Common use of Indemnification by Licensor Clause in Contracts

Indemnification by Licensor. Licensor shall defend, indemnify and hold harmless Licensee and its Affiliates, and their respective officers, directors, employees, agents, shareholders, successors and assigns, (collectively, the “Licensee Parties”) from and against any claim, suit, demand or action (“Action”), and any and all direct losses suffered or incurred by Licensee in connection with any third party claims (a) arising out of or resulting from any breach by Licensor of any provision of this Agreement, or (b) that Licensee’s use of the Licensed Software infringes on any intellectual property rights of such third party, provided, however, that Licensee’s use is consistent with the terms of this Agreement and that the Action is not caused by the use of the Licensed Software or any component thereof in combination with any other system, equipment or Software where but for such use, the Action for infringement would not lie. Licensor’s obligation to indemnify Licensee shall be conditioned on (a) Licensee’s provision to Licensor of prompt notice of such an Action (except where any delay does not materially prejudice Licensor); (b) Licensee’s reasonable cooperation with Licensor in the defense and settlement of such an Action at Licensor’s cost; and (c) Licensor having exclusive control of the defense, settlement and/or compromise of such an Action (provided that Licensor may not settle any Action in a manner that adversely affects Licensee without Licensee’s prior written consent, not to be unreasonably withheld or delayed).

Indemnification by Licensor. Licensor shall defend, indemnify and hold harmless Licensee and its Affiliates, and their respective officers, directors, employees, agents, shareholders, successors and assigns, (collectively, the “Licensee Parties”) from and against any claim, suit, demand or action (“Action”), and any and all direct losses suffered or incurred by Licensee in connection with any third party claims (a) arising out of or resulting from any breach by Licensor of any provision of this Agreement, Agreement or (b) that Licensee’s use of the Licensed Software infringes on any intellectual property rights of such third party, provided, however, that Licensee’s use is consistent Marks by Licensee in accordance with the terms and conditions of this Agreement and that the Action is not caused by the use of the Licensed Software infringes or any component thereof in combination with any other system, equipment or Software where but for such use, the Action for infringement would not lieotherwise violates a third party’s Trademarks. Licensor’s obligation to indemnify Licensee shall be conditioned on (a) Licensee’s provision to Licensor of prompt notice of such an Action (except where any delay does not materially prejudice Licensor); (b) Licensee’s reasonable cooperation with Licensor in the defense and settlement of such an Action at Licensor’s cost; and (c) Licensor having exclusive control of the defense, settlement and/or compromise of such an Action (provided that Licensor may not settle any Action in a manner that adversely affects Licensee without Licensee’s prior written consent, not to be unreasonably withheld or delayed).

Indemnification by Licensor. 8.1 Licensor shall defend, indemnify indemnify, and hold harmless Licensee and its AffiliatesAffiliates (other than Licensor), and their respective employees, officers, directors, employees, agents, shareholders, successors agents and assigns, representatives (collectively, the “Licensee Indemnified Parties”) ), harmless from and against any claimand all losses, suit, demand or action costs and reasonable expenses (“Action”including reasonable attorneys’ fees), damages, and liabilities arising out of any and all direct losses suffered or incurred claim by Licensee in connection with any third party claims (a) arising out of or resulting from against any breach by Licensor of Licensee Indemnified Party that any provision of this Agreementuse of, or (b) that Licensee’s use of access to, the Licensed Database IP, Licensed Software or Licensed Manager Usage by such Licensee Indemnified Party as expressly authorized under or contemplated by these Terms infringes on or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights of such any third party, provided, however, ; provided that Licensee’s use is consistent with the terms of this Agreement and that the Action is not caused by the use of the Licensed Software or any component thereof in combination with any other system, equipment or Software where but for such use, the Action for infringement would not lie. Licensor’s obligation to indemnify Licensee shall be conditioned on gives Licensor (ai) Licensee’s provision to Licensor of prompt written notice of such an Action (except where any delay does not materially prejudice Licensor)claim; (bii) Licensee’s reasonable cooperation with Licensor in authority to control and direct the defense and settlement of such an Action claim; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s cost; and (c) expense, in connection with such defense or settlement. Notwithstanding the foregoing, Licensor having exclusive control of the defense, settlement and/or compromise of such an Action (provided that Licensor may shall not settle any Action third-party claim against any Licensee Indemnified Party (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in a manner that adversely affects respect of any actual wrongdoing by such Licensee without Licensee’s Indemnified Party), or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consentconsent to such settlement. In any action for which Licensor provides defense on behalf of any Licensee Indemnified Party, not to be unreasonably withheld or delayed)such Licensee Indemnified Party may participate in such defense at its own expense by counsel of its choice.

