ANY PORTION THEREOF IN ANY
WAY THAT INFRINGES OR MISAPPROPRIATES ANY THIRD PARTY INTELLECTUAL PROPERTY
RIGHTS, PROVIDED, HOWEVER THAT THE FOREGOING WARRANTY SHALL NOT (A) LIMIT HSW'S
WARRANTY UNDER SECTION 6.1(III), (B) APPLY WITH RESPECT TO MODIFIED PURCHASED
UPDATES PROVIDED BY HSW TO COMPANY UNDER THE SERVICES AGREEMENT, AND (C) APPLY
WITH RESPECT TO MODIFICATIONS TO THE PURCHASED UPDATES MADE BY OR AT HSW'S
EXPLICIT WRITTEN REQUEST, WITH THE EXCEPTION OF ANY TRANSLATIONS TO SUCH
MODIFIED PURCHASED UPDATES OR ANY DERIVATIVE WORKS TO SUCH MODIFIED PURCHASED
UPDATES MADE BY OR ON BEHALF OF COMPANY; AND (V) IT WILL ENSURE THAT THE
CONTRIBUTED UPDATES ARE AT ALL TIMES IN COMPLIANCE WITH ALL APPLICABLE LAWS,
RULES, STATUTES, REGULATIONS AND ORDINANCES.
6.3
DISCLAIMER.
EXCEPT FOR THE EXPRESS
WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES
ANY WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE. EACH PARTY EXPRESSLY
DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED OR
STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND
ACCURACY.
7.
INDEMNITY
7.1
BY HSW.
HSW HEREBY AGREES TO DEFEND,
INDEMNIFY AND HOLD HARMLESS COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES AND
AGENTS AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, JUDGMENTS,
DAMAGES, PENALTIES, LOSSES, LIABILITIES, COSTS AND EXPENSES (INCLUDING
REASONABLE ATTORNEY FEES'
5
AND COURT COSTS) ARISING OUT OF OR RESULTING FROM (I) HSW'S BREACH OF ANY
REPRESENTATION OR WARRANTY UNDER THIS AGREEMENT; OR (II) THIRD PARTY CLAIMS THAT
COMPANY'S USE OF THE PURCHASED UPDATES, OR ANY PORTION THEREOF, AS AUTHORIZED
HEREIN INFRINGES OR MISAPPROPRIATES ANY THIRD PARTY INTELLECTUAL PROPERTY
RIGHTS. FOR THE AVOIDANCE OF DOUBT, THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY
AMOUNTS PAID BY COMPANY IN INDEMNIFYING A SUBLICENSEE FOR ANY CLAIMS, DEMANDS OR
CAUSES OF ACTIONS ARISING OUT OF OR RESULTING FROM HSW'S BREACH OF ANY
REPRESENTATION OR WARRANTY UNDER THIS AGREEMENT SHALL BE DEEMED LOSSES FOR WHICH
COMPANY IS ENTITLED TO INDEMNIFICATION HEREUNDER. COMPANY AGREES TO PROVIDE HSW
WITH PROMPT WRITTEN NOTICE OF ANY THIRD PARTY CLAIM SUBJECT TO INDEMNIFICATION,
ALLOW HSW TO HAVE SOLE CONTROL OF THE DEFENSE OF SUCH CLAIM AND ANY RESULTING
DISPOSITION OR SETTLEMENT OF SUCH CLAIM; PROVIDED, HOWEVER, THAT COMPANY MAY
PARTICIPATE IN THE DEFENSE OF A CLAIM AT ITS OWN EXPENSE. NOTWITHSTANDING THE
FOREGOING, ANY DELAY BY COMPANY IN PROVIDING NOTICE AS REQUIRED HEREUNDER SHALL
NOT RELIEVE HSW OF ITS INDEMNIFICATION OBLIGATIONS EXCEPT AND ONLY TO THE EXTENT
THAT HSW WAS PREJUDICED BY SUCH DELAY.
7.2
HSW RIGHTS.
IF HSW DETERMINES THAT THE
PURCHASED UPDATES OR ANY PORTION THEREOF, BECOMES, OR IS LIKELY TO BECOME, THE
SUBJECT OF AN INFRINGEMENT CLAIM OR ACTION, HSW MAY AT ITS SOLE OPTION:
(I)
PROCURE, AT NO COST TO COMPANY THE RIGHT TO CONTINUE USING SUCH PURCHASED
UPDATES, OR PORTION THEREOF, AS APPLICABLE; (II) REPLACE OR MODIFY THE PURCHASED
UPDATES, OR PORTION THEREOF, AS APPLICABLE TO RENDER IT NON-INFRINGING; OR (III)
IF, IN HSW'S REASONABLE OPINION, NEITHER (I) NOR (II) ABOVE ARE COMMERCIALLY
FEASIBLE, HSW MAY REMOVE SUCH PURCHASED UPDATES FROM