Customer. If any Licensor Intellectual Property, but only Technology is in the opinion of Licensor likely to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use; (v) the combination of the Platform and Licensor Intellectual Property with any Licensee or third party software or other intellectual property, in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes does become the subject of any Infringement Claim or injunctiona claim of infringement, Licensor may (may, at its sole option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) Customer the right to continue using the impacted portions Licensor Technology, modify the affected materials to become non-infringing, or replace it with non-infringing Licensor Technology. If Licensor is not reasonably able to so modify or replace the Licensor Technology or otherwise secure for Customer the right to continue using the Licensor Technology, Licensor may terminate this Agreement and, upon return to it of all copies of the Platform Software and Documentation licensed hereunder, refund to Customer to refund the licensing fees paid less the portion of the license fees attributable to the period over which Customer actually used the Software, assuming full amortization of the Software over a period of three years. Notwithstanding the foregoing, the foregoing defense and indemnity obligations will not apply to any Claim based upon or Licensor Intellectual Propertyarising from (w) use of the Software in a manner for which it was not designed, not in accordance with applicable Documentation, or (y) replace or modify the impacted portions in violation of the Platform or Licensor Intellectual Property so that it becomes non- infringing without substantially compromising functions, features, or performance terms and conditions of the Platform or the Licensor Intellectual Property. Licensor shall indemnify, save and hold harmless Licensee and their respective representatives, from and against any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of third-party claims), reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing (herein, “Damages”), incurred in connection with, arising out of, resulting from or incident to (1) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Agreement, (2x) any breach modification of the Software by any covenant party other than Licensor, (y) any use of the Software in combination with hardware or agreement made software not provided or authorized by the Licensor in or pursuant to this AgreementLicensor, or (3z) operation use of the PlatformSoftware, when use of a subsequent software release which Licensor has made commercially available would have avoided such infringement. This Section 8(a) represents the sole and exclusive remedy of Customer and the entire liability and obligation of Licensor with respect to infringement or claims of infringement of any intellectual property right.
Appears in 1 contract
Sources: End User License Agreement
By Licensor. Licensor shall defend, indemnify and hold harmless the Licensee and the Representatives If notified promptly in writing of Licensee from and against any action (and all Losses asserted against, incurred, sustained or suffered by Licensee and/or the Representatives of Licensee as a result of, arising out of or relating to prior related claims) brought against LICENSEE based on a claim that the Platform Licensed Software infringes any valid U.S. patent, copyright or any Licensor Intellectual Property as delivered trade secret, LICENSOR shall defend such action at LICENSOR’s expense and pay all costs and damages finally awarded in such action or settlement which are attributable to Licensor by Licensee infringes or misappropriates such claim. LICENSOR shall have sole control of the Intellectual Property defense of any third party existing as such action and all negotiations for its settlement or compromise. LICENSEE shall cooperate fully with LICENSOR in the defense, settlement or compromise of any such action. Notwithstanding anything to the License Effective Date (each a “Infringement Claim”’); providedcontrary contained herein, however that Licensor LICENSOR shall not have no obligation any liability to Licensee under this section with respect to any Infringement Claim arising twenty four (24) months after the License Effective Date or LICENSEE to the extent arising from that any infringement or claim thereof is based upon (i) a Licensee Improvement use of the Licensed Software in combination with equipment or any modifications to software not supplied by LICENSOR where the Platform or any Licensor Intellectual Property made by or on behalf of Licensee or at Licensee’s request; Licensed Software would not itself be infringing, (ii) Licenseecompliance with LICENSEE’s breach of this Agreementdesigns, but only to the extent the third party infringement that is at issue in such Infringement Claim specifications or Losses would not have occurred or have existed but for such breach; instructions, (iii) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform Licensed Software in an application or any Licensor Intellectual Property in a manner environment for which it was not reasonably contemplated by Licensor, but only to the extent the third party infringement that is at issue in such Infringement Claim designed or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use modifications of the Platform or any Licensor Intellectual PropertyLicensed Software by anyone other than LICENSOR without LICENSOR's prior written approval. Notwithstanding the above, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use; (v) the combination of the Platform LICENSOR’s indemnification obligations shall be extinguished and Licensor Intellectual Property with any Licensee or third party software or other intellectual propertyrelieved if LICENSOR, in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option)discretion and at its own expense (a) procures for LICENSEE the right, do one of the following at no additional expense to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right LICENSEE, to continue using the impacted portions of Licensed Software; (b) replaces or modifies the Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Platform or Licensor Intellectual Property Licensed Software so that it becomes non- non-infringing, provided the modification or replacement does not adversely affect the specifications of the Licensed Software; or (c) in the event (a) and (b) are not practical, refund to Licensee the amortized license fees paid by LICENSEE with respect to the infringing without substantially compromising functions, featuresLicensed Software, or performance infringing portion thereof, based on a five (5) year amortization schedule. The obligations of LICENSOR to LICENSEE as set forth in the Platform or the Licensor Intellectual Propertyprevious paragraph do not apply to Third Party Products. Licensor shall indemnify, save LICENSOR hereby assigns to LICENSEE all intellectual property infringement indemnification benefits and hold harmless Licensee and their respective representatives, from and against any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of obligations that have been granted to LICENSOR by third-party claims), reasonable attorneys’ fees vendors regarding Third-Party Products to the extent that such benefits and all amounts paid in investigation, defense or settlement of any of the foregoing (herein, “Damages”), incurred in connection with, arising out of, resulting from or incident to (1) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Agreement, (2) any breach of any covenant or agreement made by the Licensor in or pursuant to this Agreement, or (3) operation of the Platformobligations can be assigned.
