Common use of Indemnification by Licensor Clause in Contracts

Indemnification by Licensor. Licensor shall defend, indemnify and hold harmless Mercury Interactive and all applicable Affiliates and Mercury Interactive Alliance Partners, and their officers, directors, employees, End Users, agents, successors and assigns, from and against any and all actual, damages, liabilities, settlements, costs and expenses (including legal expenses and the expenses of other professionals) as incurred, resulting from or arising out of any claim, demand, or cause of action which alleges that the Licensor Software, Documentation, or Licensor QA Tools or any part thereof provided to Mercury Interactive hereunder as licensed or sublicensed hereunder infringes on of any patent or any copyright or misappropriation of any trade secret, or infringes or misappropriates any other Intellectual Property right of a third party (“Claim”). Mercury Interactive or its Affiliate will provide Licensor with prompt written notice of the filed Claim and permit Licensor to control the defense, settlement, adjustment or compromise of such Claim; provided, however, that if the Claim is one of multiple claims in a lawsuit against Mercury Interactive and/or its Affiliates, Mercury Interactive may, at its sole discretion, elect to participate in control the defense, settlement, adjustment or compromise of the Claim against Mercury Interactive, in which event: (a) the parties agrees to cooperate together and provide any assistance as may be reasonably necessary for the defense, settlement, adjustment or compromise of any such Claim, and (b) Licensor shall not be relieved of its indemnification and hold harmless obligations under this Section 12, whereby Licensor remains responsible for its proportionate share of the damages, liabilities, settlements, costs and expenses relating to the Claim and attributable to Licensor. Mercury Interactive may employ counsel at its own expense to assist it with respect to the Claim; provided, however, that if such counsel is necessary because of a conflict of interest of either Licensor or its counsel or because Licensor does not assume control, Licensor will bear the expense of such counsel. Mercury Interactive shall have no authority to settle any Claim on behalf of Licensor.

Indemnification by Licensor. Licensor shall LICENSOR will indemnify, defend, indemnify and hold LICENSEE harmless Mercury Interactive and all applicable Affiliates and Mercury Interactive Alliance Partners, and their officers, directors, employees, End Users, agents, successors and assigns, from and against any and all actual, damageslosses, liabilities, settlementsclaims, causes of action, damages, costs and expenses (including legal expenses reasonable attorneys’ fees and the expenses of other professionalsexpenses) incurred by LICENSEE as incurred, resulting from or arising out a result of any claimclaim by any person, demandfirm or entity that LICENSEE’S use of the Trademarks in accordance with this Agreement infringes upon any rights granted to such person, firm or cause of action which alleges that the Licensor Software, Documentation, or Licensor QA Tools or any part thereof provided to Mercury Interactive hereunder as licensed or sublicensed hereunder infringes on of any patent or any copyright or misappropriation of any trade secretentity by LICENSOR, or infringes or misappropriates upon the rights of any other Intellectual Property person, firm or entity whether or not granted by LICENSOR, and claims of infringement of intellectual property rights, including copyrights, trademarks, trade dress, trade names and/or patent claims. If any action or proceeding is brought or asserted against LICENSEE in respect of which indemnity may be sought from LICENSOR under this paragraph 19(C), LICENSEE will promptly notify LICENSOR (hereof in writing, and LICENSOR will assume and direct the defense thereof and LICENSOR shall have the exclusive right of a third party (“Claim”)to direct the defense thereof through counsel selected and paid for by LICENSOR. Mercury Interactive or its Affiliate will provide Licensor with prompt written notice of the filed Claim and permit Licensor to control the defense, settlement, adjustment or compromise of such Claim; provided, however, that if the Claim is one of multiple claims in a lawsuit against Mercury Interactive and/or its Affiliates, Mercury Interactive mayLICENSEE may thereafter, at its sole discretionown expense, elect to participate be represented by its own counsel in control the defense, settlement, adjustment such action or proceeding. LICENSEE may not settle or compromise of the Claim against Mercury Interactive, in which event: (a) the parties agrees to cooperate together and provide any assistance as may be reasonably necessary for the defense, settlement, adjustment or compromise of any such Claimclaim or action without the prior written approval of LICENSOR. In either case, LICENSOR and (b) Licensor LICENSEE will keep each other fully advised of all developments and shall cooperate fully with each other and in all respects in connection with any such defense. The provisions of this paragraph and LICENSOR’S obligations hereunder will survive any termination or rescission of this Agreement or its expiration, If LICENSOR does not be relieved of its provide the indemnification or defense provided for in this paragraph 19(C), LICENSEE may do so and hold harmless obligations deduct the cost thereof from any Minimum Annual Royalty or other amounts due LICENSOR under this Section 12, whereby Licensor remains responsible for its proportionate share of the damages, liabilities, settlements, costs and expenses relating to the Claim and attributable to Licensor. Mercury Interactive may employ counsel at its own expense to assist it with respect to the Claim; provided, however, that if such counsel is necessary because of a conflict of interest of either Licensor or its counsel or because Licensor does not assume control, Licensor will bear the expense of such counsel. Mercury Interactive shall have no authority to settle any Claim on behalf of LicensorAgreement.

Indemnification by Licensor. Licensor shall defendagrees to indemnify, indemnify and hold harmless Mercury Interactive and all applicable Affiliates defend Licensee and Mercury Interactive Alliance PartnersLicensee Representatives (collectively, the “Licensee Indemnified Parties”) from, against and their officers, directors, employees, End Users, agents, successors and assigns, from and against with respect to any and all actual, damages, liabilities, settlements, costs and expenses (including legal expenses and the expenses of other professionals) as incurred, resulting from or Claim arising out of the breach of any claimrepresentation, demandwarranty or covenant of Licensor under this Agreement, or cause of action which alleges and for any Claims that the Licensor SoftwareRights or Licensee’s use of the Licensor Rights infringe or violate any patents, Documentationcopyrights, trademarks or Licensor QA Tools trade secrets or any part thereof provided to Mercury Interactive hereunder as licensed or sublicensed hereunder infringes on other intellectual property rights of any patent or any copyright or misappropriation of any trade secret, or infringes or misappropriates any other Intellectual Property right of a third party (“Claim”)Person. Mercury Interactive or its Affiliate will provide Licensor with prompt written notice of In the filed Claim and permit Licensor to control the defense, settlement, adjustment or compromise of such Claim; provided, however, that if the Claim is one of multiple claims in a lawsuit against Mercury Interactive and/or its Affiliates, Mercury Interactive may, at its sole discretion, elect to participate in control the defense, settlement, adjustment or compromise of the Claim against Mercury Interactive, in which event: (a) the parties agrees to cooperate together and provide any assistance as may be reasonably necessary for the defense, settlement, adjustment or compromise event of any such Claim, and (b) Licensor shall defend the Licensee Indemnified Party or Parties in question at Licensor’s sole expense by counsel selected by Licensor, subject to reasonable approval by Licensee, which approval is not to be relieved unreasonably withheld or delayed. In addition, Licensee Indemnified Parties shall have the right to hire counsel, at their sole expense, who shall cooperate with Licensor’s counsel in the defense of its indemnification and hold harmless obligations any Claim indemnified under this Section 12, whereby Licensor remains responsible for its proportionate share of the damages, liabilities, settlements, costs and expenses relating to the Claim and attributable to Licensor. Mercury Interactive may employ counsel at its own expense to assist it with respect to the Claim11.2; provided, however, provided that if such counsel is necessary because of Licensee reasonably determines there are Claims or defenses available to Licensee Indemnified Parties which are not otherwise available to Licensor or if a conflict of interest exists between Licensor and Licensee Indemnified Parties, or if Licensor fails to diligently prosecute any such Claim with competent counsel, then Licensee Indemnified Parties shall be entitled to separate representation by counsel of either their choosing, and the cost thereof shall be borne by Licensor. The settlement of any Claim which is the subject of the foregoing indemnification and which involves more than the payment by Licensor or its counsel or because Licensor of monetary damages shall require Licensee’s prior approval; provided that if Licensee does not assume controlapprove any such settlement and, after Licensor’s reasonable diligence in defending such Claim, the amount of the final judgment or award exceeds the amount of the settlement proposed by Licensor will bear the expense and disapproved by Licensee, then Licensee shall be responsible to pay any such excess amount, plus Licensor’s reasonable costs and expenses of such counsel. Mercury Interactive shall have no authority to settle any Claim on behalf of Licensorlitigation (including reasonable attorneys’ fees).

