ASHLIN’s Intellectual Property Warranty.
ASHLIN warrants that it has no knowledge that any part of any Deliverable or Service infringes or otherwise makes unauthorized use of any United States copyright, trademark, trade secret, or other proprietary right of any third party.
If any Deliverables are or in ASHLIN’s opinion are likely to become the subject of an infringement or misappropriation claim, ASHLIN may, at its option and expense, either (a) procure for Customer the right to continue using the infringing Deliverable or component thereof; or (b) replace or modify the Deliverable (or component thereof) so that it becomes non-infringing but still functions in substantial accordance with the applicable specifications.
ASHLIN will indemnify, defend and hold CUSTOMER harmless against all actions, proceedings, suits, claims or demands that may be brought or instituted against CUSTOMER by any third party based on or arising out of allegations that CUSTOMER’s use of the Software in accordance with the terms of this Agreement infringes any third party Intellectual Property rights (“Claims”). ASHLIN’s foregoing defense and indemnity obligation shall not extend to claims based on
- unauthorized modification or use of the Software made by CUSTOMER or any third party other than by or with the approval of ASHLIN;
- the combination of the Software with items not supplied by ASHLIN or approved by ASHLIN for use with the Software in the Documentation to the extent such claim would not have arisen but for the combination;
- open-source software components; or
- CUSTOMER’s or End Customer’s use of any release of the Software other than the latest version of the Software that has been commercially available for at least six (6) months prior to the date of assertion of such claim. As a condition to ASHLIN’s indemnity obligation CUSTOMER shall give ASHLIN prompt notice of any Claim, grant ASHLIN sole control of the defense and/or settlement of any Claim (provided that ASHLIN shall not enter into any settlement that admits liability on behalf of CUSTOMER or imposes any obligations on CUSTOMER other than cessation of use of the allegedly infringing item or payment of amounts indemnified hereunder) and provide reasonable assistance as requested by ASHLIN. If the Software or part thereof becomes, or in ASHLIN’s opinion may become, subject to a Claim or CUSTOMER’s use thereof may be otherwise enjoined, ASHLIN may, at its option, either:
- procure for CUSTOMER the right to continue using the Software;
- replace or modify the Software, so that it is non-infringing; or
- if neither of the foregoing alternatives is reasonably practical, terminate this Agreement and refund any sums prepaid for the unexpired Term, if any, upon the return or destruction (and certification of destruction) of the Software. Section 3.3 states ASHLIN’s entire liability and CUSTOMER’s exclusive remedy for infringement.
Customer will indemnify and hold the ASHLIN
parties harmless against all costs, fees, expenses, damages, and liabilities (including legal defense costs) associated with any third-party claim, including any punitive damages, arising from or relating to
- any claim or allegation that the Customer’s Materials or ASHLIN’s licensed use of the Customer’s Materials infringes or violates any third-party rights, constitutes defamation or slander or unfair competition. or violates any law;
- any Services, Deliverables, or other work product from ASHLIN that Customer uses or discloses to others in a manner other than that expressly permitted by this Agreement; or
- this engagement generally. The terms of this paragraph shall apply regardless of the nature of any claim asserted (including those arising from contract law, statutes, regulations, or any form of negligence by Customer, or others whether arising out of tort, strict liability, or otherwise) and whether or not ASHLIN was advised of the possibility of the damage or loss asserted. Such terms shall also continue to apply after any termination of this agreement by either party and during any dispute between the parties.
Customer’s Warranty with Respect to Customer Materials.
The Customer represents and warrants that it has or will obtain all necessary ownership, licenses, and/or permissions to grant ASHLIN the license to the Customer Materials as set forth in Section 2 herein. Customer further represents and warrants that neither the Customer Materials nor the licensed use of the Customer Materials by ASHLIN as set forth in this Agreement shall
- infringe or otherwise violate any third-party U.S. patent, copyright, trademark, trade secret, right of privacy or publicity, or other proprietary rights; or
- violate any federal, state, or local law.