Appears in 1 contract
Sources: Master License Agreement
By Licensor. Licensor shall defendrepresents and warrants that:
(i) it has the full right, indemnify power, and hold harmless authority to enter into and fully perform its obligations under this Agreement and grant the rights granted by Licensor hereunder;
(ii) it has not and will not undertake any act or omission, and has not and will not enter into any agreement, which would violate or conflict with any of the rights granted to Licensee or Licensee’s exercise thereof, or prohibit or otherwise interfere with the performance of Licensor’s obligations, under this Agreement;
(iii) it owns and/or controls all rights, licenses, consents and permissions in and to the Representatives of Licensee from Licensed Content, including the Licensed Programs, Licensor Promotional Materials, Licensor Marks, metadata, and against any and all Losses asserted against, incurred, sustained other materials provided or suffered by Licensee and/or the Representatives of Licensee as a result of, arising out of or relating to a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property of any third party existing as of the License Effective Date (each a “Infringement Claim”’); provided, however that Licensor shall have no obligation to Licensee under this section with respect to any Infringement Claim arising twenty four (24) months after the License Effective Date or to the extent arising from (i) a Licensee Improvement or any modifications to the Platform or any Licensor Intellectual Property otherwise made available by or on behalf of Licensor to Licensee or at Licensee’s request; hereunder (iicollectively, the “Delivery Materials”) Licensee’s breach of this Agreement, but only to the extent necessary to grant the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such breach; (iii) Licensee’s or its Affiliates’ or sublicensees’ use rights, licenses and privileges granted to Licensee herein, and the Delivery Materials and the exercise of the Platform rights granted to Licensee hereunder do not and will not violate or infringe upon the intellectual property, proprietary or moral rights of any Licensor Intellectual Property in a manner not reasonably contemplated by Licensorperson, but only firm or entity, or otherwise give rise to the extent the third party infringement that is at issue in such Infringement Claim any adverse claim with respect to any common law or Losses would not have occurred other right of any person, firm or have existed but for such non-contemplated use; entity;
(iv) Licensor has obtained and will continue to obtain and maintain throughout the Term all rights, licenses, releases, and clearances with respect to the Delivery Materials required for the exercise of the rights granted to Licensee hereunder, and except as set forth herein, (A) there are not and will not be payments of any kind required to be made by Licensee as a result of any exercise of the rights granted to Licensee herein, and (B) Licensor shall be responsible for all material obligations and has paid or will pay all license fees, guild residuals, laboratory charges, wages, reuse fees, and other payments to any third parties necessary in connection with the Licensed Content or Licensee’s or its Affiliates’ or sublicensees’ use exploitation of any of the Platform or rights granted to Licensee herein, excluding any Licensor Intellectual Property, but only music performance fees for which Licensee is responsible pursuant to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use; Section 8(a)(v) below;
(v) the combination performing rights of all musical compositions contained in the Platform Delivery Materials are (A) controlled by ASCAP, BMI, SESAC or GMR and available for license by Licensee from the publisher(s) controlling such rights, (B) owned by or licensed to Licensor Intellectual Property so no additional licenses or payments are payable with any Licensee or third party software or other intellectual property, in each case, not provided by Licensor, but only respect to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Propertyexploitation hereunder, or (yC) replace or modify in the impacted portions of public domain worldwide; subject to the Platform or Licensor Intellectual Property so that it becomes non- infringing without substantially compromising functionsforegoing, features, or Licensee will be responsible for any music performance of the Platform or the Licensor Intellectual Property. Licensor shall indemnify, save and hold harmless Licensee and their respective representatives, from and against any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not fees arising out of third-party claims)its exploitation of the musical compositions in the Licensed Content hereunder; and
(vi) the Delivery Materials will not (A) contain any cookies or other tracking technologies or otherwise provide for any method of data collection from Licensee, reasonable attorneys’ fees and all amounts paid in investigationthe Service or users thereof, defense or settlement (B) include or introduce into Licensee’s systems any virus, worm, “back door,” “Trojan Horse,” drop dead device, time bomb, spyware, adware or other malicious, harmful, destructive or disruptive code, component or device, including any code, component or device that may cause a security incident or damages to systems, or is capable of facilitating any of the foregoing (herein, “Damages”), incurred in connection with, arising out of, resulting from or incident to (1) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Agreement, (2) any breach of any covenant or agreement made by the Licensor in or pursuant to this Agreement, or (3) operation of the Platformforegoing.
Appears in 1 contract
By Licensor. Licensor shall agrees to defend, indemnify and hold harmless the Licensee and the Representatives its officers, directors, shareholders, employees, affiliates and representatives from, in respect of Licensee from and against any and all Losses asserted againstclaims, incurred, sustained or suffered by Licensee and/or the Representatives of Licensee as a result of, arising out of or relating to a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property of any third party existing as of the License Effective Date (each a “Infringement Claim”’); provided, however that Licensor shall have no obligation to Licensee under this section with respect to any Infringement Claim arising twenty four (24) months after the License Effective Date or to the extent arising from (i) a Licensee Improvement or any modifications to the Platform or any Licensor Intellectual Property made by or on behalf of Licensee or at Licensee’s request; (ii) Licensee’s breach of this Agreement, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such breach; (iii) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property in a manner not reasonably contemplated by Licensor, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use; (v) the combination of the Platform and Licensor Intellectual Property with any Licensee or third party software or other intellectual property, in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Platform or Licensor Intellectual Property so that it becomes non- infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property. Licensor shall indemnify, save and hold harmless Licensee and their respective representatives, from and against any and all costs, losses (including without limitation diminution in value), taxeslosses, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of third-party claims), including reasonable attorneys’ fees and all amounts paid disbursements), judgments, damages, demands, lawsuits or similar actions or proceedings (each, a “Claim”) to the extent arising out of a third-party claim based on (i) the breach or alleged breach of any representation, warranty or covenant of Licensor hereunder or (ii) Licensor’s direct contribution to or participation in investigationthe promotion or advertising of the Covered Products, other than any Claim (including any Claim for product liability) based primarily on a breach of any representation, warranty or covenant of Licensee or relating to any Claim described in Section 11.2 (each, a “Licensee Claim”). Licensee agrees to notify Licensor in writing within a reasonable time after it receives notice of any Licensee Claim and Licensor shall promptly assume Licensee’s defense thereof with counsel acceptable to Licensee in Licensee’s reasonable discretion. At Licensor’s expense, and as Licensor may reasonably request, Licensee shall cooperate in the defense or settlement of any Licensee Claim. Failure by Licensee to strictly fulfill the obligations set forth in the two immediately preceding sentences of this Section 10.1 shall not relieve Licensor of its obligations hereunder except to the foregoing extent (hereinand only to the extent) that Licensor is prejudiced by such failure. Licensee shall have the right to participate in the defense of any Licensee Claim with separate counsel of its choosing and at Licensee’s expense. Licensor shall not settle or compromise any Licensee Claim without receiving Licensee’s prior written consent, “Damages”), incurred which shall not be unreasonably withheld; provided that it shall be deemed reasonable for Licensee to withhold its consent to any settlement or compromise that would impose any financial liability upon Licensee that is not fully discharged by Licensor in connection with, arising out of, resulting from with such settlement or incident to (1) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Agreement, (2) any breach of any covenant or agreement made by the Licensor in or pursuant to this Agreement, or (3) operation of the Platformcompromise.