Indemnification by Licensor. Licensor shall defend("Indemnitor") will indemnify, indemnify defend and hold Licensee harmless Mercury Interactive and all applicable Affiliates and Mercury Interactive Alliance Partners, and their officers, directors, employees, End Users, agents, successors and assigns, from and against any and all actualclaims, damageslosses, liabilitiescosts, settlements, costs liabilities and expenses (including legal expenses and the expenses reasonable attorneys' fees), arising as a result of other professionals) as incurred, resulting from or arising out in connection with Licensor's alleged infringement of any claim, demandintellectual property rights arising from Licensor's products, or cause of action which alleges that the Licensor Software, Documentation, or Licensor QA Tools or any part thereof provided to Mercury Interactive hereunder as licensed or sublicensed hereunder infringes on for breach of any patent representations or any copyright or misappropriation of any trade secret, or infringes or misappropriates any other Intellectual Property right of a third party warranties provided: (“Claim”). Mercury Interactive or its Affiliate will provide Licensor with prompt i) Licensee promptly gives written notice of any claim to Licensor; (ii) at Licensor's expense, the filed Claim Licensee provides any assistance that Licensor may reasonably request for the defense of the claim; and permit (iii) Licensor has the right to control the defensedefense or settlement of the claim, settlement, adjustment or compromise of such Claim; provided, provided however, that if the Claim Licensee shall have the right to participate in, but not control, any litigation for which indemnification is one sought with counsel of multiple claims in a lawsuit against Mercury Interactive and/or its Affiliates, Mercury Interactive mayown choosing, at its sole discretionown expense. Additionally, elect to participate in control if an injunction or order issues restricting the defense, settlement, adjustment use or compromise distribution of any of the Claim against Mercury InteractiveLicensor's Products, in which eventor if Licensor determines that Licensor's Products are likely to become the subject of a claim of infringement or violation of a patent, copyright, trade secret or other intellectual or proprietary right of any third party, Licensor shall, at its option and expense: (a) procure the parties agrees right for licensee to cooperate together and provide any assistance as may be reasonably necessary for the defensecontinue using, settlement, adjustment or compromise of any such Claimreproducing, and distributing Licensor's Products pursuant to this agreement; or (b) Licensor shall replace or modify the Licensor's products so that they become noninfringing, provided such modification or replacement does not be relieved of its indemnification and hold harmless obligations under this Section 12, whereby Licensor remains responsible materially alter or affect the specifications for its proportionate share or the use or operation of the damages, liabilities, settlements, costs and expenses relating to the Claim and attributable to Licensor's Products. Mercury Interactive may employ counsel at its own expense to assist it with respect to the Claim; provided, however, that if such counsel is necessary because of a conflict of interest of either Licensor or its counsel or because Licensor does not assume control, Licensor will bear the expense of such counselUNDER NO CIRCUMSTANCE WILL LICENSOR BE LIABLE TO INDEMNIFY LICENSEE UNDER THIS PROVISION FOR ANY AMOUNT GREATER THAN THE FEES PAID UNDER THIS AGREEMENT BY LICENSEE. Mercury Interactive shall have no authority to settle any Claim on behalf of Licensor.'s Initial _______ Licensee's Initial ______ Palmchip/Wintegra Technology License Agreement #201

Indemnification by Licensor. Licensor shall defend, does hereby indemnify and hold harmless Mercury Interactive and all applicable Affiliates and Mercury Interactive Alliance PartnersLicensee, and their officers, directors, employees, End Users, agents, successors and assigns, from and against any and all actual, damages, liabilities, settlementsdamages and expense (including reasonable attorneys' fees, costs and expenses (including legal expenses and the expenses of other professionalsexpenses) as incurred, resulting from which Licensee may incur or arising out be obligated to pay in any action or claim against Licensee for infringement of any claimother person's claimed right to use a trademark in the Territory, demand, but only where such action or cause claim results from Licensee's use of action which alleges that the Trademark in the Territory in accordance with the terms of this Agreement. Licensee shall give Licensor Software, Documentation, or Licensor QA Tools or any part thereof provided to Mercury Interactive hereunder as licensed or sublicensed hereunder infringes on of any patent or any copyright or misappropriation of any trade secret, or infringes or misappropriates any other Intellectual Property right of a third party (“Claim”). Mercury Interactive or its Affiliate will provide Licensor with prompt written notice of any such claim or action and thereupon Licensor shall undertake and conduct the filed Claim and permit Licensor to control the defense, settlement, adjustment or compromise defense of such Claim; providedany suit so brought. It is understood, however, that if there is a dispute between Licensor and Licensee as to whether the Claim suit was brought as a result of Licensee's failure to use the Trademark in accordance with the terms of this Agreement Licensee may be required to conduct such defense unless and until it is one of multiple claims in a lawsuit against Mercury Interactive and/or its Affiliates, Mercury Interactive may, at its sole discretion, elect to participate in control the defense, settlement, adjustment or compromise determined that no such misuse of the Claim against Mercury InteractiveTrademark occurred. In the event appropriate action is not taken by Licensor within thirty (30) days of its receipt of notice from Licensee, Licensee shall have the right to defend such claim or action in which event: (a) the parties agrees to cooperate together and provide any assistance as may be reasonably necessary for the defenseits own name, settlement, adjustment but no settlement or compromise of any such Claimclaim or action may be made without the prior written approval of Licensor. In either case, Licensor and Licensee shall keep each other fully advised of all developments and shall cooperate fully with each other and in all respects in connection with any such defense. Such indemnification shall be deemed to apply solely to the amount of the judgment, if any, against Licensee, and (b) Licensor sums paid by Licensee in connection with its defense, and shall not be relieved of its apply to any consequential damages suffered by Licensee which are not included in the aforementioned judgment. Such indemnification and hold harmless obligations under this Section 12, whereby Licensor remains responsible for its proportionate share of the damages, liabilities, settlements, costs and expenses relating shall not apply to the Claim and attributable to Licensor. Mercury Interactive may employ counsel at its own expense to assist it with respect to the Claim; provided, however, that if such counsel is necessary because of a conflict of interest of either Licensor or its counsel or because Licensor does not assume control, Licensor will bear the expense any damages sustained by Licensee by reason of such counsel. Mercury Interactive shall have no authority to settle any Claim on behalf of Licensorclaimed infringement other than those specified above.

