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and federal funds will not be used in the performance of this subgrant
<br />agreement for the acquisition, operation or maintenance of computer
<br />software in violation of copyright laws.
<br />(h). It has no knowledge of any outstanding claims, licenses or other
<br />charges, liens, or encumbrances of any kind or nature whatsoever
<br />that could affect in any way Subrecipients performance of this
<br />subgrant agreement.
<br />(2). PASS -THROUGH ENTITY MAKES NO WARRANTY THAT THE INTELLECTUAL PROPERTY
<br />RESULTING FROM THIS SUBGRANT AGREEMENT DOES NOT INFRINGE UPON ANY
<br />PATENT, TRADEMARK, COPYRIGHT OR THE LIKE NOW EXISTING OR
<br />SUBSEQUENTLY ISSUED.
<br />h). Intellectual Property Indemnity
<br />(1). Subrecipient shall indemnify, defend and hold harmless Pass -through Entity
<br />and its licensees and assignees, and its officers, directors, employees,
<br />agents, representatives, successors, and users of its products,
<br />("Indemnities") from and against all claims, actions, damages, losses,
<br />liabilities (or actions or proceedings with respect to any thereof), whether
<br />or not rightful, arising from any and all actions or claims by any third party
<br />or expenses related thereto (including, but not limited to, all legal expenses,
<br />court costs, and attorney's fees incurred in investigating, preparing, serving
<br />as a witness in, or defending against, any such claim action, or proceeding,
<br />commenced or threatened) to which any of the Indemnities may be subject, whether
<br />or not Subrecipient is a party to any pending or threatened litigation, which
<br />arise out of or are related to (i) the incorrectness or breach of any of
<br />the representations, warranties, covenants or agreements of Subrecipient
<br />pertaining to Intellectual Property; or (ii) any Intellectual Property
<br />infringement, or any other type of actual or alleged infringement claim,
<br />arising out of Pass -through Entity's use, reproduction, manufacture, sale,
<br />offer to sell, distribution, import, export, modification, public and private
<br />performance/display, license, and disposition of the Intellectual Property
<br />made, conceived, derived from, or reduced to practice by Subrecipient or
<br />Pass -through Entity and which result directly or indirectly from this
<br />subgrant agreement. This indemnity obligation shall apply irrespective of
<br />whether the infringement claim is based on a patent, trademark or copyright
<br />registration that was issued after the effective date of this subgrant agreement.
<br />Pass -through Entity reserves the right to participate in and/or control, at
<br />Subrecipient's expense, any such infringement action brought against
<br />Pass -through Entity.
<br />(2). Should any Intellectual Property licensed by the Subrecipient to Pass -through
<br />Entity under this subgrant agreement become the subject of an Intellectual
<br />Property infringement claim, Subrecipient will exercise its authority reasonably
<br />and in good faith to preserve Pass -through Entity's right to use the licensed
<br />Intellectual Property in accordance with this subgrant agreement at no expense to
<br />Pass -through Entity. Pass -through Entity shall have the right to monitor and
<br />appear through its own counsel (at Subrecipient's expense) in any such claim or
<br />action. In the defense or settlement of the claim, Subrecipient may obtain the
<br />right for Pass -through Entity to continue using the licensed Intellectual Property
<br />or, replace or modify the licensed Intellectual Property so that the replaced or
<br />modified Intellectual Property becomes non -infringing provided that such
<br />replacement or modification is functionally equivalent to the original
<br />licensed Intellectual Property. If such remedies are not reasonably
<br />available, Pass -through Entity may be entitled to a refund of all monies
<br />paid under this subgrant agreement, without restriction or limitation of
<br />any other rights and remedies available at law or in equity.
<br />(3). Subrecipient agrees that damages alone would be inadequate to compensate
<br />Pass -through Entity for breach of any term of these Intellectual Property
<br />provisions of paragraph 19(a) through 19@ by Subrecipient. Subrecipient
<br />acknowledges Pass -through Entity would suffer irreparable harm in the event
<br />of such breach and agrees Pass -through Entity shall be entitled to obtain
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