Appears in 1 contract
By Licensor. Licensor shall ball defend, indemnify and hold harmless the Licensee and the Representatives representatives of Licensee from and against any and _all Losses asserted against, incurred, sustained or suffered by Licensee and/or the Representatives of Licensee as a result of, arising out of or relating to a claim that the Crowdfunding Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates rrusappropnates the Intellectual Property of any third party existing as of the License Effective Date (each a an “Infringement Claim”’); provided, however that Licensor shall have no obligation to Licensee under this section with respect to any Infringement Claim arising twenty four one (24I) months year after the License Effective Date or to the extent arising from (i) a Licensee Improvement or any modifications to the Crowdfunding Platform or any Licensor Intellectual Property made by or on behalf of Licensee or at Licensee’s request; (ii) Licensee’s breach of this Agreement, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such breach; (iii) Licensee’s or its Affiliates’ or sublicensees’ use of the Crowdfunding Platform or any Licensor Intellectual Property in a manner not reasonably contemplated by Licensor, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Crowdfunding Platform or any Licensor Intellectual PropertyProperty Licensee in connection with an Expanded Business, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such useuse in the Expanded Business; (v) the combination of the Crowdfunding Platform and Licensor Intellectual Property with any Licensee or third party software or other intellectual property, in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Crowdfunding Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Crowdfunding Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Crowdfunding Platform or Licensor Intellectual Property so that it becomes non- non-infringing without substantially compromising functions, features, or performance of the Crowdfunding Platform or the Licensor Intellectual Property. Licensor shall indemnify, save and hold harmless Licensee and their respective representatives, from and against any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of third-party claims), reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing (herein, “Damages”), incurred in connection with, arising out of, resulting from or incident to (1) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Agreement, (2) any breach of any covenant or agreement made by the Licensor in or pursuant to this Agreement, or (3) operation of the Platform.
Appears in 1 contract
Sources: Crowdfunding Platform License Agreement (Blue Chip Capital Group Inc.)
By Licensor. Licensor shall indemnify, defend, indemnify and hold harmless the Licensee and the Representatives its Affiliates, and each of Licensee’s and its Affiliates’ respective officers, directors, employees, and agents (each, a “Licensee Indemnified Party”) against all losses, damages, liabilities and costs (including reasonable attorneys’ fees) (“Losses”) resulting from and against any and all Losses asserted againstthird-party claim, incurredsuit, sustained action, or suffered by Licensee and/or the Representatives of Licensee as a result of, other proceeding (“Third-Party Claim”) arising out of Licensor’s breach of any representation, warranty, covenant, or relating to a claim obligation under this Agreement or alleging that the Platform or any Licensor use of the Licensed Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property of any third party existing as party’s (i) U.S. intellectual property rights, or (ii) intellectual property rights in jurisdictions outside of the License Effective Date (each a “Infringement Claim”’); United States if, and only if Licensor has specifically agreed to provide such indemnification in an amendment to this Agreement, provided, however however, that Licensor shall will have no obligation to Licensee under this section with respect to for any Infringement Third-Party Claim arising twenty four (24) months after the License Effective Date or to the extent arising that arises from (i) a Licensee Improvement or any modifications to the Platform or any Licensor Licensed Intellectual Property made by any Licensee Indemnified Party or sublicensee thereof; (ii) specifications provided by or on behalf of any Licensee Indemnified Party or at Licensee’s request; (ii) Licensee’s breach of this Agreement, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such breachsublicensee thereof; (iii) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Licensed Intellectual Property by any Licensee Indemnified Party or sublicensee thereof other than as specified in a manner not reasonably contemplated by Licensor, but only or permitted pursuant to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated usethis Agreement; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform Licensed Intellectual Property by any Licensee Indemnified Party or any Licensor Intellectual Propertysublicensee thereof in combination with other content and marks, but only to the extent the infringement that is at issue in arises out of such Infringement Claim combination, or Losses would not have occurred or have existed but for such use; (v) the combination continued use of the Platform and Licensor Licensed Intellectual Property with by any Licensee Indemnified Party or third party software or other intellectual property, in each case, not provided by Licensor, but only sublicensee thereof following notice from Licensor to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one cease use of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Platform or Licensor Intellectual Property so that it becomes non- infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Licensed Intellectual Property. Licensor shall indemnify, save and hold harmless Licensee and their respective representatives, from and against any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demandsLicensor’s sole liability, and expenses (whether or not arising out Licensee’s sole remedy, for a claim that the Licensed Intellectual Property infringes the intellectual property rights of third-a third party claims), reasonable attorneys’ fees and all amounts paid is the indemnification obligation set forth in investigation, defense or settlement of any of the foregoing (herein, “Damages”), incurred in connection with, arising out of, resulting from or incident to (1) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Agreement, (2) any breach of any covenant or agreement made by the Licensor in or pursuant to this Agreement, or (3) operation of the Platformsection.
Appears in 1 contract
Sources: License Agreement (Healing Co Inc.)