Indemnification by Licensor. Licensor shall defend(i) indemnify, indemnify and hold harmless Mercury Interactive and all applicable Affiliates and Mercury Interactive Alliance Partnersdefend (or at its option settle) any claim or suit against Pumatech, and or their officers, directors, employees, End Users, agents, successors and assignsemployees (the “Indemnified Parties”) arising from or related to any alleged infringement of any Intellectual Property Right by the Programs or use thereof, from and (ii) pay any judgment entered against any Indemnified Party on such claim when due, or any settlement thereof. The following procedures shall apply to any indemnified claim: (a) Licensor shall have sole control of the defense and/or settlement (b) the Indemnified Party must notify Licensor promptly in writing of such claim or suit and give Licensor all actualinformation known to it relating thereto, damagesand (c) the Indemnified Party must reasonably cooperate with Licensor in the settlement and/or defense. The Indemnified Party shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Licensor. If all or any part of the Programs are, liabilitiesor in the opinion of Licensor may become, settlements, costs and expenses (including legal expenses and the expenses of other professionals) as incurred, resulting from or arising out subject of any claimclaim or suit for infringement of any Intellectual Property Right, demandLicensor may, or cause and in the event of action which alleges any adjudication that the Licensor Software, Documentation, or Licensor QA Tools any Program or any part thereof provided to Mercury Interactive hereunder as licensed does infringe or sublicensed hereunder infringes on if the use of any patent a Program or any copyright or misappropriation of any trade secret, or infringes or misappropriates any other Intellectual Property right of a third party (“Claim”). Mercury Interactive or its Affiliate will provide part thereof is enjoined Licensor with prompt written notice of the filed Claim and permit Licensor to control the defense, settlement, adjustment or compromise of such Claim; provided, however, that if the Claim is one of multiple claims in a lawsuit against Mercury Interactive and/or its Affiliates, Mercury Interactive mayshall, at its sole discretionoption and expense, elect to participate in control the defense, settlement, adjustment or compromise do one of the Claim against Mercury Interactive, in which eventfollowing: (1) procure for the Indemnified Parties the right to use and distribute the Program or the affected part thereof; (2) replace the Program or affected part with non-infringing programs; or (3) modify the Program or affected part to make it non-infringing. Licensor will have no obligations under this Section to the extent a claim described therein is based upon (a) the parties agrees to cooperate together and provide any assistance as may be reasonably necessary for the defensecombination, settlementoperation, adjustment or compromise of any such Claim, and (b) Licensor shall not be relieved of its indemnification and hold harmless obligations under this Section 12, whereby Licensor remains responsible for its proportionate share use of the damagesProgram with software that was not provided by Licensor, liabilities, settlements, costs and expenses relating to the Claim and attributable to Licensor. Mercury Interactive may employ counsel at its own expense to assist it with respect to the Claim; provided, however, that if such counsel is necessary because claim would have been avoided in the absence of such combination, operation;(b) the use of a conflict Program in a manner not authorized by this Agreement; or (c) use of interest other than the most recent version of either Licensor or its counsel or because Licensor does not assume control, Licensor will bear the expense Programs if use of a more recent version would avoid such counsel. Mercury Interactive shall have no authority to settle any Claim on behalf of Licensorinfringement.

Indemnification by Licensor. Licensor shall defend, indemnify Licensee and hold Licensee harmless Mercury Interactive from any damages and all applicable Affiliates liabilities (including reasonable attorneys' fees and Mercury Interactive Alliance Partnerscosts), arising from any breach of Licensor's warranties as defined in Licensor's Warranties, above, provided: (a) such claim, if sustained, would prevent Licensee from marketing the Licensed Products or the Property; (b) such claim arises solely out of the Property as disclosed to the Licensee, and their officers, directors, employees, End Users, agents, successors and assigns, from and against any and all actual, damages, liabilities, settlements, costs and expenses (including legal expenses and the expenses of other professionals) as incurred, resulting from or arising not out of any claim, demandchange in the Property made by Licensee or a vendor, or cause by reason of action which alleges that the Licensor Software, Documentation, an off-the-shelf component or Licensor QA Tools or any part thereof provided to Mercury Interactive hereunder as licensed or sublicensed hereunder infringes on by reason of any patent or any copyright or misappropriation of any trade secret, or infringes or misappropriates any other Intellectual Property right of a third party claim for trademark infringement; (“Claim”). Mercury Interactive or its Affiliate will provide c) Licensee gives Licensor with prompt written notice of any such claim; (d) such indemnity shall only be applicable in the filed Claim event of a final decision by a court of competent jurisdiction from which no right to appeal exists; and permit (e) that the maximum amount due from Licensor to control Licensee under this paragraph shall not exceed the defense, settlement, adjustment or compromise amounts due to Licensor under the Payment Section from the date that Licensor notifies Licensee of the existence of such Claim; provided, however, a claim. The maximum amount due from Licensor to Licensee under this paragraph shall not exceed fifty percent (50%) of the Royalty amounts due to Licensor under Sections 11 and 13 above from the date that if Licensor notifies Licensee of the Claim is one existence of multiple claims in such a claim. After the commencement of a lawsuit against Mercury Interactive and/or its AffiliatesLicensee that comes within the scope of this paragraph, Mercury Interactive may, at its sole discretion, elect to participate in control the defense, settlement, adjustment or compromise Licensee may place fifty percent (50%) of the Claim said Royalties thereafter due to Licensor under Sections 11 and 13 above in a separate interest bearing fund hereinafter referred to as the "Legal Fund." Licensee may draw against Mercury Interactive, in which event: (a) such Legal Fund to satisfy all of the parties agrees to cooperate together reasonable expenses of defending the suit and provide any assistance as may be reasonably necessary for the defense, settlement, adjustment or compromise of any such Claimjudgment or settlement made in regard to this suit. In the event the Legal Fund shall be insufficient to pay the then current defense obligations, and (b) Licensor shall not be relieved of its indemnification and hold harmless obligations under this Section 12, whereby Licensor remains responsible for its proportionate share of the damages, liabilities, settlements, costs and expenses relating to the Claim and attributable to Licensor. Mercury Interactive Licensee may employ counsel at its own expense to assist it with respect to the Claim; provided, however, that if such counsel is necessary because of a conflict of interest of either Licensor or its counsel or because Licensor does not assume control, Licensor will bear the expense of such counsel. Mercury Interactive shall have no authority to settle any Claim advance monies on behalf of the Legal Fund and shall be reimbursed as payments are credited to the Legal Fund. Licensor's liability to Licensee shall not extend beyond the loss of its royalty deposit in the Legal Fund. After the suit has been concluded any balance remaining in the Legal Fund shall be paid to Licensor and all future Royalties due to Licensor shall be paid to Licensor as they would otherwise, become due. Licensee shall not permit the time for appeal from an adverse decision on a claim to expire.

Indemnification by Licensor. Licensor shall defendindemnify, indemnify defend and hold harmless Mercury Interactive Seelos and all applicable its Affiliates and Mercury Interactive Alliance Partners, Sublicensees and each of their officers, directorsrespective agents, employees, End Usersofficers and directors (all together, agents, successors and assigns, the “Seelos Indemnitees”) harmless from and against any and all actualactions, judgments, settlements, liabilities, damages, liabilitiespenalties, settlementsfines, losses, costs and expenses (including legal expenses reasonable attorneys’ fees and expenses) to the expenses of other professionals) as incurred, resulting from or extent arising out of any claimand all Claims related to (a) Licensor’s performance of its obligations or exercise (by it or its Affiliates) of its or their rights under this Agreement or the Supply Agreement; (b) Licensor’s breach or violation of any applicable Laws in connection with this Agreement or the Supply Agreement; (c) breach by Licensor of its express representations, demandwarranties or covenants set forth in this Agreement or the Supply Agreement; (d) infringement of a Third Party’s intellectual property rights by Captisol or the Captisol-related Licensor Technology as delivered or made available by or for Licensor; (e) any Study conducted by or for Licensor or its Affiliates or sublicensees; (g) interactions and communications by Licensor, its Affiliates, sublicensees, contractors or cause agents with governmental authorities, physicians or other third parties relating to Licensed Products and/or Captisol; or (h) the negligence or willful misconduct of action which alleges that the Licensor Software, Documentation, or Licensor QA Tools its Affiliates or agents or any part thereof provided to Mercury Interactive hereunder as licensed of their respective officers, directors, managers, employees or sublicensed hereunder infringes on of any patent agents in connection with this Agreement or any copyright or misappropriation of any trade secret, or infringes or misappropriates any other Intellectual Property right of a third party (“Claim”). Mercury Interactive or its Affiliate will provide Licensor with prompt written notice of the filed Claim and permit Licensor to control the defense, settlement, adjustment or compromise of such ClaimSupply Agreement; provided, however, that Licensor’s obligations pursuant to this Section 10.2 shall not apply at all if a Claim clearly arises substantially all from, and otherwise shall not apply to the extent that a Claim is one arises from, a Seelos Indemnitee’s breach of multiple claims in a lawsuit against Mercury Interactive and/or its Affiliatesapplicable law, Mercury Interactive maybreach of this Agreement or the Supply Agreement, at its sole discretion, elect to participate in control negligence or willful misconduct or infringement by the defense, settlement, adjustment combination itself of Captisol with acetaminophen (modified or compromise not) or by the combination itself of Licensor Know-How as delivered by Licensor with Seelos Background Technology or Seelos Foreground Technology or modification of the Claim against Mercury Interactive, in which event: (a) the parties agrees to cooperate together and provide any assistance Licensor Know-How as may be reasonably necessary delivered by Licensor by or for the defense, settlement, adjustment or compromise of any such Claim, and (b) Licensor shall not be relieved of its indemnification and hold harmless obligations under this Section 12, whereby Licensor remains responsible for its proportionate share of the damages, liabilities, settlements, costs and expenses relating to the Claim and attributable to Licensor. Mercury Interactive may employ counsel at its own expense to assist it with respect to the Claim; provided, however, that if such counsel is necessary because of a conflict of interest of either Licensor or its counsel or because Licensor does not assume control, Licensor will bear the expense of such counsel. Mercury Interactive shall have no authority to settle any Claim on behalf of LicensorSeelos.

