against any claims, demands or causes of action (a) alleging infringement
of any third party intellectual property rights based on (i) the use of
application code or modifications developed by Distributor or a third party,
(ii) the use of any other software or hardware that is used in conjunction with
the Product, (iii) the unauthorized use of the Product, or (iv) use of the
Product not in conformance with the specifications or the requirements of this
Agreement, (b) based on the unauthorized use of the Product by Distributor, or
(c) based on or resulting from a breach of any provision of this Agreement by
Distributor.
8.12. Product Warranties. SECITV HEREBY DISCLAIMS AND WAIVES ALL RIGHTS TO
CONTEST ALL IMPLIED WARRANTIES OF ANY SORT, INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
TECHNOLOGY, IMPROVEMENTS, LICENSED HARDWARE PRODUCTS, LICENSED SOFTWARE PRODUCTS
AND LICENSED SERVICES.
Page 9 of 19
Exclusive Distribution Agreement between Security IT Vision, Inc. and Sentex
SENSing Technologies, Inc.
6-5-06 #5.2 Version
8.13. Mitigation. In the event that any claim, demand or cause of action
("Claim") is asserted against SecITV or Distributor alleging infringement of any
third party's intellectual property rights resulting from grant or rights made
hereunder or the the use by Distributor of the Product, SecITV promptly shall
use commercially reasonable efforts to seek to resolve such Claim by one or more
of the following: (a) modifying the Product such that it no longer infringes or
(b) obtaining a license, subject to the prior written agreement of Distributor,
intellectual property asserted to have been infringed (the payments under which
shall be borne by Distributor). Should it be commercially unreasonable for
SecITV to undertake either (a) or (b), or if the payments under (b) are unduly
burdensome for Distributor, then Distributor may either (x) terminate this
Agreement, (y) request that SecITV remove the infringing subject matter (at
SecITV's expense) or (z) continue using the Product, provided, that in such
event Distributor shall bear all costs and expenses and responsibility for
defending against and payment of any and all damages relating to Distributor's
use of the Product and any lawsuits, proceedings and/or settlements relating to
any such Claims.
9.
Representations and Warranties of Distributor to SecITV. Distributor represents
and warrants to SecITV as follows:
9.1. Organization. Distributor is a corporation duly organized, validly
existing, and in good standing under the laws of the state of its incorporation.
9.2. Authorization of Transaction. Distributor has all required power and
authority to execute and deliver this Agreement and to issue the Shares and to
perform its obligations hereunder and thereunder. The execution and delivery of
this Agreement by Distributor and the performance of this Agreement and the
consummation of the transactions contemplated hereby and thereby by Distributor
have been duly and validly authorized by all necessary corporate and shareholder
actions. This Agreement has been duly and validly executed and delivered by
Distributor and constitutes a valid and binding obligation of Distributor,
enforceable against it in accordance