By Licensor. Licensor hereby represents and warrants that:
4.2.1 Licensor is the sole and exclusive owner of the entire right, title, and interest in and to the Licensed Intellectual Property and has the right to grant the licenses granted herein;
4.2.2 except for the license to Licensee, the Licensed Intellectual Property is not subject to any encumbrance, lien, license rights (including any covenant not to sue in respect thereto) or claim of ownership by any Third Party that would interfere with the rights granted under this Agreement;
4.2.3 during the Term, Licensor shall defendnot knowingly and intentionally encumber or diminish the rights granted to Licensee under this Agreement with respect to Licensed Intellectual Property to the extent exclusively licensed to Licensee under this Agreement;
4.2.4 to Licensor’s knowledge, indemnify and hold harmless the Licensee Licensed Patent Rights are being diligently prosecuted in the respective patent offices in the Territory in accordance with applicable law, and the Representatives of Licensee from Licensed Patent Rights have been filed and against any maintained properly and correctly and all Losses asserted againstapplicable fees have been paid on or before the due date for payment prior to the Effective Date of this Agreement;
4.2.5 the conception, incurreddevelopment, sustained or suffered by Licensee and/or and reduction to practice of the Representatives of Licensee as a result of, arising out of or relating to a claim that the Platform or any Licensor Licensed Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property of any third party existing as of the License Effective Date (has not constituted or involved the misappropriation of trade secrets or other rights or property of any Third Party and the Licensed Products and the Licensed Intellectual Property do not infringe, misappropriate or otherwise violate, the intellectual property rights of any Third Party;
4.2.6 each a “Infringement Claim”’); provided, however that Licensor shall have no obligation to Licensee under this section with respect Person who has or has had any rights in or to any Infringement Claim arising twenty four (24) months after Licensed Patent Rights, has assigned and has executed an agreement assigning its entire right, title, and interest in and to such Licensed Patent Rights to Licensor, and Licensor licensed such rights to Licensee, pursuant to this Agreement;
4.2.7 the License Effective Date or to the extent arising from (i) a Licensee Improvement or any modifications to the Platform or any Licensor Licensed Intellectual Property made represents all intellectual property owned or controlled by Licensor and any of its Affiliates that is necessary/useful to exploit the Licensed Products;
4.2.8 the Licensed Intellectual Property is sufficient to enable the manufacture of Licensed Products by or on behalf of Licensee or at Licensee’s request; (ii) Licensee’s breach of this Agreement, but only to and
4.2.9 the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such breach; (iii) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property in a manner not reasonably contemplated by Licensor, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Licensed Intellectual Property, but only as far as Licensor is aware or should be aware, are not presently subject to the extent the any infringement that is at issue in such Infringement Claim or Losses would and have not have occurred or have existed but for such use; (v) the combination of the Platform and Licensor Intellectual Property with been subject to any Licensee or third party software or other intellectual property, in each case, not provided infringement by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Platform or Licensor Intellectual Property so that it becomes non- infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property. Licensor shall indemnify, save and hold harmless Licensee and their respective representatives, from and against any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of third-party claims), reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing (herein, “Damages”), incurred in connection with, arising out of, resulting from or incident to (1) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Agreement, (2) any breach of any covenant or agreement made by the Licensor in or pursuant to this Agreement, or (3) operation of the PlatformThird Party.
Appears in 1 contract
By Licensor. Licensor agrees to indemnify Licensee, its officers, directors, shareholders, employees, agents, attorneys, successors and assigns (the “Licensee Indemnitees”) against any Claim (as defined above) brought or threatened against Licensee by reason of or resulting from the infringement of any United States patent or United States copyright of a third party caused solely by Licensee’s authorized use of the unmodified version of the Licensed Property delivered to Licensee by Licensor. In the event Licensee has any knowledge of any Claim brought or threatened against Licensee for which Licensor has an indemnification obligation hereunder, Licensee shall defendpromptly notify Licensor. Licensor agrees to assume the defense of such Claim with counsel of Licensor’s choice, and indemnify and hold harmless the Licensee and the Representatives of Licensee Indemnitees from and against any and all Losses asserted againstdamages, incurred, sustained or suffered by Licensee and/or the Representatives of Licensee as a result of, arising out of or relating to a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property of any third party existing as of the License Effective Date (each a “Infringement Claim”’); provided, however that Licensor shall have no obligation to Licensee under this section with respect to any Infringement Claim arising twenty four (24) months after the License Effective Date or to the extent arising from (i) a Licensee Improvement or any modifications to the Platform or any Licensor Intellectual Property made by or on behalf of Licensee or at Licensee’s request; (ii) Licensee’s breach of this Agreement, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such breach; (iii) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property in a manner not reasonably contemplated by Licensor, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use; (v) the combination of the Platform and Licensor Intellectual Property with any Licensee or third party software or other intellectual property, in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Platform or Licensor Intellectual Property so that it becomes non- infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property. Licensor shall indemnify, save and hold harmless Licensee and their respective representatives, from and against any and all costs, losses costs (including without limitation diminution in valuereasonable professional and/or attorneys’ fees), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, losses, liabilities, fines, penalties and expenses of any kind or nature whatsoever incurred by Licensee resulting directly or indirectly from any such Claim. Notwithstanding anything to the contrary contained herein, Licensor shall be under no obligation to replace or modify any infringing (whether or not arising out allegedly infringing) Licensed Property. If any Claim is brought or threatened that gives rise to an indemnity obligation by Licensor in accordance with the foregoing, Licensor shall, however, provide to Licensee at no additional charge and with no representations or warranties whatsoever, any modification or “workaround” owned by Licensor that Licensor intends to use for its own purposes to replace any such infringing or allegedly infringing portion of third-party claims)the Licensed Property, reasonable attorneys’ fees if and only if such modification or “workaround” is in the possession of Licensor and can be transferred to Licensee at no cost to Licensor; provided that, except for the indemnity obligation set forth above, nothing contained herein imposes any obligation on Licensor to actually develop, create, commission or deliver any software, modules, modifications, adaptations, or “workarounds” or to undertake any actions whatsoever to actually modify or replace any infringing or allegedly infringing portion of the Licensed Property, either for Licensor’s own account or for the benefit of Licensee. Licensee shall cease any and all amounts paid in investigation, defense or settlement use of any of the foregoing infringing (herein, “Damages”), incurred in connection with, arising out of, resulting from or incident to (1allegedly infringing) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Agreement, (2) any breach of any covenant or agreement made by the Licensor in or pursuant to this Agreement, or (3) operation of the PlatformLicensed Property upon Licensor’s written request.