Indemnification by Licensor. Licensor shall defend, indemnify and hold harmless Mercury Interactive and all applicable Affiliates and Mercury Interactive Alliance PartnersLicensee, and their its officers, directors, employees, End Users, agents, successors employees and assigns, Affiliates from and against any and all actual, damages, liabilities, settlements, costs and expenses (including legal expenses and the expenses of other professionals) as incurred, resulting from or liability arising out of any claimthird party suit, action, legal proceeding, claim or demand, of whatever kind or cause character, including claims of action which alleges trademark or service xxxx infringement or unfair competition, that the Licensor Software, Documentation, or Licensor QA Tools or any part thereof provided to Mercury Interactive hereunder as licensed or sublicensed hereunder infringes on of any patent or any copyright or misappropriation of any trade secret, or infringes or misappropriates any other Intellectual Property right of a third party (“Claim”). Mercury Interactive or its Affiliate will provide Licensor with prompt written notice use by Licensee of the filed Claim Licensed Trademarks, as authorized and permit approved by Licensor pursuant to control this Agreement, violates the defense, settlement, adjustment or compromise rights of such Claim; provided, however, that if the Claim is one of multiple claims in a lawsuit against Mercury Interactive and/or its Affiliates, Mercury Interactive may, at its sole discretion, elect to participate in control the defense, settlement, adjustment or compromise of the Claim against Mercury Interactive, in which event: (a) the parties agrees to cooperate together and provide any assistance as may be reasonably necessary for the defense, settlement, adjustment or compromise of any such Claim, and (b) Licensor shall not be relieved of its indemnification and hold harmless third party. Licensor's obligations under this Section 1211.2 shall apply only to those acts that occur during the period during which royalties are due, whereby and only if: (i) Licensee promptly notifies Licensor remains responsible of any claim giving rise to such liability and fully discloses to Licensor all information relating to such claim; (ii) Licensee provides reasonable cooperation to Licensor in the defense of all such claims, which defense costs and expenses, and to the extent that Licensee incurs any legal expenses that have been approved in writing by Licensor for its proportionate share providing assistance in the defense of any such claims, shall be Licensor's responsibility; (iii) Licensee neither acts nor fails to act in such manner as may jeopardize or compromise such defense or hinder Licensor in providing such defense; and (iv) the claim is by either (a) a third party licensed by Licensor to use the Licensed Trademarks other than under any of the damageslicenses set forth on Schedule 4(l)(i) of the Recapitalization Agreement or Exhibit 2 hereto, liabilities, settlements, costs and expenses relating or (b) any other third party whose rights the Specified Employees had Knowledge of as of the Effective Date. The limitations set forth in Section 12 of this Agreement shall not apply to the Claim and attributable to Licensor. Mercury Interactive may employ counsel at its own expense to assist it with respect to the Claim; provided, however, that if such counsel is necessary because of a conflict of interest of either Licensor or its counsel or because Licensor does not assume control, Licensor will bear the expense of such counsel. Mercury Interactive shall have no authority to settle any Claim on behalf of Licensor.this

Indemnification by Licensor. Licensor represents and warrants that: (i) it is the owner of the Trademarks; (ii) it has all necessary rights to the Images for the purposes set forth in this Agreement; (iii) the Trademarks are valid in the Territory; and (iv) the Trademarks are, to the best of Licensor's knowledge, free from any claim by any third party that would unreasonably interfere with the rights granted to Licensee under this Agreement. Licensor shall defendindemnify, indemnify defend and hold harmless Mercury Interactive Licensee, its subsidiaries and all applicable Affiliates affiliates, their respective shareholders, licensees and Mercury Interactive Alliance Partnersfranchisees and the agents, and their officers, directorsdirectors and employees of each against and from all costs, employeesclaims, End Userssuits, agentslosses, successors damages and assignsexpenses, from and against any and all actualincluding, damages, liabilities, settlements, costs and expenses without limitation reasonable attorneys' fees (including legal expenses and provided prompt notice of each such claim or suit which comes to the expenses attention of other professionalsLicensee is given to Licensor by Licensee) as incurred, resulting from or arising out of any claimor in connection with the authorized use of the Playboy Properties on or in connection with the Products by Licensee in the Territory, demandbut in no event shall such indemnification include incidental or consequential damages, including, but not limited to compensation or cause reimbursement for loss of action which alleges that the Licensor Softwareprospective profits, Documentation, anticipated sales or Licensor QA Tools other losses occasioned by termination of this Agreement or any part thereof provided to Mercury Interactive hereunder as licensed or sublicensed hereunder infringes on of any patent or any copyright or misappropriation of any trade secret, or infringes or misappropriates any other Intellectual Property right of a third party (“Claim”reason(s). Mercury Interactive Licensor shall have the option to settle or its Affiliate will provide Licensor with prompt written notice of to undertake and conduct the filed Claim and permit Licensor to control the defense, settlement, adjustment or compromise of such Claim; provided, however, that if the Claim is one of multiple claims in a lawsuit against Mercury Interactive and/or its Affiliates, Mercury Interactive may, at its sole discretion, elect to participate in control the defense, settlement, adjustment or compromise of the Claim against Mercury Interactive, in which event: (a) the parties agrees to cooperate together and provide any assistance as may be reasonably necessary for the defense, settlement, adjustment or compromise defense of any such Claimclaim or suit. Licensor shall have sole and exclusive control over such defense, and (b) Licensor Licensor's decisions with respect thereto shall not be relieved govern and control. Licensee expressly covenants that no discussions by Licensee whatsoever with claimant or litigant, no compromise or settlement by Licensee of its indemnification any claim or suit and hold harmless obligations under this Section 12, whereby Licensor remains responsible for its proportionate share of the damages, liabilities, settlements, costs and expenses relating to the Claim and attributable to Licensor. Mercury Interactive may employ counsel at its own expense to assist it no negotiations by Licensee with respect to any compromise or settlement shall be had, made or entered into without the Claim; provided, however, that if such counsel is necessary because of a conflict of interest of either Licensor or its counsel or because Licensor does not assume control, Licensor will bear the expense of such counsel. Mercury Interactive shall have no authority to settle any Claim on behalf prior written approval of Licensor.

