Common use of Counterfeiting Clause in Contracts

Counterfeiting. PROSIM hereby agrees to warranty the CLIENT, for the duration of their contractual relationship, against any action or claim brought by a third party against the CLIENT on the grounds that the SOFTWARE infringes pre-existing intellectual property rights in France. In this context, and within the limit of liability referred to in article 12 below, PROSIM will cover any damages or compensation which the CLIENT has been sentenced to pay to a third party, pursuant to an enforceable and final court decision, on the ground of infringement attributable to the use of the SOFTWARE under the conditions set out in these T&Cs. In the case of such a claim or action, PROSIM may at its sole discretion and at its expense: - change all or part of the SOFTWARE to allow its use; - obtain a right of use from a third party. If none of the presented solutions is technically or financially reasonable, PROSIM may at its sole discretion terminate the right to use the SOFTWARE and refund to the CLIENT the fees paid for the licenses to use the SOFTWARE. This warranty is subject to the following specific conditions: - the CLIENT must have complied with all the provisions laid down in these T&Cs and all of the terms of use provided in the DOCUMENTATION; - the CLIENT must have notified to PROSIM any claim, action for infringement or declaration preceding this action, by letter with acknowledgement of receipt sent to PROSIM within fifteen (15) days of receipt; - the CLIENT must loyally collaborate with PROSIM to assist PROSIM in its defense, particularly by providing any elements and information available to it to carry out such defense; - PROSIM will have the responsibility and control of the proceedings and, accordingly, PROSIM will control the amount of attorney's fees and other costs associated with the proceedings; - the CLIENT hereby agrees that PROSIM may negotiate the possibility for the CLIENT to continue to use the SOFTWARE or the contested part of the SOFTWARE or proceed with its modification or replacement by a non-infringing item presenting at least equivalent features and operating mode. PROSIM grants no warranty whatsoever if the SOFTWARE used by the CLIENT is not the latest version of the Software or in case of infringement attributable to the combination of the SOFTWARE with third party software.

Counterfeiting. FIVES PROSIM hereby agrees to warranty the CLIENT, for the duration of their contractual relationship, against any action or claim brought by a third party against the CLIENT on the grounds that the SOFTWARE infringes pre-existing intellectual property rights in France. In this context, and within the limit of liability referred to in article 12 below, FIVES PROSIM will cover any damages or compensation which the CLIENT has been sentenced to pay to a third party, pursuant to an enforceable and final court decision, on the ground of infringement attributable to the use of the SOFTWARE under the conditions set out in these T&Cs. In the case of such a claim or action, FIVES PROSIM may at its sole discretion and at its expense: - change all or part of the SOFTWARE to allow its use; - obtain a right of use from a third party. If none of the presented solutions is technically or financially reasonable, FIVES PROSIM may at its sole discretion terminate the right to use the SOFTWARE and refund to the CLIENT the fees paid for the licenses to use the SOFTWARE. This warranty is subject to the following specific conditions: - the CLIENT must have complied with all the provisions laid down in these T&Cs and all of the terms of use provided in the DOCUMENTATION; - the CLIENT must have notified to FIVES PROSIM any claim, action for infringement or declaration preceding this action, by letter with acknowledgement of receipt sent to FIVES PROSIM within fifteen (15) days of receipt; - the CLIENT must loyally collaborate with FIVES PROSIM to assist FIVES PROSIM in its defense, particularly by providing any elements and information available to it to carry out such defense; - FIVES PROSIM will have the responsibility and control of the proceedings and, accordingly, FIVES PROSIM will control the amount of attorney's fees and other costs associated with the proceedings; - the CLIENT hereby agrees that FIVES PROSIM may negotiate the possibility for the CLIENT to continue to use the SOFTWARE or the contested part of the SOFTWARE or proceed with its modification or replacement by a non-infringing item presenting at least equivalent features and operating mode. FIVES PROSIM grants no warranty whatsoever if the SOFTWARE used by the CLIENT is not the latest version of the Software or in case of infringement attributable to the combination of the SOFTWARE with third party software.