alleged infringement
and is given authority, information, and assistance (at Altera's expense)
necessary to defend or settle said suit or proceeding. Altera shall have the
absolute right to control the defense and settlement of any infringement suit or
proceeding for which Distributor seeks indemnification under this paragraph.
Altera shall not be obligated to defend or be liable for costs and damages if
the infringement arises out of (1) Products that are manufactured by Altera in
accordance with Distributor's specifications, or (2) the Products being combined
with or added to another product, or (3) the Products being modified after
delivery to Distributor by Altera (including any programming done by Distributor
or Distributor's customer), or (4) from use of the Products, or any part
thereof, in the practice of a process. Altera's obligations hereunder shall not
apply to any infringement occurring after Distributor has received notice of
such suit or proceeding alleging the infringement unless Altera has given
written permission for such use by Distributor.
(b) If any Product manufactured and supplied by Altera to Distributor shall be
held by any court in the Territory to infringe any patent, registered trademark,
or copyright and Distributor shall be enjoined from using the same, Altera will
at its option and at its expense (1) procure for Distributor the right to use
such Product free of any liability for infringement or (2) replace such Product
with non-infringing substitute Product or (3) refund the purchase price of such
Product.
11
Confidential Treatment Requested
Omitted Portions Marked with [ * ] and Filed Separately with the SEC
(c) If the infringement by Distributor is alleged prior to Altera's completion
of delivery of the Products, Altera may decline to make further shipments
without being in breach of this Agreement.
(d) If any suit, proceeding, or claim of infringement is asserted against Altera
in the Territory based on a claim that the goods manufactured by Altera in
compliance with Distributor's specifications and supplied to Distributor
directly infringe any duly issued patent, registered trademark, or copyright,
then Distributor shall indemnify Altera to the same extent as specified in
subparagraph 11.7(a) of this Agreement. However, Distributor shall not be
obligated to indemnify Altera for specifications developed solely by
Distributor's end customers.
(e) THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF THE PARTIES HERETO
FOR PATENT, TRADEMARK, OR COPYRIGHT INFRINGEMENT AND IS IN LIEU OF ALL
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO.
12. SOFTWARE LICENSE. Altera grants and Distributor accepts a non-exclusive
license to use and sublicense Altera Software Products and other copyrighted
materials, including but not limited to printed materials, on the following
terms (the "License"):
12.1 The Software Products covered by this Agreement are confidential and
proprietary to Altera and its licensors, and Altera and its licensors retain all
title, copyright, patent and other proprietary rights to the Software Products
and all copies thereof.
12.2 Distributor may sublicense Altera Software Products to its customers for
use in a manner that is not inconsistent with the terms