Indemnification by Licensor. Licensor shall LICENSOR hereby agrees to defend, indemnify indemnify, and hold harmless Mercury Interactive LICENSEE and all applicable Affiliates and Mercury Interactive Alliance Partners, its affiliates and their officersrespective shareholders, members, directors, officers, managers, employees, End Users, agents, successors attorneys and assigns, agents (collectively referred to as “LICENSEE” for purposes of this section) harmless from and against any and all actualclaims, suits, losses, damages, liabilitiesdemands, settlementsinjuries and expenses, costs including without limitation reasonable attorneys’ fees, based on (i) any breach of this Agreement by LICENSOR or any of its servants, agents, contractors or employees, (ii) any negligent acts, whether by omission or commission, that may be committed by LICENSOR or any of its servants, agents, contractors or employees; and expenses (including legal expenses and iii) allegations that the expenses use of other professionals) as incurred, resulting from the LICENSED XXXX by LICENSEE in accordance with this Agreement infringes or arising out otherwise violates the rights of any claim, demand, or cause of action which alleges that the Licensor Software, Documentation, or Licensor QA Tools or any part thereof provided to Mercury Interactive hereunder as licensed or sublicensed hereunder infringes on of any patent or any copyright or misappropriation of any trade secret, or infringes or misappropriates any other Intellectual Property right of a third party (“Claim”). Mercury Interactive or its Affiliate will provide Licensor with prompt written notice of in the filed Claim and permit Licensor to control the defense, settlement, adjustment or compromise of such ClaimTERRITORY; provided, however, that if the Claim is one foregoing indemnity shall not include allegations arising out of multiple LICENSEE’s use of the LICENSED XXXX in any jurisdiction outside of the United States where LICENSOR does not have any registration in force with respect to the LICENSED PRODUCTS, provided that LICENSOR has no actual knowledge of any infringement of any third party rights. LICENSEE shall give LICENSOR prompt written notice of any such claims in a lawsuit against Mercury Interactive and/or its Affiliates, Mercury Interactive mayor suits and LICENSOR shall defend the same, at its sole discretionown expense, elect through counsel of its choice subject to participate in control the defenseLICENSEE’s approval, settlement, adjustment or compromise of the Claim against Mercury Interactive, in which event: (a) the parties agrees to cooperate together and provide any assistance as may be reasonably necessary for the defense, settlement, adjustment or compromise of any such Claim, and (b) Licensor shall not be relieved of its indemnification and hold harmless obligations under this Section 12unreasonably withheld. LICENSEE shall comply with any settlement or court order arising from any such claim or suit, whereby Licensor remains responsible for its proportionate share including any settlement or order that requires a change to LICENSEE’s use of the damages, liabilities, settlements, costs and expenses relating LICENSED XXXX. LICENSEE shall have the right to the Claim and attributable to Licensor. Mercury Interactive may employ retain its own counsel at its own expense to assist it with respect to but shall not have the Claim; provided, however, that if such counsel is necessary because of a conflict of interest of either Licensor or its counsel or because Licensor does not assume control, Licensor will bear the expense of such counsel. Mercury Interactive shall have no authority right to settle any Claim on behalf such action. LICENSOR shall have the right to terminate LICENSEE’s right to use the LICENSED XXXX in any portion of Licensorthe TERRITORY without further liability to LICENSEE if LICENSOR determines, in its sole discretion, that it cannot prevail over any such claim or suit despite exercising commercially reasonable efforts to do so. Notwithstanding the foregoing, in no event will the foregoing indemnification provided by LICENSOR for all claims or suits exceed the amount of the royalties paid by LICENSEE under this Agreement. The indemnity provided for in this Section shall survive the expiration or termination of this Agreement.

Indemnification by Licensor. Licensor shall defend, indemnify and hold harmless Mercury Interactive Licensee and all applicable its Affiliates and Mercury Interactive Alliance Partners, and each of their respective officers, directors, shareholders, employees, End Users, agents, successors and assigns, assigns (“Licensee Indemnitees”) from and against any all Third Party Claims, and all actualassociated Losses, damages, liabilities, settlements, costs and expenses (including legal expenses and to the expenses of other professionals) as incurred, resulting from or extent arising out of any claim, demand, or cause of action which alleges that resulting from: (a) the performance or failure to perform by Licensor Software, Documentation, or Licensor QA Tools (or any part thereof provided to Mercury Interactive hereunder as licensed its Affiliates, subcontractors or sublicensed hereunder infringes on agents) of any patent of its obligations under this Agreement; (b) a material breach by Licensor or any copyright of its Affiliates, subcontractors or misappropriation agents of any trade secretof its representations, warranties, covenants or infringes agreements under this Agreement; or misappropriates (c) violation of Applicable Law by any other Intellectual Property right of a third party (“Claim”). Mercury Interactive or its Affiliate will provide Licensor with prompt written notice of the filed Claim and permit Licensor to control the defense, settlement, adjustment or compromise of such ClaimIndemnitee; provided, however, that if the Claim is one of multiple claims in a lawsuit against Mercury Interactive and/or its Affiliatesall cases referred to in this Section 6.2, Mercury Interactive may, at its sole discretion, elect to participate in control the defense, settlement, adjustment or compromise of the Claim against Mercury Interactive, in which event: (a) the parties agrees to cooperate together and provide any assistance as may be reasonably necessary for the defense, settlement, adjustment or compromise of any such Claim, and (b) Licensor shall not be relieved liable to indemnify any Licensee Indemnitee for any Losses of such Licensee Indemnitee to the extent that such Losses were caused by (i) the gross negligence or willful misconduct or intentional wrongdoing of Licensee or any of its indemnification and hold harmless obligations Affiliates, sublicensees, subcontractors or agents, (ii) any breach by Licensee or any of its Affiliates, sublicensees, subcontractors or agents of Licensee’s representations, warranties, covenants or agreements under this Agreement, or (iii) matters for which Licensee has an obligation to indemnify any Licensor Indemnitee pursuant to Section 12, whereby Licensor remains responsible for its proportionate share of the damages, liabilities, settlements, costs and expenses relating to the Claim and attributable to Licensor. Mercury Interactive may employ counsel at its own expense to assist it 6.1; or (iv) with respect to a claim under Section 8.3 by a Third Party, the Claim; providedAPI. CYNAPSUS THERAPEUTICS INC. Portions herein identified by [**] have been omitted pursuant to a request for confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, however, that if such counsel is necessary because as amended. A complete copy of a conflict of interest of either Licensor or its counsel or because Licensor does not assume control, Licensor will bear this document has been filed separately with the expense of such counsel. Mercury Interactive shall have no authority to settle any Claim on behalf of LicensorSecurities and Exchange Commission.

Indemnification by Licensor. (a) Licensor shall defendagrees to defend the Licensee Indemnitees, at Licensor’s cost and expense, and will indemnify and hold harmless Mercury Interactive and all applicable Affiliates and Mercury Interactive Alliance Partners, and their officers, directors, employees, End Users, agents, successors and assigns, the Licensee Indemnitees from and against any and all actuallosses, costs, damages, liabilitiesfees, settlements, costs and expenses (including legal expenses and the expenses of other professionalscollectively, “Losses”) as incurred, resulting from relating to or in connection with a Third Party claim arising out of (i) any claimactual or alleged death, demandpersonal bodily injury or damage to real or tangible personal property claimed to result, directly or indirectly, from the possession, use or consumption of, or cause treatment with, any Procedure or Product Exploited by or on behalf of action which alleges (A) Licensor, its Affiliates, licensees or Sublicensees and/or (B) Licensee, its Affiliates and/or Sublicensees (except, with respect to Licensee, its Affiliates and/or Sublicensees, to the extent that the Licensor Softwareclaim relates to an Improvement developed by Licensee); (ii) subject to the provisions of Sections 2.2(b) and 8.1(b) hereof, Documentation, any actual or Licensor QA Tools alleged infringement or any part thereof provided to Mercury Interactive hereunder as licensed or sublicensed hereunder infringes on of any patent or any copyright unauthorized use or misappropriation of any trade secret, Patent Right or infringes or misappropriates any other Intellectual Property right Right of a third party Third Party with respect to the activities of (“Claim”). Mercury Interactive or its Affiliate will provide Licensor with prompt written notice of the filed Claim and permit Licensor to control the defenseA) Licensor, settlement, adjustment or compromise of such Claim; provided, however, that if the Claim is one of multiple claims in a lawsuit against Mercury Interactive and/or its Affiliates, Mercury Interactive maylicensees or Sublicensees and/or (B) Licensee, its Affiliates and/or Sublicensees (except, with respect to Licensee, its Affiliates and/or Sublicensees, to the extent that the claim relates to an Improvement developed by Licensee); (iii) any breach by Licensor of its representations, warranties or covenants made under this Agreement; or (iv) any negligent act or omission or willful misconduct of Licensor, its Affiliates, licensees or Sublicensees, or any of their employees, contractors or agents, in performing Licensor’s obligations or exercising Licensor’s rights under this Agreement. In the event of any such claim against any Licensee Indemnitee, Licensee shall promptly notify Licensor in writing of the claim and Licensor shall manage and control, at its sole discretionexpense, elect the defense of the claim and its settlement with counsel reasonably acceptable to participate the Licensee Indemnitee. The failure to timely give a claim notice shall not relieve Licensor of its obligations hereunder, except and only to the extent that such failure shall result in control any material prejudice to Licensor in defense of the defenseclaim. Licensor shall not, settlementwithout the prior written consent of the Licensee Indemnitee, adjustment consent to the entry of any judgment or enter into any settlement or compromise which does not include, as an unconditional term thereof (i.e., there being no requirement that the Licensee Indemnitee pay any amount of money, give any other consideration or agree to any restriction or limitation), the giving by the claimant or plaintiff to the Licensee Indemnitee of a release, in form and substance satisfactory to the Licensee Indemnitee from all liability in respect of the Claim against Mercury Interactiveclaim. The relevant Licensee Indemnitees shall cooperate with Licensor and may, at such Licensee Indemnitees’ option and expense, be represented in which event: (a) the parties agrees to cooperate together and provide any assistance as may be reasonably necessary for the defense, settlement, adjustment or compromise of any such Claim, and (b) action or proceeding. Licensor shall not be relieved of its indemnification and hold harmless obligations under this Section 12, whereby Licensor remains responsible liable for its proportionate share of the damages, liabilities, any settlements, litigation costs and or expenses relating to the Claim and attributable to incurred by any Licensee Indemnitees without Licensor. Mercury Interactive may employ counsel at its own expense to assist it with respect to the Claim; provided, however, that if such counsel is necessary because of a conflict of interest of either Licensor or its counsel or because Licensor does not assume control, Licensor will bear the expense of such counsel. Mercury Interactive shall have no authority to settle any Claim on behalf of Licensor’s written authorization.

