Common use of Infringement Claims Clause in Contracts

Infringement Claims. Vendor shall defend, indemnify and hold harmless BTE from and against any and all claims, suits, liabilities, expenses, attorney’s fees or damages (collectively “Claims”) for any alleged or actual infringement or violation of any third party’s copyright, patent, trade secret, trademark or other intellectual property right arising in connection with this Agreement and any act or omission hereunder. Vendor’s obligations hereunder are conditioned upon: (i) BTE giving Vendor prompt written notice of all Claims; (ii) Vendor being given full authority to assume the sole defense thereof through its own counsel and to compromise or settle any suits so far as this may be done without prejudice to the right of BTE to continue the use of the alleged infringing system, method, apparatus, proprietary information, work or xxxx; and (iii) BTE cooperating fully with Vendor to facilitate defense or settlement of such Claim. In any such suit, if the use of the alleged infringing intellectual property is held to constitute an infringement and is enjoined, or if in light of any Claim Vendor deems it advisable to do so and can do so without, in BTE’s reasonable opinion, impairing or adversely affecting the Equipment or BTE’s use thereof, Vendor may at Vendor’s sole option and expense: (i) procure the right to continue the use of the same for BTE; or (ii) replace or modify the same to be free of the infringement claim. Any settlement of any such Claim that imposes any liability or limitation on BTE shall not be entered into without the prior written consent of BTE. Should BTE enter into settlement of any such Claim without Vendor as a signatory to the settlement and Vendor is not in breach of its obligations, BTE waives any claims that it may have to Vendor for contribution to the settlement and/or defense costs.

Infringement Claims. Vendor shall defend, indemnify and hold harmless BTE from and CUSI will defend at its own expense any action against Licensee brought by a third party to the extent that the action is based upon a claim that the CWP or the CWP Services infringes any and all claims, suits, liabilities, expenses, attorney’s fees valid United States patents or damages (collectively “Claims”) for any alleged copyrights or actual infringement or violation misappropriates any trade secrets of any a third party’s copyright, patent, trade secret, trademark and CUSI will pay those costs and damages finally awarded against Licensee in any such action that are specifically attributable to such claim or other intellectual property right arising those costs and damages agreed to in connection with this Agreement a monetary settlement of such action. The foregoing obligations are conditioned on Licensee: (1) notifying CUSI promptly in writing of such action; (2) giving CUSI sole control of the defense thereof and any act related settlement negotiations; and (3) cooperating and, at CUSI’s request and expense, assisting in such defense. If the CWP becomes, or omission hereunderin CUSI’s opinion is likely to become, the subject of an infringement claim, CUSI may, at its option and expense, either: (a) procure for Licensee the right to continue using the CWP Services; (b) replace or modify the CWP Services so that it becomes non-infringing; or (c) accept return of the CWP Services, terminate this Agreement, in whole or in part, as appropriate, upon written notice to Licensee and refund to Licensee the Fees paid for such CWP Services upon such termination, computed according to a thirty- six (36) month straight-line amortization schedule beginning on the Effective Date. Vendor’s obligations hereunder are conditioned Notwithstanding the foregoing, CUSI will have no obligation under this Section 8.1 or otherwise with respect to any infringement claim based upon: (i) BTE giving Vendor prompt written notice any use of all Claimsthe CWP Services not in accordance with this Agreement, including without limitation the Documentation; (ii) Vendor being given full authority to assume the sole defense thereof through its own counsel and to compromise or settle any suits so far as this may be done without prejudice to the right of BTE to continue the use of the alleged infringing systemCWP Services in combination with products, methodequipment, apparatussoftware, proprietary information, work or xxxxdata not supplied by CUSI; and (iii) BTE cooperating fully with Vendor to facilitate defense or settlement of such Claim. In any such suit, if the use of the alleged infringing intellectual property is held to constitute an infringement and is enjoined, or if in light of any Claim Vendor deems it advisable to do so and can do so without, in BTE’s reasonable opinion, impairing or adversely affecting the Equipment or BTE’s use thereof, Vendor may at Vendor’s sole option and expense: (i) procure the right to continue the use release of the same for BTECWP Services other than the most current release made available to Licensee; or (iiiv) replace or modify the same to be free any modification of the infringement claimCWP Services by any person other than CUSI or its authorized agents or subcontractors. Any settlement of any such Claim that imposes any liability or limitation on BTE shall not be entered into without the prior written consent of BTE. Should BTE enter into settlement of any such Claim without Vendor as a signatory to the settlement and Vendor is not in breach of its obligations, BTE waives any claims that it may have to Vendor for contribution to the settlement and/or defense costsTHIS SECTION 10.1 STATES CUSI’S ENTIRE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT.

