Common use of Software Indemnity Clause in Contracts

Software Indemnity. (i) In the event any legal proceedings are brought * against ExxonMobil or its Majority Owned Affiliates claiming that the Software or the Developer's Kit Software delivered to ExxonMobil or an ExxonMobil Majority Owned Affiliate pursuant to this Article 5 infringes a Third Party's trade secret or a claim of a Third Party's patent issued on or before the date such Software or the Developer's Kit Software is delivered hereunder, Symyx shall defend the same at its expense and pay any costs, damages, and attorney fees finally awarded or negotiated as a result of settlement or judgment against ExxonMobil or such ExxonMobil Majority Owned Affiliate, provided that ExxonMobil or such Majority Owned Affiliate gives Symyx prompt written notice within * of such claim against it and cooperates fully with Symyx in providing authority, information, and reasonable assistance to enable Symyx at its option to settle or defend such claim. ExxonMobil shall have the right, at its expense, to participate in such defense. Symyx shall have no right to settle or compromise the litigation in a manner that would * without the consent of ExxonMobil and ExxonMobil or its Majority Owned Affiliates shall have no right to settle or compromise the litigation in a manner that would *. Symyx shall have no liability for any claim hereunder based on the use of the Software or the Developer's Kit Software with any other hardware or software if such claim would have been avoided had such other hardware or software not been used with such Software or the Developer's Kit Software. (ii) In the event any such legal proceeding is brought, Symyx may, at its option, replace or modify the Software or the Developer's Kit Software or parts thereof to * Confidential treatment requested render it non-infringing, or procure for ExxonMobil or such Majority Owned Affiliate the right to continue using such Software or the Developer's Kit Software, provided that such replacement or modification does not substantially reduce the functionality thereof, and further provided that this Section 5.07(b)(ii) shall not limit Symyx' obligations pursuant to Section 5.07(b)(i). Symyx' total liability with respect to this Section 5.07 (b) shall be limited * in the aggregate. (iii) In the event any such legal proceeding results in ExxonMobil or any of its Affiliates being required to pay royalties or damages to such Third Party with respect to any Product from a Royalty-Bearing Project, then ExxonMobil shall have the right to immediately re-open the royalty determination with respect to such Product from a Royalty-Bearing Project in accordance with Exhibit L or Exhibit O, as applicable, with such re-opener limited to considering the effect of the royalties or damages required to be paid as a result of such legal proceeding.

Software Indemnity. TRM shall indemnify Licensee and its agents against any third party claims, demands, costs, or liabilities of any kind whatsoever alleging that the Licensed Software or the Documentation infringes the intellectual property rights of any third party; provided, however, that TRM will not be obligated to indemnify Licensee to the extent the alleged infringement is caused by (i) In Licensee’s misuse or modification of the event any legal proceedings are brought * against ExxonMobil or its Majority Owned Affiliates claiming that the Licensed Software or the Developer's Kit Documentation, (ii) Licensee’s failure to use corrections, Enhancements or New Versions made available by TRM that maintain specific functionality, provided that the use of such Corrections, Enhancements or New Versions would have prevented the claim, or (iii) Licensee’s use of the Licensed Software in combination with any product, process or information not owned, developed or delivered by TRM other than for purposes intended using Licensee’s data (unless Licensee’s data would itself be infringing). If the Licensed Software or any part thereof becomes, or in the opinion of TRM is likely to ExxonMobil or an ExxonMobil Majority Owned Affiliate pursuant become, subject to this Article 5 infringes a Third Party's valid claim of infringement under any patent, copyright, trade secret or a claim similar right of a Third Party's patent issued on or before any third party (other than by reason of any of the date such Software or causes set forth in clauses (i) - (iii) of the Developer's Kit Software is delivered hereunderpreceding sentence), Symyx shall defend the same at its expense and pay any costsTRM may, damagessubject to Licensee’s right to terminate set forth in Section 8.1, and attorney fees finally awarded or negotiated as a result of settlement or judgment against ExxonMobil or such ExxonMobil Majority Owned Affiliate, provided that ExxonMobil or such Majority Owned Affiliate gives Symyx prompt written notice within * of such claim against it and cooperates fully with Symyx in providing authority, information, and reasonable assistance to enable Symyx at its option to settle or defend such claim. ExxonMobil shall have (a) procure for Licensee the right, at its expense, to participate in such defense. Symyx shall have no right to settle continue to use the Licensed Software, or compromise the litigation in a manner that would * without the consent of ExxonMobil and ExxonMobil or its Majority Owned Affiliates shall have no right to settle or compromise the litigation in a manner that would *. Symyx shall have no liability for any claim hereunder based on the use of the Software or the Developer's Kit Software with any other hardware or software if such claim would have been avoided had such other hardware or software not been used with such Software or the Developer's Kit Software. (iib) In the event any such legal proceeding is brought, Symyx may, at its option, replace or modify the Licensed Software or the Developer's Kit Software or parts thereof to * Confidential treatment requested render make it become non-infringing, or procure (c) terminate this Agreement and refund a depreciated portion of the License Fee paid under this Agreement with respect to the affected Licensed Software (determined on a straight-line method over a three-year life. Licensee agrees to promptly notify TRM in writing of any such claim and to provide reasonable assistance to TRM in defending such claim. TRM shall have sole authority to defend or settle any claim. Except for ExxonMobil or such Majority Owned Affiliate the Licensee’s right to continue using such Software or the Developer's Kit Softwareterminate set forth in Section 8.1, provided that such replacement or modification does not substantially reduce the functionality thereof, and further provided that this Section 5.07(b)(ii) shall not limit Symyx' obligations pursuant to Section 5.07(b)(i). Symyx' total sets forth TRM’s complete liability with respect to this Section 5.07 (b) shall be limited * in the aggregateinfringement or intellectual property rights. (iii) In the event any such legal proceeding results in ExxonMobil or any of its Affiliates being required to pay royalties or damages to such Third Party with respect to any Product from a Royalty-Bearing Project, then ExxonMobil shall have the right to immediately re-open the royalty determination with respect to such Product from a Royalty-Bearing Project in accordance with Exhibit L or Exhibit O, as applicable, with such re-opener limited to considering the effect of the royalties or damages required to be paid as a result of such legal proceeding.