Appears in 1 contract
Sources: Software License Agreement
By Licensor. The Licensor shall defendhereby represents, indemnify warrants and hold harmless covenants to the Licensee that:
(a) except as may otherwise be expressly notified to the Licensee in writing, the Licensor has and for the duration of this Agreement, will continue to have full right and title to the Patents, the Patent Applications, the Inventions, the Information, the Know-How, the Improvements and the Licensed Technology, except to the extent co-owned with Licensee;
(b) the Licensor has the right to grant the license and sublicense rights under this Agreement to the Licensee and the Representatives Licensee's sublicensees;
(c) the Licensor is entitled to make all patent applications which it has made, and the Licensor has not made knowing use of Licensee from and against any and all Losses asserted against, incurred, sustained intellectual property or suffered by Licensee and/or the Representatives of Licensee as a result of, arising out of or relating to a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property other rights of any third party existing as in the making of the License Effective Date patent applications;
(each a “Infringement Claim”’); providedd) all Patent Applications filed by the Licensor at the date of this Agreement have to the best knowledge of the Licensor been made in the prescribed form and in the prescribed manner;
(e) the Patents, however that the Patent Applications, the Inventions, the Information, the Know-How and the Improvements include or will include all technology owned by or registered in the name of the Licensor shall have no obligation to Licensee under this section with respect to any Infringement Claim arising twenty four (24) months after the License Effective Date or to which the extent arising from (i) a Licensee Improvement Licensor is beneficially entitled on *** Confidential material redacted and separately filed with the Commission. or any modifications relating to the Platform Field and possessed, invented, developed or any Licensor Intellectual Property made acquired by or on behalf for the Licensor;
(f) all Inventions, Information, Know-How and Improvements supplied to the Licensee by the Licensor will be to the best of the knowledge and belief of the Licensor true, accurate, reliable and up-to-date; and
(g) Licensor (a) is the sole owner or exclusive licensee of the Licensed Technology, and except as Licensor has expressly informed Licensee or at Licensee’s request; (ii) Licensee’s breach in writing prior to the date of this Agreement, but only has not granted to any Third Party any license or other interest in the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such breachLicensed Technology; (iiib) Licensee’s or its Affiliates’ or sublicensees’ use is not aware of the Platform or any Licensor Intellectual Property in a manner not reasonably contemplated by LicensorThird Party patent, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use; (v) the combination of the Platform and Licensor Intellectual Property with any Licensee or third party software patent application or other intellectual propertyproperty rights that would be infringed (i) by practicing any process or method or by making, using or selling any composition which is claimed or disclosed in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim Patents or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Propertywhich constitutes Information and Know-How, or (yii) replace by making, using or modify the impacted portions selling Products; and (c) is not aware of any infringement or misappropriation by a Third Party of the Platform or Licensor Intellectual Property so that it becomes non- infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property. Licensor shall indemnify, save and hold harmless Licensee and their respective representatives, from and against any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of third-party claims), reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing (herein, “Damages”), incurred in connection with, arising out of, resulting from or incident to (1) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Agreement, (2) any breach of any covenant or agreement made by the Licensor in or pursuant to this Agreement, or (3) operation of the PlatformLicensed Technology.
Appears in 1 contract
Sources: Licensing Agreement (Deltagen Inc)
By Licensor. (a) Licensor shall defendwarrants that (i) other than the patents listed on Exhibit A, indemnify and hold harmless neither the Licensee and Product as currently proposed to be manufactured by Licensor nor the Representatives of Licensee from and against process for manufacturing the Product starting with fractionated plasma infringe any and all Losses asserted against, incurred, sustained or suffered patent owned by Licensee and/or Licensor in the Representatives of Licensee as a result of, arising out of or relating to a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property of any third party existing as of the License Effective Date (each a “Infringement Claim”’); provided, however that Licensor shall have no obligation to Licensee under this section Territory except for patents with respect to any Infringement Claim arising twenty four the process of manufacturing Feiba (24which is expressly not licensed hereunder) months after and thrombin (which is expressly not licensed hereunder, but is covered in the License Effective Date or to the extent arising from (i) a Licensee Improvement or any modifications to the Platform or any Licensor Intellectual Property made by or on behalf of Licensee or at Licensee’s requestSupply Agreement); (ii) Licensee’s breach it is the owner of this Agreement, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such breachPatent Rights and Technical Information; (iii) Licensee’s or its Affiliates’ or sublicensees’ use of it has the Platform or any Licensor Intellectual Property right to license said Patent Rights and Technical Information in a the Territory in the manner not reasonably contemplated by Licensor, but only to the extent the third party infringement that is at issue set forth in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated usethis Agreement; (iv) Licensee’s it has not received and does not reasonably expect to receive any notice of litigation from any third party that the Product, as currently proposed to be made by Licensor, incorporates know-how or its Affiliates’ trade secrets wrongfully obtained directly or sublicensees’ use of the Platform or any Licensor Intellectual Property, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such useindirectly from said third party; and (v) it has not received any notice from any third party that the combination Patent Rights in the Territory incorporate know-how or trade secrets wrongfully obtained directly or indirectly from said third party.
(b) Licensor warrants that it does not have actual knowledge of any patents of third parties which would be infringed in the Territory by the manufacture, use or sale of the Platform Product, as currently proposed to be made by Licensor.
(c) Licensor warrants that it has not assigned or conveyed any interest in the Patent Rights or Technical Information which is inconsistent with the rights granted hereunder.
(d) Licensor has full legal right, power and authority to execute, deliver and perform its obligations under this Agreement.
(e) The execution, delivery and performance by Licensor Intellectual Property with of this Agreement do not contravene or constitute a default under any Licensee provision of applicable law or third party software any agreement, judgment, injunction, order, decree or other intellectual property, in each case, not provided by instrument binding upon Licensor.
(f) This Agreement constitutes a valid and binding agreement of Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Platform or Licensor Intellectual Property so that it becomes non- infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property. Licensor shall indemnify, save and hold harmless Licensee and their respective representatives, from and enforceable against any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of third-party claims), reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing (herein, “Damages”), incurred in connection with, arising out of, resulting from or incident to (1) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in accordance with its terms except as such enforceability may be (i) limited by bankruptcy, insolvency, reorganization, moratorium or pursuant similar laws of affecting creditors' rights generally and (ii) subject to this Agreement, general principles of equity (2) any breach regardless of any covenant whether such enforceability is considered in a preceding in equity or agreement made by the Licensor in or pursuant to this Agreement, or (3) operation of the Platformat law).
