THE INFRINGING
LICENSED TECHNOLOGY SO THAT THE OEM PRODUCTS OR VISTA PRODUCTS NO LONGER
INFRINGE, BUT REMAIN FUNCTIONALLY EQUIVALENT; (C) OBTAIN FOR LICENSEE THE RIGHT
TO CONTINUE TO USE SUCH LICENSED TECHNOLOGY; OR (D) IF NONE OF THE FOREGOING IS
FEASIBLE, REFUND TO LICENSEE A PRO RATA PORTION OF THE ROYALTIES PAID HEREUNDER
(AS DEPRECIATED ON A STRAIGHT LINE BASIS OVER FIVE (5) YEARS FROM THE EFFECTIVE
DATE).
6.2 INDEMNIFICATION BY LICENSEE.
LICENSEE, AT ITS OWN EXPENSE, SHALL:
(I) DEFEND, OR AT ITS OPTION SETTLE, ANY CLAIM, SUIT OR PROCEEDING AGAINST
LICENSOR ARISING FROM OR IN CONNECTION WITH (X) LICENSEE'S BREACH OF ANY OF ITS
WARRANTIES, REPRESENTATIONS OR OBLIGATIONS IN SECTION 8.2, 12.10, 12.11 AND
12.12, (Y) ANY LICENSEE MODIFICATION, COMBINATION, ADAPTATION, INTEGRATION,
INCORPORATION, REPRODUCTION, SALE, LEASE, RENTAL OR OTHER COMMERCIALIZATION,
DISTRIBUTION OR PERFORMANCE OF THE LICENSED PRODUCTS, OR (Z) LICENSEE'S
NEGLIGENCE, TORTIOUS CONDUCT OR WILLFUL MISCONDUCT; AND (II) PAY ANY FINAL
JUDGMENT ENTERED OR SETTLEMENT AGAINST LICENSOR THEREON, PROVIDED, HOWEVER, THAT
LICENSEE SHALL NOT BE RESPONSIBLE FOR ANY COMPROMISE OR SETTLEMENT MADE WITHOUT
ITS CONSENT.
LICENSEE SHALL HAVE NO OBLIGATION TO LICENSOR PURSUANT TO THIS
SECTION 6.2 UNLESS:
(A) LICENSOR GIVES LICENSEE PROMPT WRITTEN NOTICE OF THE
CLAIM; (B) LICENSEE IS GIVEN THE RIGHT TO CONTROL AND DIRECT THE INVESTIGATION,
PREPARATION, DEFENSE AND SETTLEMENT OF THE CLAIM; AND (C) LICENSOR FULLY
COOPERATES WITH LICENSEE, AT LICENSEE'S EXPENSE, IN SUCH DEFENSE AND SETTLEMENT.
6.3 IN THE EVENT THE PROVISIONS OF THIS ARTICLE VI CONFLICT WITH SIMILAR
PROVISIONS CONTAINED IN THE ASSET PURCHASE AGREEMENT, THE PROVISIONS OF THE
ASSET PURCHASE AGREEMENT SHALL CONTROL.
VII.
CONFIDENTIAL INFORMATION
7.1 NONDISCLOSURE.
RECIPIENT SHALL NOT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
HEREIN, DISCLOSE, DISSEMINATE OR OTHERWISE ALLOW ACCESS TO THE CONFIDENTIAL
INFORMATION OF DISCLOSER TO ANYONE OTHER THAN RECIPIENT'S EMPLOYEES THAT HAVE A
NEED TO KNOW SUCH CONFIDENTIAL INFORMATION TO IMPLEMENT THIS AGREEMENT AND WHO
ARE BOUND BY WRITTEN CONFIDENTIALITY OBLIGATIONS WITH PROVISIONS NO LESS
STRINGENT THAN THOSE CONTAINED IN THIS SECTION VII.
RECIPIENT SHALL PREVENT
UNAUTHORIZED DISCLOSURE OR USE OF THE CONFIDENTIAL INFORMATION OF DISCLOSER.
DISCLOSER AND RECIPIENT SHALL EXECUTE ANY DOCUMENTS AND OTHERWISE SHALL TAKE ALL
NECESSARY STEPS TO ENSURE THAT DISCLOSER AND RECIPIENT SHALL EACH BE ABLE TO
ENFORCE DISCLOSER'S RIGHTS HEREUNDER AGAINST RECIPIENT, ITS EMPLOYEES AND ALL
OTHER THIRD PARTIES TO WHOM RECIPIENT DISCLOSES DISCLOSER'S CONFIDENTIAL
INFORMATION, UNDER THE LAWS OF EACH JURISDICTION IN WHICH DISCLOSER'S
CONFIDENTIAL INFORMATION IS DISCLOSED BY RECIPIENT.
RECIPIENT SHALL BE
RESPONSIBLE FOR ANY BREACH OF THIS SECTION VII BY RECIPIENT'S EMPLOYEES,
CONTRACTORS OR AGENTS.
7.2 OWNERSHIP.
EXCEPT AS SET FORTH HEREIN, RECIPIENT ACKNOWLEDGES AND AGREES
THAT DISCLOSER (OR ITS LICENSORS) OWNS ALL RIGHTS, TITLE AND INTERESTS,
INCLUDING INTELLECTUAL PROPERTY RIGHTS, IN AND TO DISCLOSER'S CONFIDENTIAL
INFORMATION.
7.3 NOTIFICATION.
IF RECIPIENT LEARNS OR BELIEVES THAT ANY PERSON WHO HAS HAD
ACCESS TO THE CONFIDENTIAL INFORMATION OF DISCLOSER HAS VIOLATED OR INTENDS TO
VIOLATE THIS AGREEMENT, RECIPIENT SHALL IMMEDIATELY NOTIFY DISCLOSER AND SHALL
COOPERATE WITH DISCLOSER IN SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF AGAINST
ANY SUCH PERSON.
7.4