Common use of Indemnification by Licensor Clause in Contracts

Indemnification by Licensor. Licensor shall (i) indemnify, hold harmless and defend (or at its option settle) any claim or suit against Pumatech, or their officers, directors, agents, and employees (the “Indemnified Parties”) arising from or related to any alleged infringement of any Intellectual Property Right by the Programs or use thereof, 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 information known to it relating thereto, and (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, or in the opinion of Licensor may become, the subject of any claim or suit for infringement of any Intellectual Property Right, Licensor may, and in the event of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shall, at its option and expense, do one of the following: (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 combination, operation, or use of the Program with software that was not provided by Licensor, if such claim would have been avoided in the absence of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreement; or (c) use of other than the most recent version of the Programs if use of a more recent version would avoid such infringement.

Indemnification by Licensor. Licensor shall (i) LICENSOR will indemnify, defend, and hold LICENSEE harmless from and defend against any and all losses, liabilities, claims, causes of action, damages, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by LICENSEE as a result of any claim by any person, firm or entity that LICENSEE’S use of the Trademarks in accordance with this Agreement infringes upon any rights granted to such person, firm or entity by LICENSOR, or infringes upon the rights of any other 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 to direct the defense thereof through counsel selected and paid for by LICENSOR. LICENSEE may thereafter, at its option settle) own expense, be represented by its own counsel in such action or proceeding. LICENSEE may not settle or compromise any claim or suit against Pumatech, or their officers, directors, agents, and employees (the “Indemnified Parties”) arising from or related to any alleged infringement of any Intellectual Property Right by the Programs or use thereof, 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 action without the prior written approval of LICENSOR. In either case, LICENSOR and give Licensor LICENSEE will keep each other fully advised of all information known to it relating thereto, developments and (c) the Indemnified Party must reasonably shall cooperate fully with Licensor each other and in the settlement and/or all respects in connection with any such defense. The Indemnified Party shall be reimbursed 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 provide the indemnification or defense provided for all reasonable out-of-pocket expenses incurred in providing this paragraph 19(C), LICENSEE may do so and deduct the cost thereof from any cooperation requested by Licensor. If all Minimum Annual Royalty or any part of the Programs are, or in the opinion of Licensor may become, the subject of any claim or suit for infringement of any Intellectual Property Right, Licensor may, and in the event of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shall, at its option and expense, do one of the following: (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 other amounts due LICENSOR under this Section to the extent a claim described therein is based upon (a) the combination, operation, or use of the Program with software that was not provided by Licensor, if such claim would have been avoided in the absence of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreement; or (c) use of other than the most recent version of the Programs if use of a more recent version would avoid such infringement.

Indemnification by Licensor. Licensor shall (i) indemnify, defend and hold Seelos and its Affiliates and Sublicensees and each of their respective agents, employees, officers and directors (all together, the “Seelos Indemnitees”) harmless from and defend against any and all actions, judgments, settlements, liabilities, damages, penalties, fines, losses, costs and expenses (including reasonable attorneys’ fees and expenses) to the extent arising out of any and all Claims related to (a) Licensor’s performance of its obligations or at exercise (by it or its option settleAffiliates) 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, warranties 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 claim Study conducted by or suit against Pumatechfor Licensor or its Affiliates or sublicensees; (g) interactions and communications by Licensor, its Affiliates, sublicensees, contractors or agents with governmental authorities, physicians or other third parties relating to Licensed Products and/or Captisol; or (h) the negligence or willful misconduct of Licensor or its Affiliates or agents or any of their respective officers, directors, agentsmanagers, employees or agents in connection with this Agreement or the Supply 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 employees (the “Indemnified Parties”) arising from or related to any alleged infringement of any Intellectual Property Right by the Programs or use thereof, and (ii) pay any judgment entered against any Indemnified Party on such claim when due, or any settlement thereof. The following procedures otherwise shall not 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 information known to it relating thereto, and (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, or in the opinion of Licensor may become, the subject of any claim or suit for infringement of any Intellectual Property Right, Licensor may, and in the event of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shall, at its option and expense, do one of the following: (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 that a claim described therein is based upon Claim arises from, a Seelos Indemnitee’s breach of applicable law, breach of this Agreement or the Supply Agreement, negligence or willful misconduct or infringement by the combination itself of Captisol with acetaminophen (amodified or not) or by the combination, operation, combination itself of Licensor Know-How as delivered by Licensor with Seelos Background Technology or use Seelos Foreground Technology or modification of the Program with software that was not provided Licensor Know-How as delivered by Licensor, if such claim would have been avoided in the absence of such combination, operation;(b) the use of a Program in a manner not authorized Licensor by this Agreement; or (c) use of other than the most recent version of the Programs if use of a more recent version would avoid such infringementfor Seelos.