Indemnification by Licensor. Licensor shall defend, indemnify indemnify, and hold harmless Mercury Interactive the Licensee and all applicable Affiliates the affiliates and Mercury Interactive Alliance PartnersRepresentatives of Licensee (each, and their officersa “Licensee Indemnified Party” and, directorscollectively, employees, End Users, agents, successors and assigns, the “Licensee Indemnified Parties”) from and against any and all actualLosses asserted against, damages, liabilities, settlements, costs and expenses (including legal expenses and the expenses of other professionals) as incurred, resulting from sustained or suffered by a Licensee Indemnified Party as a result of, arising out of any claim, demandof, or cause of action which alleges relating to, a claim that the Licensor Software, Documentation, or Licensor QA Tools or any part thereof provided to Mercury Interactive hereunder Platform as licensed or sublicensed hereunder infringes on of any patent or any copyright or misappropriation of any trade secret, or and delivered to Licensee by Licensor infringes or misappropriates any other the Intellectual Property right of a third any third-party existing as of the Effective Date (each an “Infringement Claim”). Mercury Interactive or its Affiliate will provide Licensor with prompt written notice of the filed Claim and permit Licensor to control the defense, settlement, adjustment or compromise of such Claim; provided, however, however that if the Licensor shall have no obligation to Licensee under this Agreement with respect to any Infringement Claim is one of multiple claims in a lawsuit against Mercury Interactive and/or its Affiliates, Mercury Interactive may, at its sole discretion, elect to participate in control the defense, settlement, adjustment or compromise of the Claim against Mercury Interactive, in which eventarising: (a) twenty four (24) months after the parties agrees to cooperate together and provide any assistance as may be reasonably necessary for the defense, settlement, adjustment Effective Date; or compromise of any such Claim, and (b) Licensor shall not be relieved to the extent arising from: (i) Any Licensee Improvements or any modifications to the Platform made by, or on behalf of, Licensee or otherwise at Licensee’s request; (ii) Licensee’s breach of this Agreement; (iii) Licensee’s or its indemnification and hold harmless obligations under this Section 12, whereby Licensor remains responsible for its proportionate share Representative or sublicensees’ use of the damagesPlatform or any Licensor Intellectual Property in any manner in violation of this Agreement or associated Documentation; and (iv) the combination of the Platform and Licensor Intellectual Property with any Licensee or third-party software or other Intellectual Property. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, liabilitiesLicensor may (at Licensee’s option), settlements, costs and expenses do one of the following to mitigate the Losses relating to the Claim and attributable Infringement Claim: (1) procure for the Licensee (at Licensor’s expense) the right to Licensor. Mercury Interactive may employ counsel continue using the impacted portions of the Platform or Licensor Intellectual Property; (2) 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; or (3) if Licensor is unable at its own commercially reasonable effort or expense to assist it with respect make such modifications, then Licensee shall be entitled to the Claim; provided, however, that if such counsel is necessary because of a conflict of interest of either terminate this Agreement without further liability to Licensor or its counsel or because Licensor does not assume control, Licensor will bear elect to continue this Agreement and without the expense benefit of indemnification as a result of such counselbreach. Mercury Interactive shall have no authority to settle This Section 14.1 (Indemnification by Licensor) is Licensee’s sole and exclusive remedy for any Claim on behalf claim that the Platform or any Licensor Intellectual Property infringes or misappropriates the Intellectual Property of Licensorany third party.

Indemnification by Licensor. Licensor shall defendshall, indemnify at its option and hold harmless Mercury Interactive and all applicable Affiliates and Mercury Interactive Alliance Partnersexpense, and their officers, directors, employees, End Users, agents, successors and assigns, from and against any and all actual, damages, liabilities, settlements, costs and expenses (including legal expenses and the expenses of other professionals) as incurred, resulting from defend or arising out of settle any claim, demandproceeding, or cause of action which alleges that the Licensor Software, Documentation, or Licensor QA Tools or any part thereof provided to Mercury Interactive hereunder as licensed or sublicensed hereunder infringes on of any patent or any copyright or misappropriation of any trade secret, or infringes or misappropriates any other Intellectual Property right of a third party suit (“Claim”) brought by third parties against Licensee, its successors or assigns (collectively, the “Licensee Indemnitees”). Mercury Interactive or its Affiliate will provide Licensor with prompt written notice , arising from due to any material breach of the filed Claim representations and permit warranties made by the Licensor to control the defense(“Licensee Claim”) or material breach of any material provisions of this Agreement, settlement, adjustment or compromise of such Claim; provided, however, that if the Claim is one of multiple claims in a lawsuit against Mercury Interactive and/or its Affiliates, Mercury Interactive may, at its sole discretion, elect to participate in control the defense, settlement, adjustment or compromise of the Claim against Mercury Interactive, in which event: (a) the parties agrees Licensee has full and complete control over the defense and settlement of the Licensee Claim; (b) the Licensee Indemnitees provide assistance, at Licensor’s expense, in connection with the defense and settlement of the Licensee Claim as Licensor may reasonably request; and (c) the Licensee Indemnitees complies with any settlement or court order made in connection with the Licensee Claim. Licensor will also indemnify each Licensee Indemnitee against and pay (i) all damages, costs, and attorneys’ fees finally awarded against any Licensee Indemnitee in any Licensee Claim; (ii) all reasonable costs (including reasonable attorneys’ fees) reasonably incurred by any Licensee Indemnitee in connection with the defense of such Licensee Claim, including assistance provided to cooperate together Licensor in accordance with this Section 7.2 (other than attorneys’ fees and provide costs incurred without Licensor’s consent after Licensor has accepted defense of such Claim); and, (iii) if any assistance as may Licensee Claim is settled, all amounts to be reasonably necessary for the defense, settlement, adjustment or compromise paid to any third party in settlement of any such Claim, and (b) ; provided that Licensor shall not be relieved settle any claim giving rise to an obligation of its indemnification and hold harmless obligations indemnity under this Section 12, whereby Licensor remains responsible for its proportionate share 7.2 without the consent of the damagesaffected Licensee Indemnitees unless such settlement involves no more than the payment of money by Licensor, liabilitiesbut in no event shall such consent be unreasonably withheld or delayed unless the same would reasonably be expected to have a material adverse effect on Licensee or the nature, settlementsscope or any other aspect of the License or the Patent Rights within the Field of Use, costs and expenses relating to Notwithstanding the Claim and attributable to Licensor. Mercury Interactive may employ counsel at its own expense to assist it with respect to the Claim; provided, however, that if such counsel is necessary because of a conflict of interest of either Licensor or its counsel or because Licensor does not assume controlforegoing, Licensor will bear not be responsible for any Licensee Claim to the expense extent such Licensee Claim is attributable to (1) the breach or failure to be true of such counsel. Mercury Interactive shall have no authority to settle any Licensee representation or warranty contained in this Agreement, or (2) the settlement of a Licensee Claim on behalf by any Licensee Indemnitee without the prior written approval of Licensor, the approval of which will not be unreasonably withheld, or (3) gross negligence or any intentional misconduct on by part of Licensee or Licensee Indemnitees.