Infringement Claims. Vendor shall defend, indemnify and hold harmless BTE from and against With respect to any and all claimsclaims instituted by Third Parties for patent infringement involving the manufacture, suitsuse, liabilitiesoffer for sale or sale of an Inspire Licensed Product in the Field in the Territory during the Term, expensesInspire shall promptly notify InSite of such claim and the Parties shall discuss in good faith such infringement and determine the best course of action. If the Parties cannot agree on the best course of action after such good faith discussions and Inspire in good faith believes that the claim is significant and adverse to the manufacture, attorney’s fees use, offer for sale or damages sale of an Inspire Licensed Product in the Field in the Territory during the Term, then Inspire may proceed with what it deems to be the best course of action in its good faith judgment under the terms of this provision (collectively either this course of action or the agreed upon course of action will be referred to herein as “ClaimsCourse of Action”) ). Except for any alleged or actual infringement or violation such claims for which InSite is obligated to indemnify Inspire under Section 9.2, Inspire shall have the right, but not be obligated, at its sole discretion, on its own behalf, to pursue any Course of Action. InSite agrees to be joined as a party if necessary to pursue any Course of Action and shall provide all reasonable cooperation, including any necessary use of its name, required for such Course of Action. Inspire shall have sole control of any third party’s copyrightsuch Course of Action, patentincluding without limitation any associated settlement or compromise; provided, trade secrethowever, trademark or other intellectual property right arising in connection with this Agreement and any act or omission hereunder. Vendor’s obligations hereunder are conditioned upon: that (i) BTE giving Vendor prompt written notice Inspire shall keep InSite informed and consult with InSite with respect to any such Course of all Claims; Action and (ii) Vendor being given full authority to assume the sole defense thereof through its own counsel and to Inspire shall not settle or compromise or settle any suits so far as this may be done without prejudice to the right of BTE to continue the use of the alleged infringing system, method, apparatus, proprietary information, work or xxxx; and (iii) BTE cooperating fully with Vendor to facilitate defense or settlement of such Claim. In any such suit, if action or proceeding or enter into any agreement or consent order for the use of the alleged infringing intellectual property is held to constitute an infringement and is enjoined, settlement or if in light of any Claim Vendor deems it advisable to do so and can do so without, in BTE’s reasonable opinion, impairing or adversely affecting the Equipment or BTE’s use thereof, Vendor may at Vendor’s sole option and expense: (i) procure the right to continue the use of the same for BTE; or (ii) replace or modify the same to be free of the infringement claim. Any settlement of any such Claim that imposes any liability or limitation on BTE shall not be entered into compromise thereof without the prior written consent of BTE. Should BTE enter into settlement of any such Claim without Vendor as a signatory to the settlement and Vendor is InSite, which consent shall not in breach of its obligations, BTE waives any claims that it may have to Vendor for contribution to the settlement and/or defense costsbe unreasonably withheld.