Indemnification by Licensor. Licensor shall (i) agrees to indemnify, hold harmless and defend Licensee and Licensee Representatives (or at its option settle) any claim or suit against Pumatechcollectively, or their officers, directors, agents, and employees (the “Licensee Indemnified Parties”) arising from or related from, against and with respect to any alleged infringement Claim arising out of the breach of any Intellectual Property Right by the Programs representation, warranty or use thereofcovenant of Licensor under this Agreement, and (ii) pay for any judgment entered against any Indemnified Party on such claim when due, Claims that the Licensor Rights or any settlement thereof. The following procedures shall apply to any indemnified claim: (a) Licensor shall have sole control Licensee’s use of the defense and/or settlement (b) the Indemnified Party must notify Licensor promptly in writing of such claim Rights infringe or suit and give Licensor all information known to it relating theretoviolate any patents, and (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 copyrights, trademarks or any part of the Programs are, trade secrets or in the opinion of Licensor may become, the subject other intellectual property rights of any claim or suit for infringement of any Intellectual Property Right, Licensor may, and in Person. In the event of any adjudication that any Program such Claim, Licensor shall defend the Licensee Indemnified Party or any part thereof does infringe 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 unreasonably withheld or if the use of a Program or any part thereof is enjoined Licensor shalldelayed. In addition, at its option and expense, do one of the following: (1) procure for the Licensee Indemnified Parties shall have the right to use and distribute hire counsel, at their sole expense, who shall cooperate with Licensor’s counsel in 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 defense of any Claim indemnified under this Section 11.2; provided that if Licensee reasonably determines there are Claims or defenses available to the extent Licensee Indemnified Parties which are not otherwise available to Licensor or if a claim described therein is based upon (a) the combination, operationconflict of interest exists between Licensor and Licensee Indemnified Parties, or use 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 their choosing, and the cost thereof shall be borne by Licensor. The settlement of any Claim which is the subject of the Program with software that was not provided by Licensor, if such claim would have been avoided in the absence of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreement; or (c) use of other foregoing indemnification and which involves more than the most recent version payment by Licensor of monetary damages shall require Licensee’s prior approval; provided that if Licensee does not approve any such settlement and, after Licensor’s reasonable diligence in defending such Claim, the amount of the Programs if use final judgment or award exceeds the amount of a more recent version would avoid the settlement proposed by Licensor and disapproved by Licensee, then Licensee shall be responsible to pay any such infringementexcess amount, plus Licensor’s reasonable costs and expenses of litigation (including reasonable attorneys’ fees).