Indemnification by Licensor. Licensor shall defend, indemnify and hold harmless Licensee Mercury Interactive and its Affiliatesall applicable Affiliates and Mercury Interactive Alliance Partners, and their respective officers, directors, employees, End Users, agents, shareholders, successors and assigns, (collectively, the “Licensee Parties”) from and against any claim, suit, demand or action (“Action”), and any and all direct losses suffered actual, damages, liabilities, settlements, costs and expenses (including legal expenses and the expenses of other professionals) as incurred, resulting from or incurred by Licensee in connection with any third party claims (a) arising out of any claim, demand, or resulting from cause of action which alleges that the Licensor Software, Documentation, or Licensor QA Tools or any breach by Licensor part thereof provided to Mercury Interactive hereunder as licensed or sublicensed hereunder infringes on of any provision patent or any copyright or misappropriation of this Agreementany trade secret, or infringes or misappropriates any other Intellectual Property right of a third party (b) that Licensee’s use “Claim”). Mercury Interactive or its Affiliate will provide Licensor with prompt written notice of the Licensed Software infringes on any intellectual property rights filed Claim and permit Licensor to control the defense, settlement, adjustment or compromise of such third party, Claim; provided, however, that Licensee’s use if the Claim is consistent with 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 terms of this Agreement and that the Action is not caused by the use defense, settlement, adjustment or compromise of the Licensed Software or any component thereof Claim against Mercury Interactive, in combination with any other system, equipment or Software where but for such use, the Action for infringement would not lie. Licensor’s obligation to indemnify Licensee shall be conditioned on which event: (a) Licensee’s provision the parties agrees to Licensor cooperate together and provide any assistance as may be reasonably necessary for the defense, settlement, adjustment or compromise of prompt notice of any such an Action (except where any delay does not materially prejudice Licensor); Claim, and (b) Licensee’s reasonable cooperation 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 in or its counsel or because Licensor does not assume control, Licensor will bear the defense and settlement expense of such an Action at Licensor’s cost; and (c) Licensor having exclusive control of the defense, settlement and/or compromise of such an Action (provided that Licensor may not counsel. Mercury Interactive shall have no authority to settle any Action in a manner that adversely affects Licensee without Licensee’s prior written consent, not to be unreasonably withheld or delayed)Claim on behalf of Licensor.

