Infringement Indemnification
a.ADIC will defend, indemnify, save, and hold Licensee harmless against claims, demands, liability, damages, and judgments which are finally adjudicated, including attorney's fees and court costs arising or resulting directly from any claim, suit or litigation brought against Licensee based on infringement of any U. S. patent or copyright by the Software (except that indemnification does not apply to any third party software which may be embedded therein), provided, however, that such indemnity is conditioned upon receipt by ADIC of prompt notification in writing of such claim and that Licensee provides continuing information and reasonable assistance for the defense and settlement of any claim. ADIC will retain attorneys, as deemed necessary, and conduct the defense and settlement of such claim. ADIC may, at its own expense and at its option, either (1) procure for Licensee the right to continue using the Software, or
(2) replace the same with
b.Upon failure of (1), (2) or (3) above, despite the reasonable efforts of ADIC, Licensee may terminate this License only with respect to the Software adversely affected by such action or claim. Upon such termination ADIC will promptly refund to Licensee any License Fees paid and other payments made for the adversely affected Software. ADIC may deduct from the refund a fair market value for usage, which will be a pro rata share of the License charge for the time period used, assuming a three (3) year straight line depreciation with no salvage value.
c.Notwithstanding the foregoing ADIC has no liability if any such claim or suit is based upon or arises out of: 1) alterations of the Software by Licensee or any third party; 2) Licensee's failure to install updated Software provided by ADIC for avoiding such infringement; 3) use of the Software in combination with apparatus or software not furnished by ADIC; 4) use of the Software in a manner for which it was neither designed nor contemplated; 5) third party software embedded in the Software; 6) Software modified by ADIC for Licensee in accordance with Licensee's specifications or requests; or 7) a patent, trademark or copyright in which Licensee or any of its affiliates or subsidiaries has a direct or indirect interest by license or otherwise.
Term and Termination
a.Term. The term of this License is perpetual, unless terminated by ADIC as provided herein.
b.Termination. This License commences on the Effective Date and will continue in perpetuity unless Licensee fails to comply with any of the material conditions of this License. ADIC may, after allowing Licensee a reasonable time to cure its default, terminate this License upon written notice to the Licensee. Within thirty (30) days after termination of this License, Licensee will certify, in writing, to ADIC, that Licensee has discontinued the use of all Software; and either destroyed or, at ADIC’s election, returned to ADIC the original and all copies of the Software and Documentation in any form maintained by Licensee.
c.Termination for Cause. A violation of any provision of Paragraph 3. above will be deemed a material breach and the basis for immediate termination of this License.
d.Termination upon Insolvency. This License may be terminated by ADIC if the Licensee (i) terminates or indefinitely suspends its business; (ii) becomes subject to any bankruptcy or insolvency proceeding under governmental statute; or (iii) becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority.
e.Remedies upon Termination. If this License is terminated by ADIC, ADIC will have the right to take immediate possession of the Software, Documentation, and all copies wherever located, without demand or notice. Termination of this License is in addition to and not in lieu of any equitable or legal remedies available to ADIC.
vi | Advanced Digital Information Corporation Software Licenses Agreement |