Indemnification by Licensor. Licensor shall (i"Indemnitor") will indemnify, defend and hold Licensee harmless from and defend against any and all claims, losses, costs, liabilities and expenses (including reasonable attorneys' fees), arising as a result of or at its option settle) any claim or suit against Pumatech, or their officers, directors, agents, and employees (the “Indemnified Parties”) arising from or related to any in connection with Licensor's alleged infringement of any Intellectual Property Right by the Programs intellectual property rights arising from Licensor's products, or use thereof, and for breach of any representations or warranties provided: (i) Licensee promptly gives written notice of any claim to Licensor; (ii) pay at Licensor's expense, the Licensee provides any judgment entered against assistance that Licensor may reasonably request for the defense of the claim; and (iii) Licensor has the right to control the defense or settlement of the claim, provided however, that the Licensee shall have the right to participate in, but not control, any Indemnified Party on such claim when duelitigation for which indemnification is sought with counsel of its own choosing, at its own expense. Additionally, if an injunction or order issues restricting the use or distribution of any of the Licensor's Products, or any settlement thereof. The following procedures shall apply if Licensor determines that Licensor's Products are likely 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 information known to it relating thereto, and (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, or in the opinion of Licensor may become, become the subject of any a claim of infringement or suit for infringement violation of a patent, copyright, trade secret or other intellectual or proprietary right of any Intellectual Property Rightthird party, Licensor may, and in the event of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shall, at its option and expense, do one of the following: (1a) procure for the Indemnified Parties the right for licensee to use continue using, reproducing, and distribute the Program or the affected part thereof; (2) replace the Program or affected part with non-infringing programsdistributing Licensor's Products pursuant to this agreement; or (3b) replace or modify the Program Licensor's products so that they become noninfringing, provided such modification or affected part to make it non-infringing. Licensor will have no obligations under this Section to replacement does not materially alter or affect the extent a claim described therein is based upon (a) specifications for or the combination, operation, use or use operation of the Program with software that was not provided by Licensor, if such claim would have been avoided in the absence of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreement; or (c) use of other than the most recent version of the Programs if use of a more recent version would avoid such infringement.'s Products. UNDER 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. Licensor's Initial _______ Licensee's Initial ______ Palmchip/Wintegra Technology License Agreement #201

Indemnification by Licensor. Licensor shall (i) indemnify, does hereby indemnify and hold harmless and defend (or at its option settle) any claim or suit against PumatechLicensee, or their officers, directors, agents, and employees (the “Indemnified Parties”) arising from or related to any alleged infringement of any Intellectual Property Right by the Programs or use thereof, and (ii) pay any judgment entered against any Indemnified Party on such and all liabilities, damages and expense (including reasonable attorneys' fees, costs and expenses) which Licensee may incur or be obligated to pay in any action or 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 information known to it relating thereto, and (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, or in the opinion of Licensor may become, the subject of any claim or suit against Licensee for infringement of any Intellectual Property Right, Licensor may, and other person's claimed right to use a trademark in the event Territory, but only where such action or claim results from Licensee's use of the Trademark in the Territory in accordance with the terms of this Agreement. Licensee shall give Licensor prompt written notice of any adjudication such claim or action and thereupon Licensor shall undertake and conduct the defense of any suit so brought. It is understood, however, that any Program or any part thereof does infringe or if there is a dispute between Licensor and Licensee as to whether the suit was brought as a result of Licensee's failure to use the Trademark in accordance with the terms of a Program or any part thereof this Agreement Licensee may be required to conduct such defense unless and until it is enjoined Licensor shall, at its option and expense, do one determined that no such misuse of the following: Trademark occurred. In the event appropriate action is not taken by Licensor within thirty (130) procure for the Indemnified Parties days of its receipt of notice from Licensee, Licensee shall have the right to use defend such claim or action in its own name, but no settlement or compromise of any such claim or action may be made without the prior written approval of Licensor. In either case, Licensor and distribute the Program or the affected part thereof; (2) replace the Program or affected part Licensee shall keep each other fully advised of all developments and shall cooperate fully with non-infringing programs; or (3) modify the Program or affected part each other and in all respects in connection with any such defense. Such indemnification shall be deemed to make it non-infringing. Licensor will have no obligations under this Section apply solely to the extent a claim described therein is based upon (a) the combination, operation, or use amount of the Program with software that was not provided by Licensorjudgment, if such claim would have been avoided any, against Licensee, and sums paid by Licensee in connection with its defense, and shall not apply to any consequential damages suffered by Licensee which are not included in the absence aforementioned judgment. Such indemnification shall not apply to any damages sustained by Licensee by reason of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreement; or (c) use of claimed infringement other than the most recent version of the Programs if use of a more recent version would avoid such infringementthose specified above.