Appears in 1 contract
Sources: License Agreement (Haemacure Corp)
By Licensor. Licensor agrees to indemnify Authorized User, its officers, directors, shareholders, employees, agents, attorneys, successors and assigns (the “Authorized User Indemnitees”) against any Claim (as defined above) brought or threatened against Authorized User by reason of or resulting from the infringement of any United States patent or United States copyright of a third party caused solely by Authorized User’s authorized use of the unmodified version of the Licensed Property delivered to Authorized User by Licensor. In the event Authorized User has any knowledge of any Claim brought or threatened against Authorized User for which Licensor has an indemnification obligation hereunder, Authorized User shall defendpromptly notify Licensor. Licensor agrees to assume the defense of such Claim with counsel of Licensor’s choice, and indemnify and hold harmless the Licensee and the Representatives of Licensee Authorized User Indemnitees from and against any and all Losses asserted againstdamages, incurred, sustained or suffered by Licensee and/or the Representatives of Licensee as a result of, arising out of or relating to a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property of any third party existing as of the License Effective Date (each a “Infringement Claim”’); provided, however that Licensor shall have no obligation to Licensee under this section with respect to any Infringement Claim arising twenty four (24) months after the License Effective Date or to the extent arising from (i) a Licensee Improvement or any modifications to the Platform or any Licensor Intellectual Property made by or on behalf of Licensee or at Licensee’s request; (ii) Licensee’s breach of this Agreement, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such breach; (iii) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property in a manner not reasonably contemplated by Licensor, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use; (v) the combination of the Platform and Licensor Intellectual Property with any Licensee or third party software or other intellectual property, in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Platform or Licensor Intellectual Property so that it becomes non- infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property. Licensor shall indemnify, save and hold harmless Licensee and their respective representatives, from and against any and all costs, losses costs (including without limitation diminution in valuereasonable professional and/or attorneys’ fees), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, losses, liabilities, fines, penalties and expenses of any kind or nature whatsoever incurred by Authorized User resulting directly or indirectly from any such Claim. Notwithstanding anything to the contrary contained herein, Licensor shall be under no obligation to replace or modify any infringing (whether or not arising out allegedly infringing) Licensed Property. If any Claim is brought or threatened that gives rise to an indemnity obligation by Licensor in accordance with the foregoing, Licensor shall, however, provide to Authorized User at no additional charge and with no representations or warranties whatsoever, any modification or “workaround” owned by Licensor that Licensor intends to use for its own purposes to replace any such infringing or allegedly infringing portion of third-party claims)the Licensed Property, reasonable attorneys’ fees if and only if such modification or “workaround” is in the possession of Licensor and can be transferred to Authorized User at no cost to Licensor; provided that, except for the indemnity obligation set forth above, nothing contained herein imposes any obligation on Licensor to actually develop, create, commission or deliver any software, modules, modifications, adaptations, or “workarounds” or to undertake any actions whatsoever to actually modify or replace any infringing or allegedly infringing portion of the Licensed Property, either for Licensor’s own account or for the benefit of Authorized User. Authorized User shall cease any and all amounts paid in investigation, defense or settlement use of any of the foregoing infringing (herein, “Damages”), incurred in connection with, arising out of, resulting from or incident to (1allegedly infringing) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Agreement, (2) any breach of any covenant or agreement made by the Licensor in or pursuant to this Agreement, or (3) operation of the PlatformLicensed Property upon Licensor’s written request.
Appears in 1 contract
Sources: Master Software License Agreement
By Licensor. Licensor shall defend, indemnify and hold harmless the Licensee and the Representatives of Licensee from and will defend or settle any suit or proceeding brought against any and all Losses asserted against, incurred, sustained or suffered Customer by Licensee and/or the Representatives of Licensee as a result of, arising out of or relating to third party based upon a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property Software constitutes an infringement of any existing and valid copyright, trademark or trade secret in the United States of such third party existing as of the License Effective Date (each any such suit or proceeding, a “Infringement Claim”’); provided, however provided that Licensor shall have no obligation to Licensee under this section with respect to any Infringement Claim arising twenty four (24) months after the License Effective Date or to the extent arising from Customer (i) a Licensee Improvement or any modifications to the Platform or any promptly notifies Licensor Intellectual Property made by or on behalf in writing of Licensee or at Licensee’s request; such claim (ii) Licenseepromptly gives Licensor the right to control and direct the investigation, preparation, defense and settlement of such Claim with counsel of Licensor’s breach own choosing (provided that Customer will have the right to reasonably participate, at its own expense, in the defense or settlement of this Agreement, but only to the extent the third party infringement that is at issue in any such Infringement Claim or Losses would not have occurred or have existed but for such breachClaim); and (iii) Licenseegives assistance and full cooperation for the defense of same. Subject to Customer’s compliance with the foregoing requirements, Licensor will pay all damages and costs awarded by a court of competent jurisdiction against Customer in such Claim or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property in amounts payable pursuant to a manner not reasonably contemplated settlement agreed to by Licensor, but only to the extent the third party infringement that is at issue in such Infringement Claim will not be responsible for any cost, expense or Losses would not have occurred compromise incurred or have existed but made by Customer without Licensor’s prior written consent or for such non-contemplated use; (iv) Licensee’s any lost profits or its Affiliates’ other damage or sublicensees’ use of the Platform or loss suffered by Customer. If any Licensor Intellectual Property, but only Technology is in the opinion of Licensor likely to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use; (v) the combination of the Platform and Licensor Intellectual Property with any Licensee or third party software or other intellectual property, in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes does become the subject of any Infringement Claim or injunctiona claim of infringement, Licensor may (may, at its sole option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) Customer the right to continue using the impacted portions Licensor Technology, modify the affected materials to become non-infringing, or replace it with non-infringing Licensor Technology. If Licensor is not reasonably able to so modify or replace the Licensor Technology or otherwise secure for Customer the right to continue using the Licensor Technology, Licensor may terminate this Agreement and, upon return to it of all copies of the Platform Software and Documentation licensed hereunder, refund to Customer to refund the licensing fees paid less the portion of the license fees attributable to the period over which Customer actually used the Software, assuming full amortization of the Software over a period of three years. Notwithstanding the foregoing, the foregoing defense and indemnity obligations will not apply to any Claim based upon or Licensor Intellectual Propertyarising from (w) use of the Software in a manner for which it was not designed, not in accordance with applicable Documentation, or (y) replace or modify the impacted portions in violation of the Platform or Licensor Intellectual Property so that it becomes non- infringing without substantially compromising functions, features, or performance terms and conditions of the Platform or the Licensor Intellectual Property. Licensor shall indemnify, save and hold harmless Licensee and their respective representatives, from and against any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of third-party claims), reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing (herein, “Damages”), incurred in connection with, arising out of, resulting from or incident to (1) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Agreement, (2x) any breach modification of the Software by any covenant party other than Licensor, (y) any use of the Software in combination with hardware or agreement made software not provided or authorized by the Licensor in or pursuant to this AgreementLicensor, or (3z) operation use of the PlatformSoftware, when use of a subsequent software release which Licensor has made commercially available would have avoided such infringement. This Section 8(a) represents the sole and exclusive remedy of Customer and the entire liability and obligation of Licensor with respect to infringement or claims of infringement of any intellectual property right.
