Common use of PROPRIETARY RIGHTS INDEMNIFICATION Clause in Contracts

PROPRIETARY RIGHTS INDEMNIFICATION. NetIQ hereby represents and warrants ---------------------------------- that the Products and the sale and use of the Products do not infringe upon any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any third party, and that there are no suits or proceedings, pending or threatened alleging any such infringement that have not been disclosed to Tech Data. Regarding any suits or proceedings which have been disclosed to Tech Data, then NetIQ will either (a) not supply Tech Data with any of the Products which are the subject of a disclosed suit or proceeding, or (b) if NetIQ supplies Tech Data with said Products, then NetIQ will be liable to Tech Data for those items in Section 6.5 below in addition to its indemnification obligations stated herein. NetIQ shall indemnify and hold Tech Data, Tech Data's parent, affiliates and subsidiaries and their respective, officers, directors, employees and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs and expenses, which they or any of them incur or become obligated to pay resulting from or arising out of any breach or claimed breach of the foregoing warranty. Tech Data shall inform NetIQ of any such suit or proceeding filed against Tech Data and shall have the right, but not the obligation, to participate in the defense of any such suit or proceeding at Tech Data's expense. NetIQ shall, at its option and expense, either (i) procure for Tech Data, its Customers and End Users the right to continue to use the Product as set forth in this Agreement, or (ii) replace, to the extent Products are available, or modify the Product to make its use non-infringing while being capable of performing the same function without degradation of performance. If neither of the foregoing alternatives (i) or (ii) is reasonably available, NetIQ shall accept a return of the Products from Tech Data, at NetIQ's sole cost and expense, and shall refund to Tech Data the full amount of the price paid by Tech Data for said returned Products, less any price protection credits, but not including any early payment or prepayment discounts. NetIQ shall have no liability under this Section 6.2 for any infringement based on the use of any Product, if the Product is used in a manner or with equipment for which it was not reasonably intended. NetIQ's obligations under this Section 6.2 shall survive termination or expiration of this Agreement.

PROPRIETARY RIGHTS INDEMNIFICATION. NetIQ hereby (a) Xxxxxxx.xxx represents and warrants ---------------------------------- that it is the sole owner of the Software, or has procured the Software under valid licenses from the owners thereof, and Xxxxxxx.xxx further represents and warrants that it has full power and authority to grant the rights herein granted without the consent of any other person. Xxxxxxx.xxx shall defend and indemnify and hold GE harmless against any amounts awarded in a settlement or final court decision arising from any claim, suit, or other proceeding brought against GE based on an allegation that the Products and Software or any elements thereof, or the sale and use of the Products do not infringe upon any Software furnished by Xxxxxxx.xxx pursuant to this Agreement constitutes a violation or infringement of any worldwide copyright, patenttrade secret, trademark, trade secret or other proprietary information right, or intellectual property right U.S. patent provided that Xxxxxxx.xxx is notified promptly in writing of any third partysuch allegation, suit, or proceeding and given full, complete, and that there are no exclusive authority, and complete information and assistance (at Xxxxxxx.xxx's expense) for the defense of same. Xxxxxxx.xxx shall pay without limitation all damages and costs incurred by GE with respect to such suits or proceedings, pending but Xxxxxxx.xxx shall not be responsible for any compromise made by GE or threatened alleging any its agents without Xxxxxxx.xxx's consent. If such infringement that have not been disclosed Software is held by a court of competent jurisdiction to Tech Data. Regarding any suits or proceedings which have been disclosed to Tech Dataconstitute infringement, then NetIQ will either (a) not supply Tech Data with any of the Products which are the subject of a disclosed suit or proceedingand its use is enjoined, or (b) if NetIQ supplies Tech Data with said Products, then NetIQ will be liable to Tech Data for those items in Section 6.5 below in addition to its indemnification obligations stated herein. NetIQ shall indemnify and hold Tech Data, Tech Data's parent, affiliates and subsidiaries and their respective, officers, directors, employees and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs and expenses, which they or any of them incur or become obligated to pay resulting from or arising out of any breach or claimed breach of the foregoing warranty. Tech Data shall inform NetIQ of any such suit or proceeding filed against Tech Data and shall have the right, but not the obligation, to participate in the defense of any such suit or proceeding at Tech Data's expense. NetIQ Xxxxxxx.xxx shall, at its option and expenseown expense without limitation, either (i) promptly procure for Tech Data, its Customers and End Users the right to continue to for continued use of such Software by GE, or, if the Product as set forth in this Agreement, or (ii) replace, to the extent Products are available, performance thereof will not thereby be materially adversely affected promptly replace or modify the Product to make its use such product(s) so that it becomes non-infringing while being capable of performing the same function without degradation of performanceinfringing. If neither of the foregoing alternatives (i) or (ii) actions specified for Xxxxxxx.xxx in the preceding sentence is reasonably availablecommercially feasible, NetIQ then as a last resort, Xxxxxxx.xxx shall accept a return of the Products from Tech Data, at NetIQ's sole cost such Software and expense, and shall refund to Tech Data the full amount of the price GE all fees paid by Tech Data GE for said returned Products, less any price protection credits, but not including any early payment or prepayment discounts. NetIQ shall have no liability under this Section 6.2 for any infringement based such Software if such return of Software occurs within the five (5) year period beginning on the use Effective Date, plus any unused maintenance fees paid for the Software and any costs incurred by GE in the removal of such Software and installation of alternative products. After such five (5) year period beginning with the sixth (6th) year, GE shall be entitled to a pro-rata refund based upon a five (5) year depreciation schedule. During the pendency of any Productclaim against GE with respect to Xxxxxxx.xxx's ownership or authority, if the Product is used in a manner or with equipment for which it was not reasonably intended. NetIQ's obligations under this Section 6.2 shall survive termination or expiration GE may withhold payment of this Agreementany sum otherwise required to be paid hereunder.

PROPRIETARY RIGHTS INDEMNIFICATION. NetIQ hereby represents and warrants ---------------------------------- Brightware will defend at its expense any action brought against Licensee which is based on a claim that a Product, as used within the Products and the sale and use scope of the Products do not infringe upon any copyrightlicense granted hereunder, infringes a United States patent, trademark, copyright or trade secret of a third party, and will pay (i) any settlement agreed to by Brightware, or other proprietary (ii) the costs and damages finally awarded to such third party; provided, however, that in either case that Licensee notifies Brightware promptly in writing of the claim, and allows Brightware to fully control the defense and settlement of such claim. If any Product becomes, or intellectual property right in Brightware's opinion is likely to become, the subject of a claim of infringement of any United States patent, copyright or trade secret owned by any third party, and that there are no suits or proceedings, pending or threatened alleging any such infringement that have not been disclosed to Tech Data. Regarding any suits or proceedings which have been disclosed to Tech Data, then NetIQ will either (a) not supply Tech Data with any of the Products which are the subject of a disclosed suit or proceeding, or (b) if NetIQ supplies Tech Data with said Products, then NetIQ will be liable to Tech Data for those items in Section 6.5 below in addition to its indemnification obligations stated herein. NetIQ shall indemnify and hold Tech Data, Tech Data's parent, affiliates and subsidiaries and their respective, officers, directors, employees and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs and expenses, which they or any of them incur or become obligated to pay resulting from or arising out of any breach or claimed breach of the foregoing warranty. Tech Data shall inform NetIQ of any such suit or proceeding filed against Tech Data and shall have the right, but not the obligation, to participate in the defense of any such suit or proceeding at Tech Data's expense. NetIQ shallBrightware may, at its option and expenseelection, either either: (i) procure for Tech Data, its Customers and End Users the Licensee the right to continue to use using the Product as set forth in this Agreement, or Product; (ii) replace, to the extent Products are available, replace or modify the Product to make its use it non-infringing while being capable of performing infringing; or (iii) terminate the same function without degradation of performanceProduct License for the Product. If neither Upon termination of the foregoing alternatives (i) or (ii) is reasonably availableProduct License in accordance with Section 6, NetIQ Licensee shall accept a immediately return to Brightware all copies and all versions of the Products from Tech DataProduct and all related documentation, at NetIQ's sole cost and expense, in accordance with the obligations set forth in Section 6(b) of this Agreement and shall provide to Brightware the certificate required under Section 6(b). Brightware shall thereafter refund to Tech Data Licensee all license fees paid by Licensee for the full terminated Product License, less an amount equal to one sixtieth (1/60th) of such license fees for each month or any portion thereof