Indemnification by Licensor. Licensor shall (i) indemnify, defend, and hold harmless and defend (or at its option settle) any claim or suit against Pumatech, or their officers, directors, agentsLicensee, and employees (the “Indemnified Parties”) arising from or related to any alleged infringement each Affiliate of any Intellectual Property Right by the Programs or use thereof, Licensee and (ii) pay any judgment entered each of their respective parties against any Indemnified Party on such and all liabilities, damages and expense (including reasonable attorneys' fees, costs and expenses) which Licensee may incur or be obligated to pay in any action or 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 information known to it relating thereto, and (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, or in the opinion of Licensor may become, the subject of any claim or suit against Licensee for infringement of any Intellectual Property Rightother person's claimed right to use a trademark in the Territory, including such infringements as may be contained in advertising placed by Licensor, but only where such action or claim results from Licensee's use of the Trademarks in the Territory in accordance with the terms of this Agreement. Licensee shall give Licensor mayprompt written notice of any such claim or action, and thereupon Licensor shall undertake and conduct the defense of any suit so brought. It is understood, however, that if there is a dispute between Licensor and Licensee as to whether the suit was brought as a result of Licensee's failure to use the Trademarks in accordance with this Agreement, Licensee may be required to conduct such defense unless and until it is determined that no such misuse of the Trademarks occurred. In the event appropriate action is not taken by Licensor within thirty (30) days after its receipt of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shallnotice from Licensee, at its option and expense, do one of the following: (1) procure for the Indemnified Parties Licensee shall have the right to use defend such claim or action in its own name, but no settlement or compromise of any such claim or action may be made without the prior written approval of Licensor. In either case, Licensor and distribute the Program or the affected part thereof; (2) replace the Program or affected part Licensee shall keep each other fully advised of all developments and shall cooperate fully with non-infringing programs; or (3) modify the Program or affected part each other and in all respects in connection with any such defense. Such indemnification will be deemed to make it non-infringing. Licensor will have no obligations under this Section apply solely to the extent a claim described therein is based upon (a) the combination, operation, or use amount of the Program with software that was not provided by Licensorjudgment, if such claim would have been avoided any, against Licensee, and sums paid by Licensee in connection with its defense, and will not apply to any consequential damages suffered by Licensee that are not included in the absence aforementioned judgment. Such indemnification will not apply to any damages sustained by Licensee by reason of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreement; or (c) use of claimed infringement other than the most recent version of the Programs if use of a more recent version would avoid such infringement.those specified above. 18.4

Indemnification by Licensor. Licensor shall represents and warrants to Licensee that: (i) indemnifyit has good and legal title to and owns all right title and interest to the marks set forth in Schedule A, hold harmless and defend (or at its option settle) any claim or suit against Pumatech, or their officers, directors, agents, and employees (the “Indemnified Parties”) arising from or related to any alleged infringement of any Intellectual Property Right by the Programs or use thereof, and attached hereto; (ii) pay any judgment entered against any Indemnified Party on such claim when dueit has the right to license the same to Licensee in accordance with the terms and conditions of this Agreement; and, or any settlement thereof. The following procedures shall apply (iii) that to any indemnified claim: (a) Licensor shall have sole control the best of the defense and/or settlement (b) the Indemnified Party must notify Licensor promptly in writing of such claim or suit Licensor's knowledge and give Licensor all information known to it relating theretobelief, and (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, or in the opinion of Licensor may become, the subject of any claim or suit for infringement of any Intellectual Property Right, Licensor may, and in the event of any adjudication that any Program or any part thereof does infringe or if the use of a Program the Licensed Property, set forth in Schedule A, by Licensee will not infringe upon the rights of any other person or any part thereof is enjoined Licensor shall, at its option and expense, do one of the following: (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-infringingentity. Licensor will have no obligations under this Section hereby agrees to the extent indemnify and hold Licensee harmless from claim, suit, loss, damage, cost or expense (including reasonable attorneys' fees) for which it may become liable or may incur or be compelled to pay in or as a result of any suit, action, proceeding or claim described therein is made by a third party against Licensee based upon (a) the combination, operationon infringement, or alleged infringement, of any design, patent, trademark or copyright or claims of unfair competition arising out of Licensee's authorized use of the Program with software that was not provided by Licensed Property set forth in Schedule A. The foregoing notwithstanding, Licensee must give prompt, written notice to Licensor of any suit, action, proceeding or claim for which Licensee intends to seek indemnity from Licensor. Licensee further agrees to provide reasonable, timely cooperation and assistance to Licensor, if such at Licensor's expense, in connection with any suit, action, proceeding or claim would have been avoided in for which Licensee has sought indemnification from Licensor. Licensee may, with Licensor's prior written approval, undertake to conduct the absence defense of such combination, operation;(b) any suit so brought. This Paragraph shall survive the use termination and/or expiration of a Program in a manner not authorized by this Agreement; or (c) use of other than the most recent version of the Programs if use of a more recent version would avoid such infringement.

