DATE AND (B) THE THIRD PARTY SEEKS (INCLUDING BY WAY OF DEMAND LETTER OR SIMILAR
COMMUNICATION TO BUYER) OR OBTAINS (BY WAY OF COURT ORDER, JUDGMENT OR DECREE OR
SETTLEMENT AGREEMENT) EITHER INJUNCTIVE RELIEF OR MONETARY DAMAGES RELATING TO
ANY SELLER PRODUCT OR SELLER INTELLECTUAL PROPERTY (PROVIDED THAT BUYER WILL NOT
ENTER INTO ANY SUCH SETTLEMENT AGREEMENT WITHOUT THE CONSENT OF SELLER, WHICH
WILL NOT UNREASONABLY BE WITHHELD) (AND FOR THE AVOIDANCE OF DOUBT, THE
INDEMNITY PROVIDED IN THIS CLAUSE (VIII) SHALL APPLY IRRESPECTIVE OF ANY
DISCLOSURES IN THE SELLER DISCLOSURE SCHEDULE, WHETHER OR NOT SELLER HAD
KNOWLEDGE OF SUCH POTENTIAL CLAIM, DEMAND, ASSERTION OF LIABILITY, ACTION, SUIT
OR PROCEEDING OR OF ANY BASIS THEREFOR), AND WHETHER OR NOT THE THIRD PARTY
PREVAILS IN OBTAINING INJUNCTIVE RELIEF OR MONETARY DAMAGES (BY WAY OF COURT
ORDER, JUDGMENT OR DECREE OR SETTLEMENT AGREEMENT) (SUCH EVENTS, THE "ESCROW IP
CLAIM EVENTS"), AND PROVIDED FURTHER THAT SELLER SHALL REIMBURSE BUYER FOR ALL
COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES, OTHER PROFESSIONALS'
AND EXPERTS' FEES, COSTS OF INVESTIGATION AND COURT COSTS) TO EVALUATE, RESPOND
TO AND DEFEND AGAINST ESCROW IP CLAIMS EVENTS AS THEY ARE INCURRED.
THE
CALCULATION OF LOSSES PURSUANT TO THIS SECTION 8.2(B) SHALL BE MADE WITHOUT
GIVING EFFECT TO ANY LIMITATION AS TO "MATERIALITY" OR "MATERIAL ADVERSE EFFECT"
SET FORTH IN THIS AGREEMENT, THE COLLATERAL AGREEMENTS, OR IN ANY CERTIFICATE,
INSTRUMENT, OR OTHER DOCUMENT DELIVERED BY SELLER PURSUANT TO THIS AGREEMENT.
FOR PURPOSES OF THIS AGREEMENT, "LOSS" OR "LOSSES" SHALL MEAN ANY CLAIMS,
LOSSES, LIABILITIES, DAMAGES, DEFICIENCIES, COSTS, AND EXPENSES, INCLUDING
REASONABLE ATTORNEYS' FEES AND THE EXPENSES OF INVESTIGATION AND DEFENSE.
(C)
COMPENSATION FOR LOSSES.
THE ESCROW FUND
SHALL BE AVAILABLE TO COMPENSATE THE BUYER INDEMNITEES FOR LOSSES IN ACCORDANCE
WITH THIS AGREEMENT AND THE ESCROW AGREEMENT. THE BUYER INDEMNITEES MAY RECOVER
ALL LOSSES FOR WHICH THERE IS NO OBJECTION FROM SELLER OR ANY OBJECTION HAS BEEN
RESOLVED IN ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE VIII AND THE ESCROW
AGREEMENT.
THE PROCEDURES FOR THE BUYER INDEMNITEES TO MAKE CLAIMS FOR LOSSES
AGAINST THE ESCROW FUND, FOR SELLER TO OBJECT TO SUCH CLAIMS, AND FOR BUYER AND
SELLER TO RESOLVE ANY SUCH OBJECTIONS SHALL BE AS SET FORTH IN THE ESCROW
AGREEMENT.
(D)
NATURE OF REMEDY; LIMITATION OF LIABILITY.
OTHER THAN LOSSES ATTRIBUTABLE TO FRAUD OR INTENTIONAL OR WILLFUL BREACH OR
INTENTIONAL OR WILLFUL MISREPRESENTATION OR THE MATTERS REFERRED TO IN SECTION
8.2(B)(II) OR (III), CLAIMS AGAINST THE ESCROW FUND SHALL BE THE SOLE AND
EXCLUSIVE REMEDY OF THE BUYER INDEMNITEES FOR RECOVERY OF LOSSES.
BUYER OR THE
BUYER INDEMNITEES MUST ASSERT CLAIMS FOR LOSSES HEREUNDER ON OR BEFORE 5:00 P.M.
(PACIFIC TIME) ON THE LAST DAY OF THE ESCROW PERIOD.
8.3
Third-Party Claims.
In the event Buyer
becomes aware of a third-party claim (a "Third-Party Claim") which Buyer
reasonably believes may result in a claim for indemnification for Losses
pursuant to this Article VIII and the Escrow Agreement, Buyer shall promptly
notify Seller
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of such claim, and Seller shall