PARTS OF THE BASIS OF FVC'S BARGAIN HEREUNDER AND THAT FVC WOULD NOT ENTER INTO
THIS AGREEMENT ON THESE TERMS IN THE ABSENCE OF SUCH PROVISIONS.
11.0
INDEMNIFICATION.
11.1
FVC AGREES TO INDEMNIFY AND HOLD PARTNER HARMLESS FROM AND AGAINST
ANY AND ALL CLAIMS, ACTIONS, LOSSES OR DAMAGES, INCLUDING REASONABLE ATTORNEY'S
FEES AND COSTS ARISING FROM A THIRD PARTY CLAIM ALLEGING: (A) THE INFRINGEMENT
OF A THIRD PARTY'S U.S. PATENT OR COPYRIGHT; (B) A BREACH BY FVC OF A WARRANTY
AS SET FORTH IN SECTION 9.1 ABOVE; OR (C) PERSONAL INJURY AND PRODUCT LIABILITY,
WHICH ARISE IN WHOLE OR IN PART FROM THE NORMAL AND INTENDED USE OF A PRODUCT
HEREUNDER BY A END-USER CUSTOMER.
THIS INDEMNIFICATION OBLIGATION IS
CONDITIONED UPON THE FOLLOWING: PARTNER AGREES TO PROMPTLY NOTIFY FVC IN WRITING
OF ANY SUCH CLAIM AND PROVIDE REASONABLE ASSISTANCE AT FVC'S EXPENSE IN THE
DEFENSE OR SETTLEMENT THEREOF, AND PROVIDED FURTHER THAT FVC SHALL HAVE SOLE
CONTROL OF THE DEFENSE AND ALL RELATED SETTLEMENT NEGOTIATIONS WITH RESPECT
HERETO. FVC SHALL NOT BE RESPONSIBLE FOR INDEMNIFICATION FOR ANY SETTLEMENT MADE
WITHOUT ITS WRITTEN CONSENT.
11.2
IF A PRODUCT OR ANY PART THEREOF BECOMES, OR IN FVC'S OPINION IS
LIKELY TO BECOME, THE SUBJECT OF A CLAIM OF INFRINGEMENT OF AN INTELLECTUAL
PROPERTY RIGHT OF A THIRD PARTY, PARTNER SHALL PERMIT FVC, AT ITS SOLE OPTION
AND EXPENSE, (I) TO PROCURE FOR PARTNER OR ITS END-USER CUSTOMERS THE RIGHT TO
CONTINUE USING SUCH PRODUCT, (II) TO REPLACE OR MODIFY SUCH PRODUCT SO THAT IT
BECOMES NON-INFRINGING, OR (III) TO GRANT PARTNER A REFUND FOR SUCH PRODUCT AS
DEPRECIATED IN ACCORDANCE WITH THE STRAIGHT LINE METHOD OF DEPRECIATION FOR
THREE YEARS.
THE FOREGOING STATES FVC'S TOTAL LIABILITY AND PARTNER'S SOLE AND
EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS PARTNER MAY HAVE AGAINST FVC ARISING
FROM OR RELATING TO SUCH INFRINGEMENT.
11.3
NOTWITHSTANDING ANY LIMITATIONS SET FORTH IN THIS AGREEMENT, PARTNER
SHALL INDEMNIFY AND HOLD FVC HARMLESS FROM AND AGAINST ALL CLAIMS, LIABILITIES,
DAMAGES, LOSSES AND EXPENSES, INCLUDING REASONABLE ATTORNEY'S FEES, WHICH FVC
MAY INCUR, ARISING FROM OR RELATING TO THIRD PARTY CLAIMS BASED ON THE CONDUCT
OF PARTNER'S OPERATIONS UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED, TO ANY
BREACH BY PARTNER OF THIS AGREEMENT.
11.4
NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, FVC SHALL HAVE NO LIABILITY TO PARTNER OR ITS END-USER CUSTOMERS WITH
RESPECT TO ANY CLAIM OF PATENT, COPYRIGHT OR ANY OTHER INTELLECTUAL PROPERTY
RIGHT INFRINGEMENT WHICH (I) ARISES FROM THE COMBINATION OR
VI - Effective July 2001
PARTNER AGREEMENT
11
UTILIZATION OF THE PRODUCT WITH ANY ITEM OF HARDWARE OR WITH ANY MACHINE,
DEVICE, COMPUTER OR SOFTWARE NOT FURNISHED OR APPROVED BY FVC, (II) BASED UPON A
PRODUCT WHICH HAS BEEN USED IN A MANNER FOR WHICH IT WAS NOT DESIGNED, OR
(III) USE OF A SUPERSEDED OR ALTERED RELEASE OF A PRODUCT IF SUCH INFRINGEMENT
WOULD HAVE BEEN AVOIDED BY THE USE OF CURRENT UNALTERED RELEASES OF THE PRODUCT
THAT FVC PROVIDES TO PARTNER OR ITS END-USER CUSTOMERS.