Infringement Claims. Vendor shall defend, indemnify and hold harmless BTE from and CUSI will defend at its own expense any action against Licensee brought by a third party to the extent that the action is based upon a claim that MMRS infringes any and all claims, suits, liabilities, expenses, attorney’s fees valid United States patents or damages (collectively “Claims”) for any alleged copyrights or actual infringement or violation misappropriates any trade secrets of any a third party’s copyright, patent, trade secret, trademark and CUSI will pay those costs and damages finally awarded against Licensee in any such action that are specifically attributable to such claim or other intellectual property right arising those costs and damages agreed to in connection with this Agreement a monetary settlement of such action. The foregoing obligations are conditioned on Licensee: (1) notifying CUSI promptly in writing of such action; (2) giving CUSI sole control of the defense thereof and any act related settlement negotiations; and (3) cooperating and, at XXXX’s request and expense, assisting in such defense. If MMRS becomes, or omission hereunderin CUSI’s opinion is likely to become, the subject of an infringement claim, CUSI may, at its option and expense, either: (a) procure for Licensee the right to continue using MMRS; (b) replace or modify MMRS so that it becomes non-infringing; or (c) accept return of MMRS, terminate this Agreement, in whole or in part, as appropriate, upon written notice to Licensee and refund to Licensee the Fees paid for MMRS upon such termination, computed according to a thirty-six (36) month straight-line amortization schedule beginning on the Effective Date. Vendor’s obligations hereunder are conditioned Notwithstanding the foregoing, CUSI will have no obligation under this Section 7.1 or otherwise with respect to any infringement claim based upon: (i) BTE giving Vendor prompt written notice any use of all ClaimsMMRS not in accordance with this Agreement, including without limitation the Documentation; (ii) Vendor being given full authority to assume the sole defense thereof through its own counsel and to compromise or settle any suits so far as this may be done without prejudice to the right of BTE to continue the use of the alleged infringing systemMMRS in combination with products, methodequipment, apparatussoftware, proprietary information, work or xxxxdata not supplied by CUSI; and (iii) BTE cooperating fully with Vendor to facilitate defense or settlement of such Claim. In any such suit, if the use of any release of MMRS other than the alleged infringing intellectual property is held most current release made available to constitute an infringement and is enjoined, or if in light of any Claim Vendor deems it advisable to do so and can do so without, in BTE’s reasonable opinion, impairing or adversely affecting the Equipment or BTE’s use thereof, Vendor may at Vendor’s sole option and expense: (i) procure the right to continue the use of the same for BTELicensee; or (iiiv) replace any modification of MMRS by any person other than CUSI or modify the same to be free of the infringement claimits authorized agents or subcontractors. Any settlement of any such Claim that imposes any liability or limitation on BTE shall not be entered into without the prior written consent of BTE. Should BTE enter into settlement of any such Claim without Vendor as a signatory to the settlement and Vendor is not in breach of its obligations, BTE waives any claims that it may have to Vendor for contribution to the settlement and/or defense costsTHIS SECTION 7.1 STATES CUSI’S ENTIRE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT.

Infringement Claims. Vendor shall defendIn connection with Licenses granted hereunder, AccessAgility, at its sole expense, agrees to defend and indemnify and hold harmless BTE from and Customer against any third party claim that Xxxxxxxx’s use of the Software, as delivered by AccessAgility to Customer and all claims, suits, liabilities, expenses, attorney’s fees or damages (collectively “Claims”) for any alleged or actual infringement or violation of any third party’s copyright, patent, trade secret, trademark or other intellectual property right arising used in connection accordance with this Agreement XXXX and any act the Documentation, directly infringes a third party copyright or omission hereunder. Vendor’s obligations hereunder are conditioned uponissued patent or directly misappropriates a trade secret (an “Infringement Claim”), provided that: (i) BTE giving Vendor prompt written notice Customer notifies AccessAgility in writing within thirty (30) days of all Claimsthe Infringement Claim; (ii) Vendor being given full authority to assume the AccessAgility has sole defense thereof through its own counsel and to compromise or settle any suits so far as this may be done without prejudice to the right of BTE to continue the use control of the alleged infringing systemdefense and all related settlement negotiations, method, apparatus, proprietary information, work or xxxxas long as such settlement shall not include a financial obligation for Customer; and (iii) BTE cooperating fully Customer provides AccessAgility with Vendor the information, assistance and authority to facilitate defense or settlement of such Claimenable AccessAgility to perform AccessAgility’s obligations under this Section. In any