Indemnification by Licensor. Licensor LICENSOR shall defend, indemnify and hold LICENSEE harmless Licensee from all losses, liabilities, damages and its Affiliates, expenses (including reasonable attorneys’ fees and their respective officers, directors, employees, agents, shareholders, successors and assigns, (collectively, the “Licensee Parties”costs) from and against incurred by LICENSEE as a result of any Third Party claim, suitdemand, demand action or action (“Action”), and any and all direct losses suffered or incurred by Licensee in connection with any third party claims (a) arising out of or resulting from any other proceeding related to breach by Licensor LICENSOR of any provision of this Agreementthe warranties set forth in Article 5, or (b) any legal action filed in any court based upon the allegation that LicenseeLICENSEE’s use of the Licensed Software Technology infringes on any upon such Third Party’s intellectual property rights rights. Indemnification by LICENSOR shall not include any allegation of such third party, provided, however, that Licensee’s use is consistent with infringement by a Licensed Product used or sold by LICENSEE or its Affiliates to the terms of this Agreement and extent that the Action is not caused by the use element or feature of the Licensed Software Product that is alleged to be in breach of warranty or infringing is unrelated to the Licensed Technology. If LICENSEE proposes to seek indemnification from the LICENSOR under the provisions of this Section 10.4, it shall notify the LICENSOR in writing within thirty (30) days of receipt of notice of any component thereof in combination with any other system, equipment such claim or Software where suit. LICENSOR shall have the right but for such use, not the Action for infringement would not lie. Licensor’s obligation to indemnify Licensee shall be conditioned on (a) Licensee’s provision to Licensor of prompt notice of such an Action (except where any delay does not materially prejudice Licensor); (b) Licensee’s reasonable cooperation with Licensor participate in the defense and settlement of such an Action at Licensor’s cost; claim, and (c) Licensor having exclusive control the parties shall mutually agree upon counsel and monetary settlement terms with respect to any such claim. LICENSOR agrees to promptly make arrangements to pay for any legal fees pursuant to the foregoing indemnification provisions during the pendency of any Third Party claim, demand, action or other proceeding, giving rise to the defense, settlement and/or compromise of such an Action (provided that Licensor may not settle any Action in a manner that adversely affects Licensee without Licensee’s prior written consent, not to be unreasonably withheld or delayed)claim for indemnification.

Indemnification by Licensor. Licensor shall defend, indemnify and hold harmless Licensee and its Affiliatesrepresentatives (with respect to a party, and their respective its officers, directors, employeesequity owners, agentsemployees and other representatives and its parents, shareholderssubsidiaries and affiliates and their officers, successors directors, equity owners, employees and assigns, other representatives (collectively, the “Licensee PartiesRepresentatives”)) from and against any claimand all claims, suitdamages, demand or action liabilities, costs and expenses, including reasonable outside counsel fees (“ActionDamages”), and any and all direct losses suffered or incurred by Licensee in connection with any arising from a third party claims claim (aor threatened claim) (i) arising out of from or resulting from any relating to the breach by Licensor of any provision of its representations or warranties or any material provisions of this Agreement or (ii) that any of the Included Programs or exhibition thereof in strict accordance with this Agreement, or (b) that Licensee’s use under the law of the Licensed Software infringes on Territory, infringe upon the trade name, trademark, copyright, music synchronization, literary or dramatic right or right of privacy of any intellectual property claimant (not including public performance/making available, mechanical/reproduction/copying and other rights which are covered under Section 11 of this Schedule) or constitutes a libel or slander of such third party, provided, however, claimant; provided that Licensee’s use is consistent with Licensee shall promptly notify Licensor of any such claim or litigation of which it becomes aware. Notwithstanding the terms of this Agreement and that the Action is not caused by the use of the Licensed Software or any component thereof in combination with any other system, equipment or Software where but for such useforegoing, the Action for infringement would not lie. failure to provide such prompt notice shall diminish Licensor’s obligation indemnification obligations only to the extent Licensor is actually prejudiced by such failure. In addition, Licensor shall not be required to indemnify Licensee shall be conditioned on (a) or its Representatives for any claims resulting from Licensee exhibiting an Included Programs or using Advertising Materials in a form other than as delivered by Licensor, or due to Licensee’s provision editing or modification of any Included Programs or Advertising Materials, or due to Licensor of prompt notice of such an Action (except where any delay does not materially prejudice Licensor); (b) Licensee’s reasonable cooperation with Licensor in the defense and settlement authorization of such an Action at Licensor’s cost; and (c) Licensor having exclusive control a third party to do any of the defense, settlement and/or compromise of such an Action (provided that Licensor may not settle any Action in a manner that adversely affects Licensee without Licensee’s prior written consent, not to be unreasonably withheld or delayed)foregoing.