Indemnification by Licensor. Licensor shall defend, indemnify indemnify, and hold harmless Mercury Interactive the Licensee and all applicable Affiliates the affiliates and Mercury Interactive Alliance PartnersRepresentatives of Licensee (each, and their officersa “Licensee Indemnified Party” and, directorscollectively, employees, End Users, agents, successors and assigns, the “Licensee Indemnified Parties”) from and against any and all actualLosses asserted against, damages, liabilities, settlements, costs and expenses (including legal expenses and the expenses of other professionals) as incurred, resulting from sustained or suffered by a Licensee Indemnified Party as a result of, arising out of any claim, demandof, or cause of action which alleges relating to, a claim that the Licensor Software, Documentation, or Licensor QA Tools or any part thereof provided to Mercury Interactive hereunder Platform as licensed or sublicensed hereunder infringes on of any patent or any copyright or misappropriation of any trade secret, or and delivered to Licensee by Licensor infringes or misappropriates any other the Intellectual Property right of a third any third-party existing as of the Effective Date (each an “Infringement Claim”). Mercury Interactive or its Affiliate will provide Licensor with prompt written notice of the filed Claim and permit Licensor to control the defense, settlement, adjustment or compromise of such Claim; provided, however, however that if the Licensor shall have no obligation to Licensee under this Agreement with respect to any Infringement Claim is one of multiple claims in a lawsuit against Mercury Interactive and/or its Affiliates, Mercury Interactive may, at its sole discretion, elect to participate in control the defense, settlement, adjustment or compromise of the Claim against Mercury Interactive, in which eventarising: (a) twenty four (24) months after the parties agrees to cooperate together and provide any assistance as may be reasonably necessary for the defense, settlement, adjustment or compromise of any such Claim, and Effective Date; (b) Licensor shall not be relieved to the extent arising from: (i) Any Licensee Improvements or any modifications to the Platform or Escrow Materials made by, or on behalf of, Licensee or otherwise at Licensee’s request; (ii) Licensee’s breach of this Agreement; (iii) Licensee’s or its indemnification and hold harmless obligations under this Section 12, whereby Licensor remains responsible for its proportionate share Representative or sublicensees’ use of the damagesPlatform or any Licensor Intellectual Property in any manner in violation of this Agreement or associated Documentation; and (iv) the combination of the Platform and Licensor Intellectual Property with any Licensee or third-party software or other Intellectual Property; or (c) after the occurrence of a Use Release Event. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, liabilitiesLicensor may (at its sole option), settlements, costs and expenses do one of the following to mitigate the Losses relating to the Claim and attributable Infringement Claim: (1) procure for the Licensee (at Licensor’s expense) the right to Licensor. Mercury Interactive may employ counsel continue using the impacted portions of the Platform or Licensor Intellectual Property; (2) 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; or (3) if Licensor is unable at its own commercially reasonable effort or expense to assist it with respect make such modifications, then Licensor shall be entitled to terminate this Agreement without further liability to Licensee. This Section 14.1 (Indemnification by Licensor) is Licensee’s sole and exclusive remedy for any claim that the Claim; provided, however, that if such counsel is necessary because Platform or any Licensor Intellectual Property infringes or misappropriates the Intellectual Property of a conflict of interest of either any third party and Licensor may not exercise any indemnity or its counsel or because Licensor does not assume control, Licensor will bear similar monetary remedy under the expense of such counsel. Mercury Interactive shall have no authority to settle any Claim on behalf of LicensorPurchase Agreement.

Indemnification by Licensor. Licensor shall defend, indemnify and hold harmless Mercury Interactive to the fullest extent permitted by law the Licensee Indemnified Parties and all applicable Affiliates and Mercury Interactive Alliance Partners, and their officers, directors, employees, End Users, agents, successors and assignseach of them, from and against any and all actuallosses, damagesclaims, liabilities, settlementsdemands, costs actions, proceedings, judgments of any and expenses all types, including, without limitation, reasonable fees of attorneys, accountants and other experts (including legal expenses and the expenses of other professionals) collectively, “Losses”), incurred by Licensee Indemnified Parties insofar as incurred, resulting from or arising they arise out of or are alleged or claimed to arise out of (i) any activities conducted by Licensor in relation with (i) the Licensed Product including development and commercialization activities; (ii) Licensors’ enforcement of Licensed Patent Rights in any action against a third party that is joined by Licensee in compliance with Section 8.2.2; and (ii) any material breach by [*] = 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. Licensor of its obligations under this Agreement, provided, however, that: (a) Licensor shall not be obligated under this Section 12.1.1 to the extent that the Losses resulted from the negligence or willful misconduct of Licensee, Licensee’s Affiliates, Sub-licensees or Contractors; and (b) Licensee shall have the right to participate in the defense of any such claim, demandcomplaint, suit, proceeding or cause of action which alleges that the Licensor Softwarereferred to in this Section 12.1.1 utilizing attorneys of its choice, Documentationat its own expense, or Licensor QA Tools or any part thereof provided to Mercury Interactive hereunder as licensed or sublicensed hereunder infringes on of any patent or any copyright or misappropriation of any trade secret, or infringes or misappropriates any other Intellectual Property right of a third party (“Claim”). Mercury Interactive or its Affiliate will provide Licensor with prompt written notice of the filed Claim and permit Licensor to control the defense, settlement, adjustment or compromise of such Claim; provided, however, that if the Claim is one of multiple claims in a lawsuit against Mercury Interactive and/or its Affiliates, Mercury Interactive may, at its sole discretion, elect Licensor shall have full authority and control to participate in control the defense, settlement, adjustment or compromise of the Claim against Mercury Interactive, in which event: (a) the parties agrees to cooperate together and provide any assistance as may be reasonably necessary for the defense, settlement, adjustment or compromise of handle any such Claimclaim, and (b) Licensor shall not be relieved complaint, suit, proceeding or cause of its action, including any settlement or other disposition thereof, for which Licensee seeks indemnification and hold harmless obligations under this Section 12, whereby Licensor remains responsible for its proportionate share of the damages, liabilities, settlements, costs and expenses relating to the Claim and attributable to Licensor. Mercury Interactive may employ counsel at its own expense to assist it with respect to the Claim; provided, however, that if such counsel is necessary because of a conflict of interest of either Licensor or its counsel or because Licensor does not assume control, Licensor will bear the expense of such counsel. Mercury Interactive shall have no authority to settle any Claim on behalf of Licensor12.1.1.

