Common use of Liability for Infringement Clause in Contracts

Liability for Infringement. SELLER shall defend CUSTOMER against any suit, claim, proceeding or threatened suit brought against CUSTOMER alleging that the licensing to, or use by CUSTOMER of, any Software or Product furnished hereunder infringes any patent ("INFRINGEMENT CLAIM"). SELLER shall pay all litigation costs, reasonable attorneys' fees, settlement payments and damages awarded or resulting from any such suit, claim, or proceeding provided, that, CUSTOMER (i) notifies SELLER in writing within a reasonable time of its actual knowledge of any such claim, suit, or proceeding; (ii) gives SELLER the right to control or direct the investigation, preparation, defense and settlement of any claim, suit or proceeding related thereto; and (iii) gives SELLER reasonable assistance and cooperation for the defense or settlement thereof. SELLER shall not be liable for, and CUSTOMER shall defend, indemnify and hold SELLER harmless in respect of, any suit, claim, proceeding or threatened suit and all litigation costs, reasonable attorneys' fees, settlement payments and damages awarded or resulting from any claim, suit or proceeding based on (i) CUSTOMER's willful, knowing, or deliberate infringement of a patent, copyright, trade secret, trademark or other proprietary right; (ii) any Software, Product or portion thereof (a) not supplied by SELLER to CUSTOMER or directed by SELLER that CUSTOMER purchase, (b) designed in accordance with CUSTOMER's specifications, or to the extent the infringement results from compliance with such specifications, (c) modified by CUSTOMER, to the extent the infringement results from such modification, (d) combined with other products, processes or materials not supplied, specified or distributed by SELLER, to the extent the infringement results from such combination, (e) where CUSTOMER continues allegedly infringing activity after being notified thereof and after being provided with a non-infringing modification or workaround that would have avoided the alleged infringement, or (f) where CUSTOMER's use of the Software or Product is incident to an infringement not resulting primarily from such Software or Product or is intentionally outside the scope of the license granted in Section 3.1. Neither Party may enter into any settlement or other agreement without prior written consent of the other Party under which such other Party would be obligated to make any payment or incur any liability. If any Software

Liability for Infringement. SELLER Imatest shall defend CUSTOMER against any suit, claim, suit or proceeding or threatened suit brought against CUSTOMER alleging Buyer to the extent that the licensing to, it is based on a claim that any Products manufactured by Imatest or use by CUSTOMER of, any Software purchased by Buyer infringes in construction or Product furnished hereunder infringes design of a United States patent or intellectual property rights of any patent person or entity ("INFRINGEMENT CLAIM"“Infringing Materials”). SELLER , and shall pay indemnify Buyer against all litigation costs, reasonable attorneys' feesdamages, and expenses finally awarded against Buyer and payment of any settlement payments and damages awarded or resulting from any such suit, claim, or proceeding provided, that, CUSTOMER (i) amount provided that Buyer notifies SELLER Imatest promptly in writing within a reasonable time of its actual knowledge of any such claim and gives Imatest full and complete authority, information and assistance for the defense of such claim and provided further that Imatest shall have sole control of the defense and of the negotiations for settlement, if any, of such claim, suit. If the Infringing Materials are or in Imatest’s judgment may become the subject of any claim of intellectual property infringement, or proceeding; if a court determines the Infringing Material infringes any intellectual property right then Imatest may, at its sole option and expense, (iia) gives SELLER procure for Buyer the right to control continue using such Infringing Materials, (b) replace such Infringing Materials with a suitable non-infringing item, (c) suitably modify such Infringing Materials, or direct (d) refund the investigationpurchase price of such Infringing Materials, preparationless depreciation at twenty percent (20%) per year, defense and settlement of any claim, suit or proceeding related thereto; and (iii) gives SELLER reasonable assistance and cooperation for the defense or settlement thereofupon its return to Imatest. SELLER Imatest shall not be liable forfor any cost or expense incurred without Imatest’s written authorization, and CUSTOMER nor shall defend, indemnify and hold SELLER harmless in respect of, Imatest be liable for any suit, claim, proceeding or threatened suit and all litigation costs, reasonable attorneys' fees, settlement payments and damages awarded or resulting from any claim, suit or proceeding based on (i) CUSTOMER's willful, knowing, or deliberate infringement of a patent, copyright, trade secret, trademark or other proprietary right; (ii) any Software, Product or portion thereof (a) lost profits related to such Infringing Materials. Imatest shall not supplied by SELLER to CUSTOMER or directed by SELLER that CUSTOMER purchase, (b) designed in accordance with CUSTOMER's specifications, or to the extent the infringement results from compliance with such specifications, (c) modified by CUSTOMER, to the extent the infringement results from such modification, (d) combined with other products, processes or materials not supplied, specified or distributed by SELLER, to the extent the infringement results from such combination, (e) where CUSTOMER continues allegedly infringing activity after being notified thereof and after being provided with a non-infringing modification or workaround that would have avoided the alleged infringement, or (f) where CUSTOMER's use of the Software or Product is incident to an infringement not resulting primarily from such Software or Product or is intentionally outside the scope of the license granted in Section 3.1. Neither Party may enter into any settlement or other agreement without prior written consent of the other Party under which such other Party would be obligated to make any payment defend or incur any liabilitybe liable for costs and damages if the infringement arises out of compliance with Buyer’s specification or from a combination with or an addition to products not manufactured or developed by Imatest or a modification of the Products or Software after delivery or the use of Products or Software beyond that established by Imatest or approved in writing by Imatest. If any SoftwareTHE FOREGOING STATES THE ENTIRE LIABILITY OF IMATEST, AND THE EXCLUSIVE REMEDY OF BUYER, WITH RESPECT TO ANY ALLEGED PATENT INFRINGEMENT BY THE PRODUCTS OR SOFTWARE.