Indemnification by Licensor. Licensor shall will defend, indemnify indemnify, and hold harmless Licensee against all claims and its Affiliatesexpenses, and their respective officersexcept as specifically excluded herein, directorsarising from any third-party claim alleging that Licensor’s Software, employeesData, agentsDocumentation, shareholdersor Services infringe upon the United States copyright, successors and assignstrademark, or service xxxx rights of any third-party (collectively, the an “Licensee Parties”) from and against any claim, suit, demand or action (“ActionIndemnified Claim”), and any and all direct losses suffered or incurred by Licensee in connection with any third party claims if Licensee: (a) arising out of has used Licensor’s Software, Data, Documentation, or resulting from any breach by Licensor of any provision of Services, as the case may be, in full compliance with this Agreement, or (b) that Licensee’s use of the Licensed Software infringes on any intellectual property rights of such third party, provided, however, that Licensee’s use is consistent with the terms of this Agreement and that the Action is not caused by the use of the Licensed Software or any component thereof in combination with any other system, equipment or Software where but for such use, the Action for infringement would not lie. Licensor’s obligation to indemnify Licensee shall be conditioned on (a) Licensee’s provision to Licensor of prompt notice of such an Action (except where any delay does not materially prejudice Licensor); (b) Licensee’s reasonable cooperation with promptly notifies Licensor in of the claim; (c) allows Licensor to have sole control of the defense and settlement of such an Action Indemnified Claim (though Licensee may participate in its own defense at Licensor’s costits own expense); and (cd) provides Licensor having exclusive control with the authority, information and assistance that Licensor deems reasonably necessary for the defense and settlement of the defense, settlement and/or Indemnified Claim. Licensee shall not consent to any judgment or decree or do any other act in compromise of any such Indemnified Claim without first obtaining Licensor’s written consent. If an Action (provided Indemnified Claim is brought or credibly threatened, Licensor shall have the option, at its sole expense, to obtain for Licensee the right to continue using Licensor’s Software, Data, Documentation, or Services, or to modify Licensor’s Software, Data, Documentation, or Services so that Licensor they become non-infringing. If neither of the foregoing remedies are commercially feasible, Licensee may not settle any Action terminate the Agreement for the infringing Software, Data, Documentation, or Services. The indemnity set forth in a manner that adversely affects Licensee without this Section shall be Licensee’s prior written consentsole and exclusive remedy for any intellectual property infringement claim arising out of Licensee’s use of Licensor’s Software, not to be unreasonably withheld Data, Documentation, or delayed)Services.

Indemnification by Licensor. Licensor shall defend, indemnify and hold harmless Licensee and at its Affiliatessole expense, and their respective officers, directors, employees, agents, shareholders, successors and assigns, (collectively, the “Licensee Parties”) from and against any claim, suit, demand suit or action (“Action”), and any and all direct losses suffered or incurred proceeding brought against Licensee by Licensee in connection with any a third party claims insofar as such suit or proceeding shall be based upon a claim (aA) arising out that if true would be a breach of the representations, warranties or resulting from any breach agreements made by Licensor of any provision of under this Agreement, or (bB) a claim that the Licensor Properties or any modifications made by Licensor to the Licensee Technology or part thereof (unless any such modification was made by or at the written request of Licensee’s use of the Licensed Software infringes on ) where such infringement would not have occurred but for such modification, violate or infringe any intellectual property rights copyright of such third party. Licensor shall pay any damages and costs finally awarded against Licensee, providedand/or settlement amounts agreed to with respect to any such claim, however, that Licensee’s use is consistent with the terms of this Agreement and that the Action is not caused by the use provided that: (A) Licensor shall have been promptly notified of the Licensed Software suit or any component thereof in combination claim by Licensee and provided with any a copy of each communication, notice or other system, equipment or Software where but for such use, the Action for infringement would not lie. Licensor’s obligation action relating to indemnify Licensee shall be conditioned on (a) Licensee’s provision to Licensor of prompt notice of such an Action (except where any delay does not materially prejudice Licensor)said claim; (bB) Licensee’s reasonable cooperation with Licensor in shall have the defense and right to assume sole authority to conduct the trial or settlement of such an Action claim or any negotiations related thereto at Licensor’s cost's expense; and (c) Licensee shall have provided Licensor having exclusive control all information and assistance reasonably requested by Licensor in connection with such claim or suit. Subject to the foregoing, Licensee shall have the right, at its own expense and in its absolute discretion, to employ attorneys of its own choice and to participate in the defensedefense and/or settlement of any claim, settlement and/or compromise of such an Action (provided that Licensor may not settle any Action in a manner that adversely affects Licensee without Licensee’s prior written consent, not to be unreasonably withheld suit or delayed)proceeding covered under this Section 9.6.

