MAY JOIN LICENSEE AS A PARTY IN ANY SUCH ACTION (WITH LICENSEE HAVING THE RIGHT
TO PARTICIPATE IN SUCH ACTION AND TO BE REPRESENTED, IF IT SO DESIRES AND AT ITS
OWN EXPENSE, BY COUNSEL OF ITS OWN SELECTION) AND TO GIVE LICENSOR REASONABLE
ASSISTANCE AND ANY NEEDED AUTHORITY TO CONTROL, FILE AND PROSECUTE SUCH ACTION,
WITHOUT EXPENSE TO LICENSEE.
5.3 COOPERATION.
IN ANY SUIT OR DISPUTE INVOLVING AN INFRINGER, THE PARTIES
AGREE TO COOPERATE FULLY WITH EACH OTHER AT THE EXPENSE OF THE PARTY BRINGING
THE SUIT.
COOPERATION SHALL
INCLUDE PERMITTING ACCESS DURING REGULAR BUSINESS HOURS UPON REASONABLE NOTICE,
TO ALL RELEVANT PERSONNEL, RECORDS, PAPERS, INFORMATION, SAMPLES, SPECIMENS, AND
THE LIKE IN ITS POSSESSION.
5.4 LICENSES TO ABATE THIRD PARTY INFRINGEMENT.
LICENSEE SHALL HAVE THE SOLE
RIGHT IN ACCORDANCE WITH THE TERMS AND CONDITIONS HEREIN TO SUBLICENSE THE
RIGHTS GRANTED TO LICENSEE UNDER SECTION 2.1 TO ANY ALLEGED INFRINGER.
VI.
INDEMNIFICATION
6.1 INDEMNIFICATION BY LICENSOR.
SUBJECT TO SECTION 6.2, LICENSOR, AT ITS OWN
EXPENSE, SHALL: (I) DEFEND, OR AT ITS OPTION SETTLE, ANY CLAIM, SUIT OR
PROCEEDING BROUGHT BY A THIRD PARTY AGAINST LICENSEE: (A) THAT THE LICENSED
TECHNOLOGY (EXCEPT FOR IMPROVEMENTS) AS USED IN ACCORDANCE WITH THIS AGREEMENT
INFRINGES ANY UNITED STATES PATENT ISSUED AS OF THE EFFECTIVE DATE, OR ANY
UNITED STATES COPYRIGHT OR TRADEMARK RIGHT(S) OF A THIRD-PARTY,
OR MISAPPROPRIATES ANY UNITED STATES TRADE SECRET OF A THIRD PARTY, (B) THAT
LICENSOR BREACHED ANY OF ITS WARRANTIES, REPRESENTATIONS OR OBLIGATIONS IN
SECTION 8.1, OR (C) ARISING OUT OF LICENSOR'S NEGLIGENCE, TORTIOUS CONDUCT OR
WILLFUL MISCONDUCT HEREUNDER; AND (II) PAY ANY FINAL AND NON-APPEALABLE JUDGMENT
ENTERED OR SETTLEMENT AGAINST LICENSEE THEREON; PROVIDED, HOWEVER, THAT LICENSOR
SHALL NOT BE RESPONSIBLE FOR ANY COMPROMISE OR SETTLEMENT MADE WITHOUT ITS
CONSENT.
LICENSOR SHALL HAVE NO OBLIGATION TO LICENSEE UNLESS:
(1) LICENSEE
GIVES LICENSOR PROMPT WRITTEN NOTICE OF THE CLAIM; (2) LICENSOR IS GIVEN THE
RIGHT TO CONTROL AND DIRECT THE INVESTIGATION, PREPARATION, DEFENSE AND
SETTLEMENT OF THE CLAIM; AND (3) LICENSEE FULLY COOPERATES WITH LICENSOR, AT
LICENSOR'S EXPENSE, IN SUCH DEFENSE AND SETTLEMENT.
(A) EXCLUSIONS.
LICENSOR'S INDEMNIFICATION OBLIGATIONS SHALL NOT APPLY TO ANY
CLAIM RELATING TO:
(A) THE IMPROVEMENTS OR ANY ELEMENT OF THE LICENSED
TECHNOLOGY THAT HAS BEEN CHANGED, ABUSED OR NOT USED AS AUTHORIZED HEREUNDER;
(B) THE BUNDLING OF LICENSED TECHNOLOGY WITH SOFTWARE, HARDWARE OR OTHER
MATERIALS OF LICENSEE AND THIRD PARTIES; (C) USE OF THE LICENSED TECHNOLOGY THAT
EXCEEDS THE SCOPE OF THE LICENSES EXPRESSLY GRANTED IN THIS AGREEMENT; AND/OR
(D) LICENSEE'S FAILURE TO USE THE LICENSED TECHNOLOGY OR ANY PORTION THEREOF IN
ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT.
(B) ADDITIONAL RIGHTS.
IF THE USE, SALE OR DISTRIBUTION OF THE OEM PRODUCTS OR
THE VISTA PRODUCTS BY LICENSEE, OR ITS AFFILIATES OR SUBLICENSEES IS ENJOINED
DUE TO INFRINGEMENT OF THE LICENSED TECHNOLOGY IN THE UNITES STATES, OR IF
LICENSOR WISHES TO MINIMIZE ITS POTENTIAL LIABILITY IN CONNECTION THEREWITH,
LICENSOR MAY, AT ITS OPTION AND EXPENSE, EITHER:
(A) SUBSTITUTE FUNCTIONALLY
EQUIVALENT NON-INFRINGING LICENSED TECHNOLOGY; (B) MODIFY