Appears in 1 contract
Sources: End User License Agreement
By Licensor. Licensor shall defendhereby represents and warrants to Distributor as follows:
(i) All information provided by Licensor to Distributor to induce Distributor to enter into this Agreement was true and complete in all material respects on and as of the date such information was provided and is true and complete in all material respects on and as of the Effective Date.
(ii) Licensor is a limited liability company duly organized, indemnify validly existing and hold harmless in good standing under the Licensee laws of the state of Georgia. Licensor has the power and the Representatives of Licensee from and against any authority and all Losses asserted againstgovernmental licenses, incurredauthorizations, sustained or suffered by Licensee and/or the Representatives of Licensee consents and approvals to perform its obligations under this Agreement. Licensor is duly qualified as a result offoreign limited liability company and in good standing under the laws of each jurisdiction where its ownership, arising out lease or operation of property or relating the conduct of its business requires such qualification, except to a claim the extent that the Platform failure to be so qualified would not adversely affect Licensor’s ability to carry out its obligations under or consummate the transactions contemplated by this Agreement. [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
(iii) The execution, delivery and performance by Licensor of this Agreement (a) has been duly authorized by all necessary corporate action and (b) does not and will not violate any requirement of applicable law, contravene the terms of its Articles of Organization or Operating Agreement, or conflict with or result in a breach of any contractual obligation to which Licensor is party or any order, injunction, writ or decree of any governmental authority to which Licensor Intellectual Property or its property is subject.
(iv) This Agreement constitutes the legal, valid and binding obligation of Licensor, enforceable against Licensor in accordance with its terms.
(v) Licensor has the right and power to grant to Distributor the rights and licenses granted under Section 2 of this Agreement.
(vi) To the best of Licensor’s actual knowledge as delivered to Licensor by Licensee infringes or misappropriates of the Intellectual Property Effective Date, Distributor’s use of the Marks in connection with the distribution of Products within the United States in accordance with the terms of this Agreement does not infringe upon the intellectual property rights of any third party existing as of the License Effective Date (each a “Infringement Claim”’); provided, however that Licensor shall have no obligation to Licensee under this section with respect to any Infringement Claim arising twenty four (24) months after the License Effective Date or to the extent arising from (i) a Licensee Improvement or any modifications to the Platform or any Licensor Intellectual Property made by or on behalf of Licensee or at Licensee’s request; (ii) Licensee’s breach of this Agreement, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such breach; (iii) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property in a manner not reasonably contemplated by Licensor, but only to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use; (v) the combination of the Platform and Licensor Intellectual Property with any Licensee or third party software or other intellectual property, in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Platform or Licensor Intellectual Property so that it becomes non- infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property. Licensor shall indemnify, save and hold harmless Licensee and their respective representatives, from and against any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of third-party claims), reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing (herein, “Damages”), incurred in connection with, arising out of, resulting from or incident to (1) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Agreement, (2) any breach of any covenant or agreement made by the Licensor in or pursuant to this Agreement, or (3) operation of the Platformparty.
Appears in 1 contract
Sources: License and Distribution Agreement (Superior Uniform Group Inc)
By Licensor. Licensor shall defendrepresents and warrants that:
(a) Licensor has the right, indemnify power and hold harmless authority to grant to Licensee ---------- [ * ] Confidential Treatment Requested the Licensee exclusive licenses and rights to the Licensed Technology in the Territory set forth in this Agreement and to enter into this Agreement and perform Licensor's obligations hereunder;
(b) This Agreement has been duly executed and delivered by Licensor and is a legal, valid and binding obligation enforceable against Licensor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, arrangement, moratorium and other laws relating to or affecting creditors' rights generally and equitable principles;
(c) The execution, delivery and performance of this Agreement, and the Representatives rights and licenses granted hereunder, do not conflict with, violate or breach any agreement to which Licensor is a party, and there are no agreements, assignments or encumbrances in existence inconsistent with the provisions of Licensee from this Agreement. Licensor has not granted and against will not grant any and all Losses asserted against, incurred, sustained license or suffered by Licensee and/or the Representatives of Licensee as a result of, arising out of or relating to a claim that the Platform or other right in any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property of any third party existing as of the License Effective Date (each a “Infringement Claim”’); provided, however Licensed Technology that Licensor shall have no obligation interferes with or conflicts with any of the licenses or rights granted to Licensee under this section with respect Agreement;
(d) The License Agreement dated as of [ * ] between NPC and Meiji relating to any Infringement Claim arising twenty four NPe6 (24the "NPC-Meiji Agreement") months after remains in effect, without breach by either party. This Agreement is not a sublicense of the License NPC-Meiji Agreement. [ * ]. Meiji has granted no sublicense or other rights under the NPC-Meiji Agreement in the Territory;
(e) As of the Effective Date or to the extent arising from (i) a Licensee Improvement or any modifications to the Platform or any Licensor Intellectual Property made by or on behalf of Licensee or at Licensee’s request; (ii) Licensee’s breach of this Agreement, but only Licensor is the sole and exclusive owner of, or controls the sole and exclusive rights to, the Licensed Technology including the Compound (including, without limitation, all versions of the Drug Master File filed by ▇▇▇▇▇);
(f) To the best knowledge of Licensor as of the Effective Date, no third party has any right, title or interest in or to the extent Licensed Technology in the Territory; [ * ].