Indemnification by Licensor. Licensor shall defend, indemnify indemnify, and hold harmless the Licensee and its Affiliatesthe affiliates and Representatives of Licensee (each, and their respective officersa “Licensee Indemnified Party” and, directors, employees, agents, shareholders, successors and assigns, (collectively, the “Licensee Indemnified Parties”) from and against any claimand all Losses asserted against, suitincurred, demand sustained or action suffered by a Licensee Indemnified Party as a result of, arising out of, or relating to, a claim that the Platform as licensed and delivered to Licensee by Licensor infringes or misappropriates the Intellectual Property of any third-party existing as of the Effective Date (each an “ActionInfringement Claim”); provided, and however that Licensor shall have no obligation to Licensee under this Agreement with respect to any and all direct losses suffered or incurred by Licensee in connection with any third party claims Infringement Claim arising: (a) arising out of or resulting from any breach by Licensor of any provision of this Agreement, twenty four (24) months after the Effective Date; or (b) that 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 Representative or sublicensees’ use of the Licensed Software infringes on Platform or any intellectual property rights of such third party, provided, however, that Licensee’s use is consistent with the terms Licensor Intellectual Property in any manner in violation of this Agreement or associated Documentation; and that (iv) the Action is not caused by the use combination of the Licensed Software Platform and Licensor Intellectual Property with any Licensee or third-party software or other Intellectual Property. If the Platform or any component thereof in combination with Licensor Intellectual Property becomes the subject of any other systemInfringement Claim or injunction, equipment or Software where but Licensor may (at Licensee’s option), do one of the following to mitigate the Losses relating to the Infringement Claim: (1) procure for such use, the Action for infringement would not lie. Licensee (at Licensor’s obligation expense) the right to indemnify 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 commercially reasonable effort or expense to make such modifications, then Licensee shall be conditioned on entitled to terminate this Agreement without further liability to Licensor or elect to continue this Agreement and without the benefit of indemnification as a result of such breach. This Section 14.1 (aIndemnification by Licensor) is Licensee’s provision to sole and exclusive remedy for any claim that the Platform or any Licensor Intellectual Property infringes or misappropriates the Intellectual Property of prompt notice of such an Action (except where any delay does not materially prejudice Licensor); (b) Licensee’s reasonable cooperation with Licensor in the defense and settlement of such an Action at Licensor’s cost; and (c) Licensor having exclusive control of the defense, settlement and/or compromise of such an Action (provided that Licensor may not settle any Action in a manner that adversely affects Licensee without Licensee’s prior written consent, not to be unreasonably withheld or delayed)third party.

Indemnification by Licensor. 8.1 Licensor shall defend, indemnify indemnify, and hold harmless Licensee and its AffiliatesAffiliates (other than Licensor), and their respective employees, officers, directors, employees, agents, shareholders, successors agents and assigns, representatives (collectively, the “Licensee Indemnified Parties”) ), harmless from and against any claimand all losses, suit, demand or action costs and reasonable expenses (“Action”including reasonable attorneys’ fees), damages, and liabilities arising out of any and all direct losses suffered or incurred claim by Licensee in connection with any third party claims (a) arising out of or resulting from against any breach by Licensor of Licensee Indemnified Party that any provision of this Agreementuse of, or (b) that Licensee’s use of access to, the Licensed Intellectual Property or Licensed Software by such Licensee Indemnified Party as expressly authorized under or contemplated by these Terms infringes on or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights of such any third party, provided, however, ; provided that Licensee’s use is consistent with the terms of this Agreement and that the Action is not caused by the use of the Licensed Software or any component thereof in combination with any other system, equipment or Software where but for such use, the Action for infringement would not lie. Licensor’s obligation to indemnify Licensee shall be conditioned on gives Licensor (ai) Licensee’s provision to Licensor of prompt written notice of such an Action (except where any delay does not materially prejudice Licensor)claim; (bii) Licensee’s reasonable cooperation with Licensor in authority to control and direct the defense and settlement of such an Action claim; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s cost; and (c) expense, in connection with such defense or settlement. Notwithstanding the foregoing, Licensor having exclusive control of the defense, settlement and/or compromise of such an Action (provided that Licensor may shall not settle any Action third-party claim against any Licensee Indemnified Party (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in a manner that adversely affects respect of any actual wrongdoing by such Licensee without Licensee’s Indemnified Party), or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consentconsent to such settlement. In any action for which Licensor provides defense on behalf of any Licensee Indemnified Party, not to be unreasonably withheld or delayed)such Licensee Indemnified Party may participate in such defense at its own expense by counsel of its choice.