Indemnification by Licensor. Licensor shall defend, indemnify and hold harmless to the fullest extent permitted by law the Licensee Indemnified Parties and each of them, from and against any and all losses, claims, liabilities, demands, actions, proceedings, judgments of any and all types, including, without limitation, reasonable fees of attorneys, accountants and other experts (collectively, “Losses”), incurred by Licensee Indemnified Parties insofar as they arise out of or are alleged or claimed to arise out of (i) indemnify, hold harmless any activities conducted by Licensor in relation with (i) the Licensed Product including development and defend commercialization activities; (or at its option settleii) Licensors’ enforcement of Licensed Patent Rights in any claim or suit action against Pumatech, or their officers, directors, agents, and employees (the “Indemnified Parties”) arising from or related to any alleged infringement of any Intellectual Property Right a third party that is joined by the Programs or use thereof, Licensee in compliance with Section 8.2.2; and (ii) pay any judgment entered against any Indemnified Party on such claim when duematerial breach by [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, or any settlement thereofMARKED 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. The following procedures shall apply to any indemnified claimLicensor of its obligations under this Agreement, provided, however, that: (a) Licensor shall have sole control not be obligated under this Section 12.1.1 to the extent that the Losses resulted from the negligence or willful misconduct of the defense and/or settlement Licensee, Licensee’s Affiliates, Sub-licensees or Contractors; and (b) Licensee shall have the Indemnified Party must notify Licensor promptly in writing of such claim or suit and give Licensor all information known right to it relating thereto, and (c) the Indemnified Party must reasonably cooperate with Licensor participate 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, or in the opinion of Licensor may become, the subject defense of any claim such claim, complaint, suit, proceeding or suit for infringement cause of any Intellectual Property Right, Licensor may, and action referred to in the event this Section 12.1.1 utilizing attorneys of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shallits choice, at its option and own expense, do one provided, however, that Licensor shall have full authority and control to handle any such claim, complaint, suit, proceeding or cause of the following: (1) procure action, including any settlement or other disposition thereof, 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 which Licensee seeks indemnification under this Section to the extent a claim described therein is based upon (a) the combination, operation, or use of the Program with software that was not provided by Licensor, if such claim would have been avoided in the absence of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreement; or (c) use of other than the most recent version of the Programs if use of a more recent version would avoid such infringement12.1.1.

Indemnification by Licensor. Licensor shall 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 indemnify, defend and hold harmless Licensee, its subsidiaries and defend affiliates, their respective shareholders and the agents, officers, directors and employees of each against and from all claims or suits (or at its option settle) any provided prompt notice of each such claim or suit against Pumatech, or their officers, directors, agents, and employees (which comes to the “Indemnified Parties”attention of Licensee is given to Licensor by Licensee) arising from solely and directly out of the authorized use of the Playboy Properties on or related in connection with the 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 or any alleged infringement other reason(s). Licensor shall have the option to settle or to undertake and conduct the defense of any Intellectual Property Right by the Programs or use thereof, and (ii) pay any judgment entered against any Indemnified Party on such claim when dueor suit, but Licensee shall, upon receipt of notice from Licensor and pursuant to Licensor’s instructions, handle, undertake and conduct the defense of any such claim or suit at Licensor’s expense. If Licensor does not provide such notice to Licensee, Licensee may, through counsel of Licensee’s own choice and at its own expense, participate in any settlement thereof. The following procedures shall apply to any indemnified claim: (a) such claim or suit, but in such event Licensor shall have sole and exclusive control of the defense and/or settlement (b) the Indemnified Party must notify Licensor promptly in writing of over such claim or suit and give Licensor all information known to it relating theretodefense, and (c) the Indemnified Party must reasonably cooperate Licensor’s decisions with Licensor in the respect thereto shall govern and control. Licensee expressly covenants that no discussions by Licensee whatsoever with claimant or litigant, no compromise or 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, or in the opinion of Licensor may become, the subject Licensee of any claim or suit for infringement and no negotiations by Licensee with respect to any compromise or settlement shall be had, made or entered into without the prior written approval of any Intellectual Property Right, Licensor may, and in the event of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shall, at its option and expense, do one of the following: (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 combination, operation, or use of the Program with software that was not provided by Licensor, if such claim would have been avoided in the absence of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreement; or (c) use of other than the most recent version of the Programs if use of a more recent version would avoid such infringement.