Indemnification by Licensor. Licensor represents and warrants that: (i) it is the owner of the Trademarks; (ii) it has all necessary rights to the Images for the purposes set forth in this Agreement; (iii) the Trademarks are valid in the Territory; and (iv) the Trademarks are, to the best of Licensor’s knowledge, free from any claim by any third party that would unreasonably interfere with the rights granted to Licensee under this Agreement. Licensor shall defendindemnify, indemnify defend and hold harmless Mercury Interactive Licensee, its subsidiaries and all applicable Affiliates affiliates, their respective shareholders and Mercury Interactive Alliance Partnersthe agents, and their officers, directorsdirectors and employees of each against and from all claims or suits (provided prompt notice of each such claim or suit which comes to the attention of Licensee is given to Licensor by Licensee) arising solely and directly out of the authorized use of the Playboy Properties on or in connection with the Products by Licensee in the Territory, employees, End Users, agents, successors and assigns, from and against any and all actual, but in no event shall such indemnification include incidental or consequential damages, liabilitiesincluding, settlementsbut not limited to compensation or reimbursement for loss of prospective profits, costs and expenses (including legal expenses and the expenses anticipated sales or other losses occasioned by termination of other professionals) as incurred, resulting from or arising out of any claim, demand, or cause of action which alleges that the Licensor Software, Documentation, or Licensor QA Tools this Agreement or any part thereof provided to Mercury Interactive hereunder as licensed or sublicensed hereunder infringes on of any patent or any copyright or misappropriation of any trade secret, or infringes or misappropriates any other Intellectual Property right of a third party (“Claim”reason(s). Mercury Interactive Licensor shall have the option to settle or its Affiliate will provide Licensor with prompt written notice of to undertake and conduct the filed Claim and permit Licensor to control the defense, settlement, adjustment or compromise of such Claim; provided, however, that if the Claim is one of multiple claims in a lawsuit against Mercury Interactive and/or its Affiliates, Mercury Interactive may, at its sole discretion, elect to participate in control the defense, settlement, adjustment or compromise of the Claim against Mercury Interactive, in which event: (a) the parties agrees to cooperate together and provide any assistance as may be reasonably necessary for the defense, settlement, adjustment or compromise defense of any such Claimclaim or suit, but Licensee shall, upon receipt of notice from Licensor and (b) Licensor shall not be relieved of its indemnification and hold harmless obligations under this Section 12, whereby Licensor remains responsible for its proportionate share of the damages, liabilities, settlements, costs and expenses relating to the Claim and attributable pursuant to Licensor’s instructions, handle, undertake and conduct the defense of any such claim or suit at Licensor’s expense. Mercury Interactive may employ If Licensor does not provide such notice to Licensee, Licensee may, through counsel of Licensee’s own choice and at its own expense to assist it expense, participate in any such claim or suit, but in such event Licensor shall have sole and exclusive control over such defense, and Licensor’s decisions with respect thereto shall govern and control. Licensee expressly covenants that no discussions by Licensee whatsoever with claimant or litigant, no compromise or settlement by Licensee of any claim or suit and no negotiations by Licensee with respect to any compromise or settlement shall be had, made or entered into without the Claim; provided, however, that if such counsel is necessary because of a conflict of interest of either Licensor or its counsel or because Licensor does not assume control, Licensor will bear the expense of such counsel. Mercury Interactive shall have no authority to settle any Claim on behalf prior written approval of Licensor.

Indemnification by Licensor. Licensor shall defend, indemnify and hold harmless Mercury Interactive and all applicable Affiliates and Mercury Interactive Alliance PartnersLicensee, its affiliates and their directors, officers, directors, employees, End Users, agents, successors and assigns, from and agents against any and all actualjudgments, damages, liabilities, settlements, costs and expenses or losses of any kind (including legal expenses reasonable attorneys’ and the expenses of other professionalsexperts’ fees) as incurred, resulting from or arising out a result of any claim, demandaction or proceeding that arises out of or relates to a material breach by Licensor of its representations or warranties under this Agreement; provided however, or cause of action which alleges that the (i) Licensee notifies Licensor Software, Documentation, or Licensor QA Tools or any part thereof provided to Mercury Interactive hereunder as licensed or sublicensed hereunder infringes on promptly of any patent such claim, action or any copyright or misappropriation proceeding; (ii) Licensee grants Licensor control of its defense and/or settlement; and (iii) Licensee cooperates with Licensor in the defense thereof. Licensor shall periodically reimburse Licensee for its reasonable expenses incurred under this Subsection 12.2. Licensee shall have the right, at its own expense, to participate in the defense of any trade secretclaim, action or infringes or misappropriates any other Intellectual Property proceeding against which it is indemnified hereunder; provided, however, it shall have no right of a third party (“Claim”). Mercury Interactive or its Affiliate will provide Licensor with prompt written notice of the filed Claim and permit Licensor to control the defense, settlementconsent to judgment, adjustment or compromise agree to settle any such claim, action, or proceeding without the written consent of such Claim; provided, however, that if Licensor without waiving the Claim is one of multiple claims in a lawsuit against Mercury Interactive and/or its Affiliates, Mercury Interactive may, at its sole discretion, elect to participate in control the defense, settlement, adjustment or compromise of the Claim against Mercury Interactiveindemnity hereunder. Licensor, in which event: (a) the parties agrees to cooperate together and provide any assistance as may be reasonably necessary for the defense, settlement, adjustment or compromise defense of any such Claimclaim, and action or proceeding except with the written consent of Licensee, shall not consent to entry of any judgment or enter into any settlement which either (bi) does not include, as an unconditional term, the grant by the claimant to Licensee of a release of all liabilities in respect of such claims or (ii) otherwise adversely affects the rights of Licensee. The foregoing notwithstanding, Licensor shall not be relieved required to indemnify Licensee to the extent any claims, actions or proceedings arise out of or relate to (i) a breach by Licensee of its indemnification and hold harmless obligations under representations or warranties made herein, or (ii) Licensee’s gross negligence or willful misconduct. This provision shall survive the termination or expiration of this Section 12, whereby Licensor remains responsible for its proportionate share of the damages, liabilities, settlements, costs and expenses relating to the Claim and attributable to Licensor. Mercury Interactive may employ counsel at its own expense to assist it with respect to the Claim; provided, however, that if such counsel is necessary because of a conflict of interest of either Licensor or its counsel or because Licensor does not assume control, Licensor will bear the expense of such counsel. Mercury Interactive shall have no authority to settle any Claim on behalf of LicensorAgreement.

Indemnification by Licensor. Licensor shall defend("Indemnitor") will indemnify, indemnify defend and hold Licensee harmless Mercury Interactive and all applicable Affiliates and Mercury Interactive Alliance Partners, and their officers, directors, employees, End Users, agents, successors and assigns, from and against any and all actualclaims, damageslosses, liabilitiescosts, settlements, costs liabilities and expenses (including legal expenses and the expenses reasonable attorneys' fees), arising as a result of other professionals) as incurred, resulting from or arising out in connection with Licensor's alleged infringement of any claim, demandintellectual property rights arising from Licensor's products, or cause of action which alleges that the Licensor Software, Documentation, or Licensor QA Tools or any part thereof provided to Mercury Interactive hereunder as licensed or sublicensed hereunder infringes on for breach of any patent representations or any copyright or misappropriation of any trade secret, or infringes or misappropriates any other Intellectual Property right of a third party warranties provided: (“Claim”). Mercury Interactive or its Affiliate will provide Licensor with prompt i) Licensee promptly gives written notice of any claim to Licensor; (ii) at Licensor's expense, the filed Claim Licensee provides any assistance that Licensor may reasonably request for the defense of the claim; and permit (iii) Licensor has the right to control the defensedefense or settlement of the claim, settlement, adjustment or compromise of such Claim; provided, provided however, that if the Claim Licensee shall have the right to participate in, but not control, any litigation for which indemnification is one sought with counsel of multiple claims in a lawsuit against Mercury Interactive and/or its Affiliates, Mercury Interactive mayown choosing, at its sole discretionown expense. Additionally, elect to participate in control if an injunction or order issues restricting the defense, settlement, adjustment use or compromise distribution of any of the Claim against Mercury InteractiveLicensor's Products, in which eventor if Licensor determines that Licensor's Products are likely to become the subject of a claim of infringement or violation of a patent, copyright, trade secret or other intellectual or proprietary right of any third party, Licensor shall, at its option and expense: (a) procure the parties agrees right for licensee to cooperate together and provide any assistance as may be reasonably necessary for the defensecontinue using, settlement, adjustment or compromise of any such Claimreproducing, and distributing Licensor's Products pursuant to this agreement; or (b) Licensor shall replace or modify the Licensor's products so that they become noninfringing, provided such modification or replacement does not be relieved of its indemnification and hold harmless obligations under this Section 12, whereby Licensor remains responsible materially alter or affect the specifications for its proportionate share or the use or operation of the damages, liabilities, settlements, costs and expenses relating to the Claim and attributable to Licensor's Products. Mercury Interactive may employ counsel at its own expense to assist it with respect to the Claim; provided, however, that if such counsel is necessary because of a conflict of interest of either Licensor or its counsel or because Licensor does not assume control, Licensor will bear the expense of such counselUNDER NO CIRCUMSTANCE WILL LICENSOR BE LIABLE TO INDEMNIFY LICENSEE UNDER THIS PROVISION FOR ANY AMOUNT GREATER THAN THE FEES PAID UNDER THIS AGREEMENT BY LICENSEE. Mercury Interactive shall have no authority to settle any Claim on behalf of Licensor.'s Initial _______ Licensee's Initial ______ Palmchip/Wintegra Technology License Agreement