Indemnification by Licensor. Subject to the provisions of this Section 12, Licensor shall defendat its expense, indemnify and hold harmless defend any action against Licensee and its Affiliates, and their respective officers, directors, employees, agents, shareholders, successors and assigns, (collectively, to the “Licensee Parties”) from and against any claim, suit, demand or extent such action (“Action”), and any and all direct losses suffered or incurred by Licensee in connection with any third party claims (a) arising out of or resulting from any breach by Licensor of any provision of this Agreement, or (b) is based on a claim that Licensee’s use of the Licensed Software infringes on any intellectual property rights of such third party, provided, however, that Licensee’s use is consistent with the terms of this Agreement and that the Action is not caused by the use of the Licensed Software Technology or a component of the Licensed Technology as contemplated in this Agreement infringes a patent, copyright, trademark or other intellectual property right, and Licensor shall pay those damages or costs awarded against Licensee notifies Licensor promptly in writing of such action, Licensee gives Licensor sole control of the defense thereof (and any negotiations for settlement or compromise thereof as far as legally 13 13 possible), and Licensee cooperates in the defense thereof at Licensor's expense. If Licensed Technology or any component thereof of the Licensed Technology becomes, or in combination with any other system, equipment or Software where but for such useLicensor's opinion is likely to become, the Action for infringement would not lie. Licensor’s obligation to indemnify subject of a claim of infringement, then Licensee shall be conditioned on permit Licensor, at its option and expense, including all costs and expenses of Licensee either to (i) procure for Licensee the right to continue using the Licensed Technology or the infringing component of the Licensed Technology or (ii) replace or modify Licensed Technology or the infringing component of the Licensed Technology so that it becomes noninfringing. Licensee shall not incur any costs of expenses for the account of Licensor under or pursuant to this Section 12 (a) Licensee’s provision to Licensor of prompt notice of such an Action (except where any delay does not materially prejudice without Licensor); (b) Licensee’s reasonable cooperation with Licensor in the defense and settlement of such an Action at Licensor’s cost; and (c) Licensor having exclusive control of the defense, settlement and/or compromise of such an Action (provided that Licensor may not settle any Action in a manner that adversely affects Licensee without Licensee’s 's prior written consent, not to be unreasonably withheld or delayed).