action based on an Infringement Claim, AccessAgility, at its option its own expense, may: (1) procure the right for Customer to continue using the Software in accordance with the provisions of this XXXX; (2) make such suitalterations, modifications or adjustments to the Software so that the infringing Software becomes non-infringing without incurring a material diminution in performance or function; (3) replace the Software with a non-infringing substantially similar substitute; or (4) if (1), (2), or (3) cannot be achieved after the exercise of commercially reasonable efforts, either party may terminate the License. If a Subscription License is terminated pursuant to this Section, AccessAgility shall refund to Customer the unused remainder of any Subscription License fees and Other Fees prepaid by Customer and received by AccessAgility. If a Perpetual License is terminated pursuant to this Section, AccessAgility shall refund to Customer the amortized remainder of the Perpetual License fees (based on a three (3) year depreciation period from the Delivery Date) and the unused remainder of any prepaid Other Fees received by AccessAgility. If a Trial License is terminated pursuant to this Section, no payment shall be due Customer. In connection with any termination pursuant to this Section, Customer shall comply with all post-termination requirements set forth in this XXXX. AccessAgility shall have no liability or obligations for an infringement claim pursuant to this Section to the extent that it results from: (a) modifications to the Software made by a party other than AccessAgility or under the direct control of AccessAgility; (b) the combination, operation or use of the Software with non-AccessAgility equipment, devices, software or data, unless the claim would not have occurred but for the use of the alleged infringing intellectual property is held to constitute an infringement and is enjoinedSoftware in the combination, operation or if in light of any Claim Vendor deems it advisable to do so and can do so without, in BTE’s reasonable opinion, impairing or adversely affecting the Equipment or BTE’s use thereof, Vendor may at Vendor’s sole option and expense: use; (ic) procure the right to continue the use of the same for BTE; Software outside the scope of this XXXX or (ii) replace or modify the same to be free in contravention of the infringement claim. Any settlement Documentation; (d) AccessAgility’s use of any such Claim that imposes any liability designs, plans, instructions, specifications, diagrams or limitation on BTE shall not be entered into without the prior written consent of BTE. Should BTE enter into settlement of any such Claim without Vendor as a signatory to the settlement and Vendor is not in breach of its obligationslike, BTE waives any claims that it may have to Vendor for contribution to the settlement and/or defense costs.provided by Customer, if any; or

Infringement Claims. Vendor Principal shall defend, indemnify indemnify, and hold Agent, its Affiliates, Channel Partners and End Users harmless BTE from and against any and all third party liabilities, claims, suitsdemands, liabilitiessuits (and any costs, expensesjudgments and settlement amounts associated therewith) that the use or disposition of a Pivotal Offerings misappropriates a trade secret or infringes a patent, attorney’s fees or damages (collectively “Claims”) for any alleged or actual infringement or violation of any third party’s copyright, patent, trade secret, or trademark in any of the jurisdictions within which the Pivotal Offerings were sold. Principal shall promptly engage counsel qualified in the subject matter of such dispute upon receiving notice. Principal shall also pay all damages awarded or other intellectual property right arising in connection with this Agreement and any act or omission hereunderagreed to under a settlement made by Principal and/or by a court of final appeal attributable to such claim. Vendor’s obligations hereunder are conditioned upon: Agent will provide Principal (i) BTE giving Vendor prompt written notice in writing of all Claimssuch claim (but late notice shall not void Principal’s obligations in this Section unless the lateness itself prejudiced Principal’s ability to fulfill its obligations); (ii) Vendor being given full authority to assume sole control over the sole defense thereof through its own counsel and to compromise or settle any suits so far as this may be done without prejudice to the right of BTE to continue the use of the alleged infringing system, method, apparatus, proprietary information, work or xxxxsettlement thereof; and (iii) BTE cooperating fully with Vendor reasonable cooperation from Agent, as applicable, at Principal’s expense in response to facilitate defense a Principal request for assistance. When settling or settlement compromising any claim, Principal shall not, without Agent’s written approval, make any admission of facts that expose Agent to the imposition of punitive damages or other claims that are not covered by this indemnification. Should any Pivotal Offering become, or in Principal’s opinion be likely to become, the subject of such Claim. In any such suita claim, if the use of the alleged infringing intellectual property is held to constitute an infringement and is enjoinedPrincipal shall, or if in light of any Claim Vendor deems it advisable to do so and can do so without, in BTE’s