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1 <br />2 <br />3 <br />4 <br />5 <br />6 <br />7 <br />8 <br />9 <br />10 <br />11 <br />12 <br />13 <br />14 <br />15 <br />16 <br />17 <br />18 <br />19 <br />20 <br />21 <br />22 <br />23 <br />24 <br />25 <br />26 <br />thereto (including, but not limited to, all legal expenses, court costs, and attorney's fees <br />incurred in investigating, preparing, serving as a witness in, or defending against, any such <br />claim action, or proceeding, commenced or threatened) to which any of the Indemnities may be <br />subject, whether or not CONTRACTOR 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 the representations, <br />warranties, covenants or agreements of CONTRACTOR pertaining to Intellectual Property; or <br />(ii) any Intellectual Property infringement, or any other type of actual or alleged infringement <br />claim, arising out of COUNTY's use, reproduction, manufacture, sale, offer to sell, distribution, <br />import, export, modification, public and private performance/display, license, and disposition of <br />the Intellectual Property made, conceived, derived from, or reduced to practice by <br />CONTRACTOR or COUNTY and which result directly or indirectly from this Agreement. This <br />indemnity obligation shall apply irrespective of whether the infringement claim is based on a <br />patent, trademark or copyright registration that was issued after the effective date of this <br />Agreement. COUNTY reserves the right to participate in and/or control, at CONTRACTOR's <br />expense, any such infringement action brought against COUNTY. <br />(2) Should any Intellectual Property licensed by the CONTRACTOR to COUNTY under <br />this Agreement become the subject of an Intellectual Property infringement claim <br />CONTRACTOR will exercise its authority reasonably and in good faith to preserve COUNTY's <br />right to use the licensed Intellectual Property in accordance with this Agreement at no expense <br />to COUNTY. COUNTY shall have the right to monitor and appear through its own counsel (at <br />CONTRACTOR's expense) in any such claim or action. In the defense or settlement of the <br />claim, CONTRACTOR may obtain the right for COUNTY to continue using the licensed <br />intellectual Property or, replace or modify the licensed Intellectual Property, so that the <br />replaced or modified Intellectual Property becomes non-infringing provided that such <br />replacement or modification is functionally equivalent to the original licensed Intellectual <br />Property. If such remedies are not reasonably available, COUNTY may be entitled to a refund <br />of all monies paid under this Agreement, without restriction or limitation of any other rights and <br />remedies available at law or in equity. <br />WIA COST REIMBURSEMENT CONTRACT- REV. 5-15-07 3O <br />20D-32 <br />