Software Indemnity. (i) In the event any legal proceedings are brought * against ExxonMobil or its Majority Owned Affiliates claiming that the Software or the Developer's ’s Kit Software delivered to ExxonMobil or an ExxonMobil Majority Owned Affiliate pursuant to this Article 5 infringes a Third Party's ’s trade secret or a claim of a Third Party's ’s patent issued on or before the date such Software or the Developer's ’s Kit Software is delivered hereunder, Symyx shall defend the same at its expense and pay any costs, damages, and attorney fees finally awarded or negotiated as a result of settlement or judgment against ExxonMobil or such ExxonMobil Majority Owned Affiliate, provided that ExxonMobil or such Majority Owned Affiliate gives Symyx prompt written notice within * of such claim against it and cooperates fully with Symyx in providing authority, information, and reasonable assistance to enable Symyx at its option to settle or defend such claim. ExxonMobil shall have the right, at its expense, to participate in such defense. Symyx shall have no right to settle or compromise the litigation in a manner that would * without the consent of ExxonMobil and ExxonMobil or its Majority Owned Affiliates shall have no right to settle or compromise the litigation in a manner that would *. Symyx shall have no liability for any claim hereunder based on the use of the Software or the Developer's ’s Kit Software with any other hardware or software if such claim would have been avoided had such other hardware or software not been used with such Software or the Developer's ’s Kit Software. (ii) In the event any such legal proceeding is brought, Symyx may, at its option, replace or modify the Software or the Developer's ’s Kit Software or parts thereof to * Confidential treatment requested render it non-infringing, or procure for ExxonMobil or such Majority Owned Affiliate the right to continue using such Software or the Developer's ’s Kit Software, provided that such replacement or modification does not substantially reduce the functionality thereof, and further provided that this Section 5.07(b)(ii) shall not limit Symyx' ’ obligations pursuant to Section 5.07(b)(i). Symyx' ’ total liability with respect to this Section 5.07 (b) shall be limited * in the aggregate. (iii) In the event any such legal proceeding results in ExxonMobil or any of its Affiliates being required to pay royalties or damages to such Third Party with respect to any Product from a Royalty-Bearing Project, then ExxonMobil shall have the right to immediately re-open the royalty determination with respect to such Product from a Royalty-Bearing Project in accordance with Exhibit L or Exhibit O, as applicable, with such re-opener limited to considering the effect of the royalties or damages required to be paid as a result of such legal proceeding.