reasonable opinion, impairing or adversely affecting the Equipment or BTE’s use thereof, Vendor may at Vendor’s sole its option and expense: , (ia) procure for Agent, Channel Partners and End Users the right to continue the make continued use of the same for BTEthereof in accordance with this Agreement; or (iib) replace or modify the same to be free affected Pivotal Offering(s) so that it becomes non-infringing but with substantially equivalent functionality and performance; or (c) if neither (a) nor (b) are reasonably available, accept return of the infringement claimaffected Pivotal Offering(s) and upon receipt thereof refund to Agent the price paid therefore by Agent to Principal. Any settlement of any such Claim that imposes any liability or limitation on BTE shall not be entered into without the prior written consent of BTE. Should BTE enter into settlement of any such Claim without Vendor as a signatory to the settlement and Vendor is not in breach of its obligations, BTE waives any claims that it may have to Vendor for contribution to the settlement and/or defense costsTHIS SECTION 10.2 STATES THE ENTIRE LIABILITY OF PRINCIPAL AND AGENT’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT CLAIMS.

Infringement Claims. Vendor shall defendIn connection with Licenses granted hereunder, AccessAgility, at its sole expense, agrees to defend and indemnify and hold harmless BTE from and Customer against any third party claim that Customer’s use of the Software, as delivered by AccessAgility to Customer and all claims, suits, liabilities, expenses, attorney’s fees or damages (collectively “Claims”) for any alleged or actual infringement or violation of any third party’s copyright, patent, trade secret, trademark or other intellectual property right arising used in connection accordance with this Agreement XXXX and any act the Documentation, directly infringes a third party copyright or omission hereunder. Vendor’s obligations hereunder are conditioned uponissued patent or directly misappropriates a trade secret (an “Infringement Claim”), provided that: (i) BTE giving Vendor prompt written notice Customer notifies AccessAgility in writing within thirty (30) days of all Claimsthe Infringement Claim; (ii) Vendor being given full authority to assume the AccessAgility has sole defense thereof through its own counsel and to compromise or settle any suits so far as this may be done without prejudice to the right of BTE to continue the use control of the alleged infringing systemdefense and all related settlement negotiations, method, apparatus, proprietary information, work or xxxxas long as such settlement shall not include a financial obligation for Customer; and (iii) BTE cooperating fully Customer provides AccessAgility with Vendor the information, assistance and authority to facilitate defense or settlement of such Claimenable AccessAgility to perform AccessAgility’s obligations under this Section. In any action based on an Infringement Claim, AccessAgility, at its option its own expense, may: (1) procure the right for Customer to continue using the Software in accordance with the provisions of this XXXX; (2) make such suitalterations, modifications or adjustments to the Software so that the infringing Software becomes non-infringing without incurring a material diminution in performance or function; (3) replace the Software with a non-infringing substantially similar substitute; or (4) if (1), (2), or (3) cannot be achieved after the exercise of commercially reasonable efforts, either party may terminate the License. If a Subscription License is terminated pursuant to this Section, AccessAgility shall refund to Customer the unused remainder of any Subscription License fees and Other Fees prepaid by Customer and received by AccessAgility. If a Perpetual License is terminated pursuant to this Section, AccessAgility shall refund to Customer the amortized remainder of the Perpetual License fees (based on a three (3) year depreciation period from the Delivery Date) and the unused remainder of any prepaid Other Fees received by AccessAgility. If a Trial License is terminated pursuant to this Section, no payment shall be due Customer. In connection with any termination pursuant to this Section, Customer shall comply with all post-termination requirements set forth in this XXXX. AccessAgility shall have no liability or obligations for an infringement claim pursuant to this Section to the extent that it results from: (a) modifications to the Software made by a party other than AccessAgility or under the direct control of AccessAgility; (b) the combination, operation or use of the Software with non-AccessAgility equipment, devices, software or data, unless the claim would not have occurred but for the use of the alleged infringing intellectual property is held to constitute an infringement and is enjoinedSoftware in the combination, operation or if in light of any Claim Vendor deems it advisable to do so and can do so without, in BTE’s reasonable opinion, impairing or adversely affecting the Equipment or BTE’s use thereof, Vendor may at Vendor’s sole option and expense: use; (ic) procure the right to continue the use of the same for BTE; Software outside the scope of this XXXX or (ii) replace or modify the same to be free in contravention of the infringement claim. Any settlement Documentation; (d) AccessAgility’s use of any such Claim that imposes any liability designs, plans, instructions, specifications, diagrams or limitation on BTE shall not be entered into without the prior written consent of BTE. Should BTE enter into settlement of any such Claim without Vendor as a signatory to the settlement and Vendor is not in breach of its obligationslike, BTE waives any claims that it may have to Vendor for contribution to the settlement and/or defense costs.provided by Customer, if any; or