Indemnification by Licensor. Licensor shall agrees to indemnity, defend, indemnify and hold harmless Licensee and (including its Affiliates, and their respective officers, directors, shareholders, employees, trustees, agents, shareholderslab directors, successors technologists and assigns, (collectively, the “Licensee Parties”other staff or representatives) harmless from and against any claimall Losses, suit, demand or action (“Action”), and any and all direct losses suffered or incurred by Licensee in connection with any third party claims (a) arising out of or resulting from (i) any breach by Licensor of any provision of its representations, warranties and obligations under this Agreement, (ii) any claim brought by a third party to the extent It alleges damages resulting from a problem or defect with the BJONIK Intellectual Property, or (biii) any claim brought by a third party to the extent it alleges that Licensee’s use and BIONIK Intellectual Property infringes any patent, copyright, or trademark, or misappropriates any trade secret, of the Licensed Software infringes on any intellectual property rights of such that third party. Licensee will promptly notify Licensor of any threatened or pending claims, provideddemands, howevercauses of action, losses, damages, penalties, fines, expenses or judgments that Licensee’s use is consistent with the terms of this Agreement and that the Action is not caused by the use of the Licensed Software or any component thereof in combination with any other system, equipment or Software where but for such use, the Action for infringement would not lie. Licensor’s could give rise to an obligation to indemnify Licensee shall be conditioned on (a) Licensee’s provision to under this Section, Licensor of prompt notice of such an Action (except where any delay does not materially prejudice Licensor); (b) Licensee’s reasonable cooperation with Licensor in will control the defense of any action in which Licensee is indemnified under this Agreement, including the right to select counsel, and settlement of such an Action at Licensor’s cost; and (c) Licensor having exclusive control of the defense, settlement and/or compromise of such an Action (provided that Licensor may not to settle any Action in a manner that adversely affects claim; provided that, without the written consent of Licensee without Licensee’s prior written consent, (which will not to be unreasonably withheld or delayed), Licensor will not agree to settle any claim against Licensee to the extent such settlement would create any obligation or action on the part of Licensee other than the payment of money (subject to indemnification) or would have a material, adverse effect on Licensee. Licensee will cooperate as reasonably requested (at the expense of Licensor) in the defense of any such action.

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 Licensee Licensee, its subsidiaries and its Affiliatesaffiliates, and their respective shareholders, licensees and franchisees and the agents, officers, directorsdirectors and employees of each against and from all costs, employeesclaims, agentssuits, shareholderslosses, successors damages and assignsexpenses, including, without limitation reasonable attorneys' fees (collectively, provided prompt notice of each such claim or suit which comes to the “attention of Licensee Parties”) from and against any claim, suit, demand or action (“Action”), and any and all direct losses suffered or incurred is given to Licensor by Licensee in connection with any third party claims (aLicensee) arising out of or resulting from any breach by Licensor of any provision of this Agreement, or (b) that Licensee’s in connection with the authorized use of the Licensed Software infringes Playboy Properties on any intellectual property rights of such third party, provided, however, that Licensee’s use is consistent or in connection with the terms Products by Licensee in the Territory, but in no event shall such indemnification include incidental or consequential damages, including, but not limited to compensation or reimbursement for loss of prospective profits, anticipated sales or other losses occasioned by termination of this Agreement and that the Action is not caused by the use of the Licensed Software or any component thereof in combination other reason(s). Licensor shall have the option to settle or to undertake and conduct the defense of any such claim or suit. 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 other system, equipment claim or Software where but for such use, the Action for infringement would not lie. Licensor’s obligation suit and no negotiations by Licensee with respect to indemnify Licensee any compromise or settlement shall be conditioned on (a) Licensee’s provision to Licensor of prompt notice of such an Action (except where any delay does not materially prejudice Licensor); (b) Licensee’s reasonable cooperation with Licensor in had, made or entered into without the defense and settlement of such an Action at Licensor’s cost; and (c) Licensor having exclusive control of the defense, settlement and/or compromise of such an Action (provided that Licensor may not settle any Action in a manner that adversely affects Licensee without Licensee’s prior written consent, not to be unreasonably withheld or delayed)approval of Licensor.