Indemnification by Licensor. Licensor shall LICENSOR hereby agrees to defend, indemnify, and hold LICENSEE and its affiliates and their respective shareholders, members, directors, officers, managers, employees, attorneys and agents (collectively referred to as “LICENSEE” for purposes of this section) harmless from and against any claims, suits, losses, damages, demands, injuries and expenses, including without limitation reasonable attorneys’ fees, based on (i) indemnify, hold harmless and defend (any breach of this Agreement by LICENSOR or at any of its option settle) any claim or suit against Pumatech, or their officers, directorsservants, 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 employees (iii) allegations that the “Indemnified Parties”) use of the LICENSED XXXX by LICENSEE in accordance with this Agreement infringes or otherwise violates the rights of any third party in the TERRITORY; provided, however, that the foregoing indemnity shall not include allegations arising from or related out of 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 alleged infringement of any Intellectual Property Right by third party rights. LICENSEE shall give LICENSOR prompt written notice of any such claims or suits and LICENSOR shall defend the Programs same, at its own expense, through counsel of its choice subject to LICENSEE’s approval, which shall not be unreasonably withheld. LICENSEE shall comply with any settlement or use thereof, and (ii) pay court order arising from any judgment entered against any Indemnified Party on such claim when dueor suit, or including any settlement thereofor order that requires a change to LICENSEE’s use of the LICENSED XXXX. The following procedures shall apply to any indemnified claim: (a) Licensor LICENSEE shall have sole control the right to retain its own counsel at its own expense but shall not have the right to settle any such action. LICENSOR shall have the right to terminate LICENSEE’s right to use the LICENSED XXXX in any portion of the defense and/or settlement (b) the Indemnified Party must notify Licensor promptly TERRITORY without further liability to LICENSEE if LICENSOR determines, in writing of its sole discretion, that it cannot prevail over any such claim or suit and give Licensor despite exercising commercially reasonable efforts to do so. Notwithstanding the foregoing, in no event will the foregoing indemnification provided by LICENSOR for all information known to it relating thereto, and (c) claims or suits exceed the Indemnified Party must reasonably cooperate with Licensor in amount of the settlement and/or defenseroyalties paid by LICENSEE under this Agreement. The Indemnified Party shall be reimbursed indemnity provided for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Licensor. If all or any part of the Programs are, or in the opinion of Licensor may become, the subject of any claim or suit for infringement of any Intellectual Property Right, Licensor may, and in the event of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shall, at its option and expense, do one of the following: (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 shall survive the extent a claim described therein is based upon (a) the combination, operation, expiration or use termination of the Program with software that was not provided by Licensor, if such claim would have been avoided in the absence of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreement; or (c) use of other than the most recent version of the Programs if use of a more recent version would avoid such infringement.