Infringement Claims. Vendor shall defendIn connection with Licenses granted hereunder, AirWatch, at its sole expense, agrees to defend and indemnify and hold harmless BTE from and Customer against any third party claim that Customer’s use of the Software, as delivered by AirWatch to Customer and all claims, suits, liabilities, expenses, attorney’s fees or damages (collectively “Claims”) for any alleged or actual infringement or violation of any third party’s copyright, patent, trade secret, trademark or other intellectual property right arising used in connection accordance with this Agreement XXXX and any act the Documentation, directly infringes a third party copyright or omission hereunder. Vendor’s obligations hereunder are conditioned uponissued patent or directly misappropriates a trade secret (an “Infringement Claim”), provided that: (i) BTE giving Vendor prompt written notice Customer notifies AirWatch in writing within thirty (30) days of all Claimsthe Infringement Claim; (ii) Vendor being given full authority to assume the AirWatch has sole defense thereof through its own counsel and to compromise or settle any suits so far as this may be done without prejudice to the right of BTE to continue the use control of the alleged infringing systemdefense and all related settlement negotiations, method, apparatus, proprietary information, work or xxxxas long as such settlement shall not include a financial obligation for Customer; and (iii) BTE cooperating fully Customer provides AirWatch with Vendor the information, assistance and authority to facilitate defense or settlement of such Claimenable AirWatch to perform AirWatch’s obligations under this Section. In any action based on an Infringement Claim, AirWatch, at its option its own expense, may: (1) procure the right for Customer to continue using the Software in accordance with the provisions of this XXXX; (2) make such suitalterations, modifications or adjustments to the Software so that the infringing Software becomes non-infringing without incurring a material diminution in performance or function; (3) replace the Software with a non-infringing substantially similar substitute; or (4) if (1), (2), or (3) cannot be achieved after the exercise of commercially reasonable efforts, either party may terminate the License. If a Subscription License is terminated pursuant to this Section, AirWatch shall refund to Customer the unused remainder of any Subscription License fees and Other Fees prepaid by Customer and received by AirWatch. If a Perpetual License is terminated pursuant to this Section, AirWatch shall refund to Customer the amortized remainder of the Perpetual License fees (based on a three (3) year depreciation period from the Delivery Date) and the unused remainder of any prepaid Other Fees received by AirWatch. If a Trial License is terminated pursuant to this Section, no payment shall be due Customer. In connection with any termination pursuant to this Section, Customer shall comply with all post-termination requirements set forth in this XXXX. AirWatch shall have no liability or obligations for an infringement claim pursuant to this Section to the extent that it results from: (a) modifications to the Software made by a party other than AirWatch or under the direct control of AirWatch; (b) the combination, operation or use of the Software with non-AirWatch equipment, devices, software or data, unless the claim would not have occurred but for the use of the alleged infringing intellectual property is held to constitute an infringement and is enjoinedSoftware in the combination, operation or if in light of any Claim Vendor deems it advisable to do so and can do so without, in BTE’s reasonable opinion, impairing or adversely affecting the Equipment or BTE’s use thereof, Vendor may at Vendor’s sole option and expense: use; (ic) procure the right to continue the use of the same for BTESoftware outside the scope of this XXXX or in contravention of the Documentation; (d) AirWatch’s use of any designs, plans, instructions, specifications, diagrams or the like, provided by Customer, if any; or (iie) replace or modify Customer’s failure to use all available Enhancements and Updates to the same Software made available to Customer by AirWatch, if the claim would not have occurred but for such failure. Nothing in this provision shall be free of the infringement claim. Any settlement of any such Claim that imposes any liability or construed as a limitation on BTE shall not be entered into without Customer’s ability to retain legal counsel at its own expense to monitor the prior written consent of BTEproceedings. Should BTE enter into settlement of any such Claim without Vendor as a signatory This Section sets forth Customer’s sole and exclusive remedies with respect to the settlement and Vendor is not in breach of its obligations, BTE waives any claims that it may have to Vendor for contribution to the settlement and/or defense costsInfringement Claims.