which has elapsed since the commencement of the price paid by Tech Data for said returned Products, less any price protection credits, but not including any early payment or prepayment discountsapplicable Product License. NetIQ Brightware shall have no liability under this Section 6.2 for any claim of infringement by a Product based on the upon Licensee's: (i) use of any Product, if version of the Product is used in other than the latest unmodified release; (ii) use or combination of the Product with non-Brightware programs or data if such infringement would not have occurred without such use or combination; or (iii) use of the Product after receiving notice that the Product infringes a manner patent, copyright or trade secret of a third party. This Section 3 states the entire liability of Brightware and the sole and exclusive remedies of Licensee with equipment for which it was not reasonably intended. NetIQrespect to any Product's obligations under this Section 6.2 shall survive termination infringement of any patent, copyright or expiration trade secret of this Agreement.any

PROPRIETARY RIGHTS INDEMNIFICATION. NetIQ hereby Supplier represents and warrants ---------------------------------- that (i) at the Products and the sale and use time of the Products do not infringe upon any copyrightdelivery to EDS, patent, trademark, trade secret or other proprietary or intellectual property right of any third party, and that there are no suits or proceedings, pending or threatened alleging any such infringement that have not been disclosed to Tech Data. Regarding any suits or proceedings which have been disclosed to Tech Data, then NetIQ will either (a) not supply Tech Data with any of the Products which are Product provided under this Agreement is the subject of a disclosed suit or proceedingany litigation ("Litigation"), or and (bii) if NetIQ supplies Tech Data with said ProductsSupplier has all right, then NetIQ will be liable title, ownership interest, and/or marketing rights necessary to Tech Data for those items in Section 6.5 below in addition provide the Products to its indemnification obligations stated hereinEDS. NetIQ Supplier shall indemnify and hold Tech Data, Tech Data's parent, affiliates EDS and subsidiaries Product end users and their respectiverespective successors, officers, directors, employees employees, and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs costs, and expensesexpenses (including legal fees) (collectively, which they or any of them incur or become obligated to pay the "Actions") resulting from or arising out of any breach a claim that the Products infringe upon any copyright, patent, trade secret or claimed breach other proprietary or intellectual property right of the any third party and Supplier shall defend and settle, at its expense, all suits or proceedings arising therefrom. The foregoing warranty. Tech Data indemnification shall only be provided if EDS shall promptly inform NetIQ Supplier of any such suit or proceeding filed against Tech Data and EDS, (iii) Supplier shall control the defense of any such claim or action so long as EDS shall have the right, but not the obligation, right to participate in the defense of any such suit or proceeding at Tech Dataits expense and through counsel of its choosing, and (iv) EDS reasonably cooperates in such defense at Supplier's expensecost. NetIQ The indemnification set forth in this Section 5.02 shall not apply if the use of the then most recent version of the Licensed Software would have prevented the Action; provided, however, that if EDS is entitled to such version as part of its maintenance and support Services hereunder and Supplier had knowledge of such Action and failed to inform EDS thereof, the provisions of the indemnification set forth in this Section 5.02 shall apply. Supplier shall notify EDS of any actions, claims, or suits against Supplier based on an alleged Infringement of any party's intellectual property rights in and to the Products. In the event an injunction is sought or obtained against use of the Products or in Supplier's opinion is likely to be sought or obtained, Supplier shall, at its option and expense, either (iA) procure for Tech Data, its Customers EDS and End Users Product end users the right to continue to use the infringing Product as set forth in this Agreement, or (iiB) replace, to the extent Products are available, replace or modify the Product infringing Products to make its use non-infringing while being capable of performing the same function without degradation of performance. If neither of the foregoing alternatives (i) or (ii) is reasonably available, NetIQ shall accept a return of the Products from Tech Data, at NetIQ's sole cost and expense, and shall refund to Tech Data the full amount of the price paid by Tech Data for said returned Products, less any price protection credits, but not including any early payment or prepayment discounts. NetIQ shall have no liability under this Section 6.2 for any infringement based on the use of any Product, if the Product is used in a manner or with equipment for which it was not reasonably intended. NetIQ's obligations under this Section 6.2 shall survive termination or expiration of this Agreement.