Indemnification by Licensor. Licensor shall (i) indemnify, defend, and hold harmless and defend (or at its option settle) any claim or suit against Pumatech, or their officers, directors, agentsLicensee, and employees (the “Indemnified Parties”) arising from or related to any alleged infringement each Affiliate of any Intellectual Property Right by the Programs or use thereof, Licensee and (ii) pay any judgment entered each of their respective parties against any Indemnified Party on such and all liabilities, damages and expense (including reasonable attorneys' fees, costs and expenses) which Licensee may incur or be obligated to pay in any action or 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 information known to it relating thereto, and (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, or in the opinion of Licensor may become, the subject of any claim or suit against Licensee for infringement of any Intellectual Property Rightother person's claimed right to use a trademark in the Territory, including such infringements as may be contained in advertising placed by Licensor, but only where such action or claim results from Licensee's use of the Trademarks in the Territory in accordance with the terms of this Agreement. Licensee shall give Licensor mayprompt written notice of any such claim or action, and thereupon Licensor shall undertake and conduct the defense of any suit so brought. It is understood, however, that if there is a dispute between Licensor and Licensee as to whether the suit was brought as a result of Licensee's failure to use the Trademarks in accordance with this Agreement, Licensee may be required to conduct such defense unless and until it is determined that no such misuse of the Trademarks occurred. In the event appropriate action is not taken by Licensor within thirty (30) days after its receipt of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shallnotice from Licensee, at its option and expense, do one of the following: (1) procure for the Indemnified Parties Licensee shall have the right to use defend such claim or action in its own name, but no settlement or compromise of any such claim or action may be made without the prior written approval of Licensor. In either case, Licensor and distribute the Program or the affected part thereof; (2) replace the Program or affected part Licensee shall keep each other fully advised of all developments and shall cooperate fully with non-infringing programs; or (3) modify the Program or affected part each other and in all respects in connection with any such defense. Such indemnification will be deemed to make it non-infringing. Licensor will have no obligations under this Section apply solely to the extent a claim described therein is based upon (a) the combination, operation, or use amount of the Program with software that was not provided by Licensorjudgment, if such claim would have been avoided any, against Licensee, and sums paid by Licensee in connection with its defense, and will not apply to any consequential damages suffered by Licensee that are not included in the absence aforementioned judgment. Such indemnification will not apply to any damages sustained by Licensee by reason of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreement; or (c) use of claimed infringement other than the most recent version of the Programs if use of a more recent version would avoid such infringementthose specified above.

Indemnification by Licensor. Licensor shall indemnify and hold harmless Licensee, its affiliates and their directors, officers, employees, and agents against any and all judgments, damages, costs or losses of any kind (including reasonable attorneys’ and experts’ fees) as a result of any claim, action or proceeding that arises out of or relates to a material breach by Licensor of its representations or warranties under this Agreement; provided however, that (i) indemnify, hold harmless and defend (or at its option settle) any claim or suit against Pumatech, or their officers, directors, agents, and employees (the “Indemnified Parties”) arising from or related to any alleged infringement Licensee notifies Licensor promptly of any Intellectual Property Right by the Programs such claim, action or use thereof, and proceeding; (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) Licensee grants Licensor shall have sole control of the its defense and/or settlement (b) the Indemnified Party must notify Licensor promptly in writing of such claim or suit and give Licensor all information known to it relating thereto, settlement; and (ciii) the Indemnified Party must reasonably cooperate Licensee cooperates with Licensor in the settlement and/or defensedefense thereof. The Indemnified Party Licensor shall be reimbursed periodically reimburse Licensee for all its reasonable out-of-pocket expenses incurred in providing any cooperation requested by Licensorunder this Subsection 12.2. If all or any part of Licensee shall have the Programs are, or in the opinion of Licensor may become, the subject of any claim or suit for infringement of any Intellectual Property Right, Licensor may, and in the event of any adjudication that any Program or any part thereof does infringe or if the use of a Program or any part thereof is enjoined Licensor shallright, at its option and own expense, do one to participate in the defense of the following: (1) procure for the Indemnified Parties the any claim, action or proceeding against which it is indemnified hereunder; provided, however, it shall have no right to use and distribute control the Program defense, consent to judgment, or agree to settle any such claim, action, or proceeding without the affected part thereof; written consent of Licensor without waiving the indemnity hereunder. Licensor, in the defense of any such claim, 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 (2i) replace does not include, as an unconditional term, the Program or affected part with non-infringing programs; grant by the claimant to Licensee of a release of all liabilities in respect of such claims or (3ii) modify otherwise adversely affects the Program or affected part rights of Licensee. The foregoing notwithstanding, Licensor shall not be required to make it non-infringing. Licensor will have no obligations under this Section indemnify Licensee to the extent any claims, actions or proceedings arise out of or relate to (i) a claim described therein is based upon (a) the combination, operationbreach by Licensee of its representations or warranties made herein, or use (ii) Licensee’s gross negligence or willful misconduct. This provision shall survive the termination or expiration of the Program with software that was not provided by Licensor, if such claim would have been avoided in the absence of such combination, operation;(b) the use of a Program in a manner not authorized by this Agreement; or (c) use of other than the most recent version of the Programs if use of a more recent version would avoid such infringement.