Infringement Claims. Vendor 6.1 If either party learns that any claim or suit has been made or brought for infringement as a result of Licensee's use of the Licensed Technology in accordance with this Agreement, such party shall defendpromptly notify the other party of the Claim (a "Claim"). If reasonable investigation of such Claim by the parties indicates that the utilization of Licensed Technology by Licensee, indemnify and hold harmless BTE from and against any and all claimsin accordance with this Agreement, suitsdoes not form the basis for such Claim, liabilities, expenses, attorney’s fees then Licensee shall have no obligation or damages (collectively “Claims”) for any alleged or actual infringement or violation of any third party’s copyright, patent, trade secret, trademark or other intellectual property right arising responsibility to Licensor in connection with this Agreement or as a result of the Claim. If, however, the investigation of the Claim reveals that the use by Licensee of the Licensed Technology does form the basis for the Claim, Licensee shall have the first right, but not the obligation, to defend and control, at its expense, the defense of the Claim. Licensor will assist Licensee, without cost to Licensee, in the defense of the Claim by providing information and fact witnesses as needed. Licensor shall have the right to be represented in any proceeding involving the Claim by its own legal counsel, at Licensor's own expense, provided that such legal counsel will act or omission hereunderonly in an advisory capacity. Vendor’s obligations hereunder are conditioned upon: (i) BTE giving Vendor prompt written notice If Licensee initially elects not to defend the Claim, it shall promptly so notify Licensor in writing, and Licensor shall, thereafter, have the right and option, but not the obligation, to defend and control the defense of all Claims; (ii) Vendor being given full authority such suit and may recover from Licensee the costs and expenses of such defense. If Licensor elects to so defend the Claim, Licensee will assist Licensor, without cost to Licensor, in such defense by providing information and fact witnesses as needed. Licensee shall also have the right to be represented in any proceeding involving the Claim by its own legal counsel, at Licensee's expense, provided that such legal counsel will act only in an advisory capacity. If Licensor elects for any reason not to defend the Claim, it shall promptly so notify Licensee in writing, and Licensee shall again have the right and option, but not the obligation to assume and control the defense of such lawsuit. If Licensee so elects to defend the lawsuit, Licensee shall bear the costs of such defense and Licensor shall provide Licensee with assistance, and shall have the right to be represented by counsel, as though Licensee had exercised its first right to assume the sole defense thereof through its own counsel and to compromise or settle any suits so far as this may be done without prejudice to the right of BTE to continue the use of the alleged infringing system, method, apparatus, proprietary information, work or xxxx; and (iii) BTE cooperating fully with Vendor to facilitate defense or settlement of such Claim. In any such suitNo Claim referred to in this paragraph shall be settled without the written consent of Licensor, if the use of the alleged infringing intellectual property is held to constitute an infringement and is enjoined, or if in light of any Claim Vendor deems it advisable to do so and can do so without, in BTE’s reasonable opinion, impairing or adversely affecting the Equipment or BTE’s use thereof, Vendor may at Vendor’s sole option and expense: (i) procure the right to continue the use of the same for BTE; or (ii) replace or modify the same to be free of the infringement claim. Any settlement of any such Claim that imposes any liability or limitation on BTE which consent shall not be entered into without unreasonably withheld or delayed. Any and all costs and expenses incurred by Licensee in connection with the prior written consent defense of BTE. Should BTE enter into settlement a Claim shall offset and reduce, on a dollar for dollar basis, one-half of any such Claim without Vendor as a signatory Royalty then due or which thereafter becomes due and owing to the settlement and Vendor is not in breach of its obligations, BTE waives any claims that it may have to Vendor for contribution to the settlement and/or defense costsLicensor under this Agreement.

