IS REASONABLY SATISFIED THAT LICENSOR HAS THE FINANCIAL
ABILITY TO SATISFY ANY JUDGMENT THAT MAY BE AWARDED PURSUANT TO SUCH ACTION;
(Y) LICENSOR SHALL THEREAFTER CONSULT WITH THE INDEMNIFIED PARTY UPON THE
INDEMNIFIED PARTY'S REQUEST FOR SUCH CONSULTATION FROM TIME TO TIME WITH RESPECT
TO SUCH ACTION; AND (Z) LICENSOR SHALL THEREAFTER DILIGENTLY PURSUE THE DEFENSE
OF SUCH ACTION.
IF LICENSOR ASSUMES SUCH DEFENSE ON SUCH TERMS, THE INDEMNIFIED
PARTY SHALL HAVE THE RIGHT (BUT NOT THE DUTY) TO PARTICIPATE IN THE DEFENSE
THEREOF AND TO EMPLOY COUNSEL, AT ITS OWN EXPENSE, SEPARATE FROM THE COUNSEL
EMPLOYED BY LICENSOR.
IF LICENSOR DOES NOT ASSUME SUCH DEFENSE ON SUCH TERMS,
THE INDEMNIFIED PARTY SHALL HAVE THE RIGHT (BUT NOT THE DUTY) TO ASSUME THE
DEFENSE OF SUCH ACTION AT LICENSOR'S EXPENSE.
WHETHER OR NOT LICENSOR CHOOSES
TO DEFEND OR PROSECUTE ANY SUCH ACTION, ALL OF THE PARTIES HERETO SHALL
COOPERATE IN THE DEFENSE OR PROSECUTION THEREOF.
IN THE EVENT THAT LICENSOR
ELECTS NOT TO ASSUME THE DEFENSE OF ANY ACTION, SUCH ELECTION SHALL NOT RELIEVE
LICENSOR OF ITS OBLIGATIONS HEREUNDER.
5.3
NO PARTY SHALL SETTLE OR COMPROMISE ANY CLAIM, SUIT, ACTION OR
PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY, WHICH SHALL NOT
BE UNREASONABLY WITHHELD, CONDITIONED OR DELAYED.
ANY SETTLEMENT OR COMPROMISE
MADE OR CAUSED TO BE MADE BY THE INDEMNIFIED PARTY OR LICENSOR, AS THE CASE MAY
BE, OF ANY SUCH CLAIM, SUIT, ACTION OR PROCEEDING OF THE KIND REFERRED TO IN
SECTION 5.2 SHALL ALSO BE BINDING UPON LICENSOR OR THE INDEMNIFIED PARTY, AS THE
CASE MAY BE, IN THE SAME MANNER AS IF A FINAL JUDGMENT OR DECREE HAD BEEN
ENTERED BY A COURT OF COMPETENT JURISDICTION IN THE AMOUNT OF SUCH SETTLEMENT OR
COMPROMISE.
5.4
SHOULD ANY PART OF THE SOFTWARE, OR THE OPERATION THEREOF, BECOME
OR IN LICENSEE'S REASONABLE OPINION BE LIKELY TO BECOME, THE SUBJECT OF A CLAIM,
LICENSOR SHALL HAVE THE OBLIGATION, AT LICENSOR'S EXPENSE, TO EITHER (I) PROCURE
FOR THE LICENSEE THE RIGHT TO CONTINUE USING AND COPYING SUCH PART OF THE
SOFTWARE, OR (II) REPLACE OR MODIFY SUCH PART OF THE SOFTWARE SO THAT IT BECOMES
NON-INFRINGING.
ARTICLE VI
MISCELLANEOUS
6.1
THIS AGREEMENT MAY NOT BE AMENDED, MODIFIED OR SUPPLEMENTED UNLESS
SUCH AMENDMENT IS IN WRITING AND DULY EXECUTED BY THE PARTIES.
NO APPROVAL,
CONSENT OR WAIVER WILL BE ENFORCEABLE UNLESS SIGNED BY THE GRANTING PARTY.
FAILURE TO INSIST ON STRICT PERFORMANCE OR TO EXERCISE A RIGHT WHEN ENTITLED
DOES NOT PREVENT A PARTY FROM DOING SO LATER FOR THAT BREACH OR A FUTURE ONE.
6.2
ANY NOTICE, REQUEST, INSTRUCTION OR OTHER DOCUMENT TO BE GIVEN
HEREUNDER BY A PARTY HERETO SHALL BE IN WRITING AND SHALL BE DEEMED TO HAVE BEEN
GIVEN, (A) WHEN RECEIVED IF GIVEN IN PERSON, (B) ON THE DATE OF TRANSMISSION IF
SENT BY TELEX, TELECOPY OR OTHER WIRE TRANSMISSION OR (C) THREE (3) BUSINESS
DAYS AFTER BEING DEPOSITED IN THE MAIL, CERTIFIED OR REGISTERED MAIL, POSTAGE
PREPAID:
7
If to Licensor or