Indemnification by Licensor. Licensor shall will, at its sole expense, defend, indemnify indemnify, and hold harmless Licensee and its Affiliates, Affiliates and their respective officers, directors, shareholders or owners, employees, agents, shareholders, successors and assigns, agents (collectively, the “Licensee PartiesIndemnitees”) from and against any claim, suit, demand or action (“Action”), and any and all direct losses suffered Third Party claims, suits, proceedings, damages, losses, liabilities, taxes, costs, expenses (including court costs and reasonable attorneys’ fees and expenses) and recoveries (collectively, “Claims”) to the extent that such Claims arise out of, are based on, or incurred by Licensee in connection with any third party claims result from (a) arising the research, Development, manufacture, use, testing or Commercialization of any Compound or Product by or on behalf of Licensor or its Affiliates or its or their sublicensees (other than Licensee and its Affiliates), (b) the breach of any of Licensor’s obligations under this Agreement or the Principal License Agreement, including Licensor’s representations and warranties, covenants and agreements, or (c) the willful misconduct or negligent acts of Licensor, its Affiliates, or the officers, directors, employees, or agents of Licensor or its Affiliates. The foregoing indemnity obligation will not apply (i) to the extent that (x) the Licensee Indemnitees fail to comply with the indemnification procedures set forth in Section 11.3 and Licensor’s defense of the relevant Claims is prejudiced by such failure or (y) such Claims arise out of or resulting result from the gross negligence or willful misconduct of Licensee or its Affiliates, or any related breach by Licensor Licensee of its representations, warranties or covenants or any provision other obligation of this Agreement, Licensee hereunder; or (bii) that Licensee’s use of the Licensed Software infringes on any intellectual property rights of such third party, provided, however, that Licensee’s use is consistent with the terms of this Agreement and that the Action is not caused by the use of the Licensed Software or any component thereof in combination with any other system, equipment or Software where but to Claims for such use, the Action for infringement would not lie. Licensor’s which Licensee has an obligation to indemnify Licensee shall be conditioned on (a) Licensee’s provision Licensor pursuant to Licensor Section 11.2, as to which Claims each Party will indemnify the other to the extent of prompt notice of its respective liability for such an Action (except where any delay does not materially prejudice Licensor); (b) Licensee’s reasonable cooperation with Licensor in the defense and settlement of such an Action at Licensor’s cost; and (c) Licensor having exclusive control of the defense, settlement and/or compromise of such an Action (provided that Licensor may not settle any Action in a manner that adversely affects Licensee without Licensee’s prior written consent, not to be unreasonably withheld or delayed)Claims.

Indemnification by Licensor. 8.1 Licensor shall defend, indemnify indemnify, and hold harmless Licensee and its AffiliatesAffiliates (other than Licensor), and their respective employees, officers, directors, employees, agents, shareholders, successors agents and assigns, representatives (collectively, the “Licensee Indemnified Parties”) ), harmless from and against any claimand all losses, suit, demand or action costs and reasonable expenses (“Action”including reasonable attorneys’ fees), damages, and liabilities arising out of any and all direct losses suffered or incurred claim by Licensee in connection with any third party claims (a) arising out of or resulting from against any breach by Licensor of Licensee Indemnified Party that any provision of this Agreementuse of, or (b) that Licensee’s use of access to, the Licensed Intellectual Property or Licensed Software by such Licensee Indemnified Party as expressly authorized under or contemplated in this Agreement infringes on or misappropriates, as applicable, any trademarks, patent, copyrights, trade secrets or other intellectual property rights of such any third party, provided, however, ; provided that Licensee’s use is consistent with the terms of this Agreement and that the Action is not caused by the use of the Licensed Software or any component thereof in combination with any other system, equipment or Software where but for such use, the Action for infringement would not lie. Licensor’s obligation to indemnify Licensee shall be conditioned on gives Licensor (ai) Licensee’s provision to Licensor of prompt written notice of such an Action (except where any delay does not materially prejudice Licensor)claim; (bii) Licensee’s reasonable cooperation with Licensor in authority to control and direct the defense and settlement of such an Action claim; and (iii) such information and assistance as Licensor may reasonably request, at Licensor’s cost; and (c) expense, in connection with such defense or settlement. Notwithstanding the foregoing, Licensor having exclusive control of the defense, settlement and/or compromise of such an Action (provided that Licensor may shall not settle any Action third-party claim against any Licensee Indemnified Party (A) if such settlement requires such Licensee Indemnified Party to admit to any wrongdoing (other than in a manner that adversely affects respect of any actual wrongdoing by such Licensee without Licensee’s Indemnified Party), or (B) unless (i) such settlement completely and forever releases such Licensee Indemnified Party with respect thereto, or (ii) such Licensee Indemnified Party provides its prior written consentconsent to such settlement. In any action for which Licensor provides defense on behalf of any Licensee Indemnified Party, not to be unreasonably withheld or delayed)such Licensee Indemnified Party may participate in such defense at its own expense by counsel of its choice.