Infringement Claims. Vendor (a) In the event that Mucosal or the Company becomes aware of actual or threatened infringement of a Mucosal Patent Right, that party shall defendpromptly notify the other party in writing. The Company shall have the first right, indemnify and hold harmless BTE from and but not the obligation, to bring, at its own expense, an infringement action against any third Person infringing the Mucosal Patent Rights and all claimsto use Mucosal's name in connection therewith and to name Mucosal as a party thereto, suitswithout expense to Mucosal. In the event that the Company has exercised its right to bring an action, liabilitiesthe Company shall be responsible for defending against any counterclaims alleging invalidity or unenforceability of a Mucosal Patent Right, expenses, attorney’s fees or damages (collectively “Claims”) and for any alleged or actual infringement or violation of any third party’s copyright, patent, trade secret, trademark prosecuting the action through to settlement or other intellectual property right arising in connection with this Agreement and any act or omission hereunderfinal disposition. Vendor’s obligations hereunder are conditioned upon: If the Company does not commence a particular infringement action within ninety (i90) BTE giving Vendor prompt written days of receipt of the notice of all Claims; (ii) Vendor being given full authority infringement, then Mucosal, after notifying the Company in writing, shall have the right, but not the obligation, to assume the sole defense thereof through bring such infringement action at its own counsel expense, and at its option to compromise or settle any suits so far join the Company as this may be done a party plaintiff without prejudice expense to the right Company, and Mucosal shall be responsible for defending against any counterclaims alleging invalidity or unenforceability of BTE a Mucosal Patent Right. The party conducting such action shall have full control over its conduct, including settlement thereof subject to continue the use of the alleged infringing system, method, apparatus, proprietary information, work or xxxx; and (iii) BTE cooperating fully with Vendor to facilitate defense or settlement of such ClaimSection 7.1(d). In any event, Mucosal and the Company shall provide reasonable assistance to one another and shall reasonably cooperate in any such suitlitigation at the expense of the requesting party. The Company shall reimburse Mucosal for any out-of-pocket costs it incurs at the Company's request as part of an action brought by the Company irrespective of whether Mucosal shall become a co-party, excluding fees of independent counsel, if any, retained by Mucosal. Mucosal shall reimburse the use Company for any out-of-pocket costs it incurs at Mucosal's request as part of an action brought by Mucosal irrespective of whether the Company shall become a co-party, excluding fees of independent counsel, if any, retained by the Company. Mucosal and the Company shall recover their respective actual out-of-pocket expenses, or equitable proportions thereof, associated with any litigation or settlement thereof from any recovery made by any party. Any excess amount shall be shared [equally] between the Company and Mucosal, provided if the Company brings such action at its own expense, Mucosal's share of the alleged infringing intellectual property is held to constitute an infringement and is enjoined, or if in light excess amount shall not exceed the royalties which would otherwise be due Mucosal for the sales of any Claim Vendor deems it advisable to do so and can do so without, in BTE’s reasonable opinion, impairing or adversely affecting Licensed Products that were the Equipment or BTE’s use thereof, Vendor may at Vendor’s sole option and expense: (i) procure the right to continue the use subject of the same for BTE; litigation had such sales been made by the Company or (ii) replace or modify the same to be free of the infringement claim. Any settlement of any such Claim that imposes any liability or limitation on BTE shall not be entered into without the prior written consent of BTE. Should BTE enter into settlement of any such Claim without Vendor as a signatory to the settlement and Vendor is not in breach of its obligations, BTE waives any claims that it may have to Vendor for contribution to the settlement and/or defense costsAffiliates under this Agreement.