HARDWARE COMPONENT OR COMBINATION THEREOF
(COLLECTIVELY A "VIRUS"), THAT IS DESIGNED TO (A) PERMIT UNAUTHORIZED ACCESS TO
ANY OF THE END-USER'S COMPUTER SYSTEMS; OR (B) DISABLE, DELETE, MODIFY, DAMAGE
OR ERASE SOFTWARE, HARDWARE OR DATA.
THE TERM "VIRUS" IS INTENDED TO INCLUDE,
BUT IS NOT LIMITED TO, COMPONENTS THAT ARE COMMONLY REFERRED TO AS "VIRUSES,"
"BACK DOORS," "TIME BOMBS," "TROJAN HORSES," "WORMS," OR "DROP DEAD DEVICES."
4.12
THE SOFTWARE WAS EITHER (I) DEVELOPED BY LICENSOR; OR
(II) DEVELOPED BY INDEPENDENT CONTRACTORS WHO HAVE ASSIGNED THEIR RIGHTS TO
LICENSOR PURSUANT TO WRITTEN AGREEMENTS.
TO THE BEST OF LICENSOR'S KNOWLEDGE,
THE SOFTWARE DOES NOT CONTAIN ANY PROGRAMMING CODE, DOCUMENTATION OR OTHER
MATERIALS OR DEVELOPMENT ENVIRONMENTS THAT EMBODY INTELLECTUAL PROPERTY RIGHTS
OF ANY PERSON OTHER THAN LICENSOR, EXCEPT FOR SUCH MATERIALS OR DEVELOPMENT
ENVIRONMENTS OBTAINED BY LICENSOR FROM OTHER PERSONS WHO MAKE SUCH MATERIALS OR
DEVELOPMENT ENVIRONMENTS GENERALLY AVAILABLE TO ALL INTERESTED PURCHASERS OR
END-USERS ON STANDARD COMMERCIAL TERMS WITHOUT LIMITATIONS ON USE, MODIFICATIONS
OR COMMERCIALIZATION.
LICENSOR AGREES TO NOTIFY LICENSEE PROMPTLY OF THE
CIRCUMSTANCES SURROUNDING ANY UNAUTHORIZED POSSESSION, USE OR KNOWLEDGE OF ANY
PART OF THE SOFTWARE OR PHYSICAL EMBODIMENTS THEREOF, THE DOCUMENTATION OR OTHER
INFORMATION LICENSED TO LICENSEE PURSUANT TO THIS AGREEMENT.
ARTICLE V
INDEMNIFICATION
5.1
LICENSOR AGREES TO INDEMNIFY AND DEFEND LICENSEE AND ITS
AFFILIATES (AS WELL AS LICENSEE'S AND SUCH AFFILIATES' RESPECTIVE DIRECTORS,
OFFICERS, AGENTS AND EMPLOYEES) (EACH AN "INDEMNIFIED PARTY" AND COLLECTIVELY
THE "INDEMNIFIED PARTIES") AGAINST, AND AGREES TO HOLD THEM HARMLESS FROM, ANY
LOSSES INCURRED OR SUFFERED BY THE LICENSEE RELATING TO OR ARISING OUT OF ANY OF
THE FOLLOWING:
(A)
ANY BREACH OF OR INACCURACY IN ANY REPRESENTATION OR WARRANTY MADE
BY LICENSOR PURSUANT TO THIS AGREEMENT OR ANY CERTIFICATE, DOCUMENT, WRITING OR
INSTRUMENT DELIVERED BY LICENSOR PURSUANT TO THIS AGREEMENT;
(B)
ANY BREACH OF OR FAILURE BY LICENSOR TO PERFORM ANY COVENANT OR
OBLIGATION OF LICENSOR SET OUT IN THIS AGREEMENT; AND
(C)
ANY ALLEGED, CONTINGENT OR ABSOLUTE DEBT, CLAIM, OBLIGATION OR
OTHER LIABILITY OF LICENSOR.
5.2
THE INDEMNIFIED PARTY SHALL GIVE PROMPT NOTICE TO LICENSOR, IN
ACCORDANCE WITH THE TERMS OF SECTION 6.2, OF THE ASSERTION OF ANY CLAIM, OR THE
COMMENCEMENT OF ANY SUIT, ACTION OR PROCEEDING IN RESPECT OF WHICH INDEMNITY MAY
BE SOUGHT HEREUNDER (AN "ACTION"), SPECIFYING WITH REASONABLE PARTICULARITY THE
BASIS THEREFOR AND GIVING LICENSOR SUCH INFORMATION WITH RESPECT THERETO AS
LICENSOR MAY REASONABLY REQUEST (BUT THE GIVING OF SUCH NOTICE SHALL NOT BE A
CONDITION PRECEDENT TO INDEMNIFICATION HEREUNDER).
LICENSOR MAY, AT ITS OWN
EXPENSE, (A) PARTICIPATE IN AND (B) UPON NOTICE TO THE INDEMNIFIED PARTY AND
LICENSOR'S WRITTEN AGREEMENT THAT THE INDEMNIFIED PARTY IS ENTITLED TO
INDEMNIFICATION PURSUANT TO SECTION 5.1 FOR LOSSES ARISING OUT OF SUCH ACTION,
6
AT ANY TIME DURING THE COURSE OF ANY ACTION, ASSUME THE DEFENSE THEREOF;
PROVIDED, THAT (V) LICENSOR'S COUNSEL IS REASONABLY SATISFACTORY TO THE
INDEMNIFIED PARTY; (W) LICENSOR'S COUNSEL'S REPRESENTATION OF BOTH LICENSOR AND
THE INDEMNIFIED PARTY WILL NOT RESULT IN A CONFLICT OF INTEREST; (X) THE
INDEMNIFIED PARTY