PROPRIETARY RIGHTS INDEMNIFICATION. NetIQ hereby GMI represents and warrants ---------------------------------- that it is the sole owner of the Software and the GMI Deliverables, or has procured the Software and GMI Deliverables under valid licenses from the owners thereof, and GMI further represents and warrants that it has full power and authority to grant the rights herein granted without the consent of any other person. GMI shall defend, indemnify and hold GE harmless from and against any claim, suit, or other proceeding brought against GE based on an allegation that the Products GMI Software or the GMI Deliverables, or any elements thereof, when used in accordance with this Agreement, violates or infringes any patent, copyright, trade mark, or trade secret right arising under the law of [**], or that thx Third Party Software or any elements thereof, when used in accordance with this Agreement, violates or infringes any patent, copyright, trade mark, or trade secret right arising under the law of [**], provixxx that GMI is notified promptly in writing of such allegation, suit, or proceeding, is given sole control of the defense thereof and all related settlement [**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. negotiations, and is given full and complete authority, information and assistance (at GMI's expense) for the sale defense of same. GMI shall pay without limitation all damages and costs finally awarded against GE in, or incurred by GE in a settlement of, any such suit or proceeding, but GMI shall not be responsible for any compromise made by GE or its agents without GMI's consent. If such Software or the GMI Deliverables or any element thereof is held by a court of competent jurisdiction to be infringing, and its use is enjoined, GMI shall, at its own expense without limitation, either promptly procure the right for continued use of such software by GE, or, if the performance thereof will not thereby be materially adversely affected, promptly replace or modify such software so that it becomes non-infringing. If neither of the actions specified for GMI in the preceding sentence is commercially feasible, then as a last resort, GMI shall [**]. GMI has no liability under this Section 6 for any claim to the extent it arises out of or is related to (i) any use of the Products do Software other than in accordance with this Agreement and the Documentation [**]; (ii) a modification of the Software by or on behalf of GE where, but for such modification, there would be no infringement and such modification was not infringe upon reasonably contemplated by the parties; (iii) a combination of the Software with any copyrightthird party software or hardware if but for such combination there would be no infringement and such combination was not reasonably contemplated by the parties; or (iv) the use of a version of Software other than the then current version if infringement would have been avoided with the use of the then current version, [**]. The rights granted to GE under this Section 6 shall be GE's sole and exclusive remedy for any alleged infringement of any patent, trademarkcopyright, trade secret or other proprietary or intellectual property right of any third party, and that there are no suits or proceedings, pending or threatened alleging any such rights. Where the alleged infringement that have not been disclosed to Tech Data. Regarding any suits or proceedings which have been disclosed to Tech Data, then NetIQ will either (a) not supply Tech Data with any of the Products which are the subject of a disclosed suit or proceeding, or (b) if NetIQ supplies Tech Data with said Products, then NetIQ will be liable to Tech Data for those items in Section 6.5 below in addition to its indemnification obligations stated herein. NetIQ shall indemnify and hold Tech Data, Tech Data's parent, affiliates and subsidiaries and their respective, officers, directors, employees and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs and expenses, which they or any of them incur or become obligated to pay resulting from or arising out of any breach or claimed breach of the foregoing warranty. Tech Data shall inform NetIQ of any such suit or proceeding filed against Tech Data and shall have the right is asserted by GE to be an infringement of a GE right, but not the obligation, to participate in parties agree that the defense of any such suit or proceeding at Tech Data's expense. NetIQ shall, at its option and expense, either (i) procure for Tech Data, its Customers and End Users the right to continue to use the Product as set forth in this Agreement, or (ii) replace, to the extent Products are available, or modify the Product to make its use non-infringing while being capable of performing the same function without degradation of performance. If neither of the foregoing alternatives (i) or (ii) is reasonably available, NetIQ shall accept a return of the Products from Tech Data, at NetIQ's sole cost and expense, and shall refund to Tech Data the full amount of the price paid by Tech Data for said returned Products, less any price protection credits, but not including any early payment or prepayment discounts. NetIQ shall have no liability indemnity obligation under this Section 6.2 for any infringement based on the use of any Product, if the Product is used in a manner or with equipment for which it was 6 shall not reasonably intended. NetIQ's obligations under this Section 6.2 shall survive termination or expiration of this Agreementapply.