(g) As of the Effective Date, Licensor has not received any notice from any third party infringement claiming any ownership interest or control in the Licensed Technology, including the Compound;
(h) The Licensed Technology has not knowingly been obtained through any activity, omission or representation that is at issue in such Infringement Claim would limit or Losses would not have occurred destroy the ---------- [ * ] Confidential Treatment Requested validity or have existed but for such breach; (iii) Licensee’s or its Affiliates’ or sublicensees’ use enforceability of the Platform Licensed Technology, and Licensor has, as of the Effective Date, no knowledge or any Licensor Intellectual Property in information that would have a manner not reasonably contemplated by Licensormaterial adverse impact on the validity and/or enforceability of the Licensed Technology;
(i) As of the Effective Date, but only there are no actions pending, or, to the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use best of Licensor's knowledge as of the Platform Effective Date, threatened before any court or any Licensor Intellectual Property, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use; (v) the combination of the Platform and Licensor Intellectual Property with any Licensee or third party software or other intellectual property, in each case, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses tribunal relating to the Infringement Claim: Licensed Technology, and no Licensed Patent has been involved in any reissue, reexamination, interference, opposition or equivalent or similar proceeding or in any litigation, [ * ];
(xj) procure for To the Licensee (at Licensor’s expense) the right to continue using the impacted portions best knowledge of Licensor as of the Platform Effective Date, the issued Licensed Patents are valid and enforceable and are not being infringed by any third party in the Territory or Japan. Licensor Intellectual Propertyhas, or (y) replace or modify the impacted portions as of the Platform Effective Date, no knowledge or Licensor Intellectual Property so information that it becomes non- infringing without substantially compromising functions, features, or performance would materially affect the validity and/or enforceability of the Platform or the Licensed Patents. However, Licensor Intellectual Property. Licensor shall indemnify, save does not represent and hold harmless Licensee and their respective representatives, from and against any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of third-party claims), reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement of warrant that any of the foregoing Licensed Patents is valid and enforceable;
(hereink) As of the Effective Date, “Damages”)Licensor has not received any notice from any third party claiming that the development, incurred in connection withmanufacture, arising out ofuse, resulting from importation, exportation or incident to (1) sale of NPe6 or ME2906 will infringe any breach patent of any representation third party;
(l) No other license for currently existing patents or warranty patent applications of Licensor or Affiliates of Licensor is required to develop, make, have made, use, import, export, offer for sale or sell the Compound in the Territory;
(m) Licensor has not knowingly misstated any material fact with respect to the Compound, including its manufacture, safety and efficacy, or the inaccuracy Licensed Patents or with respect to the information related thereto provided by Licensor to Licensee, nor has Licensor knowingly omitted to state any material fact or provide any material information required to make such information not misleading;
(n) As of the Effective Date, Licensor neither owns nor controls any representation made compound, other than the Compound, for use with PDT, or any intellectual property rights related to any such compound, and is not, as of the Effective Date, developing or negotiating to obtain any such compound or intellectual property rights; and
(o) The execution and delivery by Licensor of this Agreement require no governmental approvals to be obtained on the part of Licensor, or, if required, Licensor in or pursuant to has obtained such approvals. ---------- [ * ] Confidential Treatment Requested
(p) Without limiting Licensor's obligations regarding the Licensed Know-How under Section 2.1, Article 3, Article 4, Section 6.6, Article 7 and Article 15 of this Agreement, (2) any breach of any covenant or agreement made by the Licensor in or pursuant and except for and subject to this AgreementLicensor's representations and warranties set forth above, or (3) operation of the PlatformLICENSOR MAKES NO OTHER WARRANTY WITH RESPECT TO THE ACCURACY, COMPLETENESS, APPLICABILITY, FITNESS OR MERCHANTABILITY OF THE LICENSED KNOW-HOW, INCLUDING THE ENGLISH TRANSLATION THEREOF.
Appears in 1 contract
Sources: License and Supply Agreement (Light Sciences Oncology Inc)
By Licensor. No later than the 16th day of each month, Licensor shall defend, indemnify must prepare and hold harmless the Licensee provide to Distributor a monthly statement of: (i) Licensor’s Revenues derived from sales of Products by Licensor and the Representatives of Licensee from and against [*] to any and all Losses asserted againstKey Customers for the prior month and Licensor’s Revenues derived from Key Customers for the prior month; and (ii) the number of garments, incurredProducts, sustained or suffered by Licensee and Removable Panels sold and/or provided to Key Customers for the Representatives of Licensee as a result of, arising out of or relating to a claim that the Platform or any Licensor Intellectual Property as delivered to Licensor by Licensee infringes or misappropriates the Intellectual Property of any third party existing as prior month. Within 30 days after each anniversary of the License Effective Date (each a “Infringement Claim”’); providedDate, however Licensor must prepare and provide to Distributor an annual report that Licensor shall have no obligation to Licensee under this section with respect to any Infringement Claim arising twenty four (24) months after includes the License Effective Date or to the extent arising from following: (i) a Licensee Improvement or Licensor’s Revenues derived from sales of Products by Licensor, [*] and their respective affiliates to any modifications to and all Key Customers for the Platform or any Licensor Intellectual Property made by or on behalf of Licensee or at Licenseepreceding 12 month reporting period and Licensor’s requestRevenues derived from Key Customers for the preceding 12 month reporting period; (ii) Licensee’s breach the number of this Agreementgarments, but only Products, and Removable Panels sold and/or provided to Key Customers for the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such breachpreceding 12 month reporting period; and (iii) Licenseeany corrections to Revenues from the sale of Products to Key Customers, Revenues derived from Key Customers and/or the number of garments and Removable Panels sold and/or provided to Key Customers previously reported in any monthly report submitted during the preceding 12 month reporting period, whether due to Customer refunds or for any other reason. The annual report shall be certified to be true and correct by Licensor’s or Chief Financial Officer. Distributor agrees that Licensor shall not be deemed to be in breach of its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Property reporting obligations if it is unable to provide a complete report in a timely manner not reasonably contemplated due to a breach by [*] of its reporting obligations to Licensor, but only provided that Licensor uses commercially reasonable efforts to enforce the extent the third party infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such non-contemplated use; (iv) Licensee’s or its Affiliates’ or sublicensees’ use of the Platform or any Licensor Intellectual Propertybreach and provide Distributor with a complete report as soon as reasonably possible. [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such use; (v) the combination of the Platform and Licensor Intellectual Property with any Licensee or third party software or other intellectual propertyMARKED BY BRACKETS, in each caseHAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, not provided by Licensor, but only to the extent the infringement that is at issue in such Infringement Claim or Losses would not have occurred or have existed but for such combination. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its option), do one of the following to mitigate the Losses relating to the Infringement Claim: (x) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Property, or (y) replace or modify the impacted portions of the Platform or Licensor Intellectual Property so that it becomes non- infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property. Licensor shall indemnify, save and hold harmless Licensee and their respective representatives, from and against any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of third-party claims), reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing (herein, “Damages”), incurred in connection with, arising out of, resulting from or incident to (1) any breach of any representation or warranty or the inaccuracy of any representation made by the Licensor in or pursuant to this Agreement, (2) any breach of any covenant or agreement made by the Licensor in or pursuant to this Agreement, or (3) operation of the PlatformAS AMENDED.
Appears in 1 contract
Sources: License and Distribution Agreement (Superior Uniform Group Inc)