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f). Third -Party Intellectual Property
<br />Except as provided 'herein, Subgrantee agrees that its performance of this subgrant agreement shall not be
<br />dependent upon or include any Intellectual Property of Subgrantee or third party without first: (i.)
<br />obtaining "pass- through" entity's prior written
<br />approval; and (ii) granting to or obtaining for ^pass - through" entity's, without additional compensation,
<br />a license, as described in paragraph nineteen c), for any of
<br />Subgranteee or third- party's Intellectual Property in existence prior to the effective date of this
<br />subgrant agreement. If such a license upon these terms is unattainable, and "pass - through" entity
<br />determines that the Intellectual Property should be included in or is required for Subgranteee
<br />performance of this subgrant agreement, Subgrantee shall obtain a license under terms acceptable to
<br />-pass-through- entity,
<br />g). Warranties
<br />(1). Subgrantee represents and warrants that;
<br />(a). It has secured and will aecu'ra all rights and licensee necessary for its performance of this
<br />subgrant agreement.
<br />(b). Neither Subgrantee'¢ performance of this subgrant agreement, nor the exercise by either Party of the
<br />rights granted in this subgrant agreement, nor any use, reproduction, manufacture, sale, offer to sell,
<br />import, export, modification, public and private display /performance, distribution, and disposition of
<br />the InLallemtual property made, conceived, derived from, or reduced to practice by Subgrantee or "pass -
<br />througb" entity and which result directly or indirectly from this subgrant agreement will infringe upon
<br />or violate any intellectual Property right, non - disclosure obligation, or other proprietary right or
<br />interest of any third -party or entity now existing under the laws of, or hereafter existing or issued by,
<br />any state, the United States, or any foreign Country. There are currently no actual or threatened claims
<br />by any ouch third party based on an alleged violation of any such right by Subgrantee.
<br />(c), Neither Subgranteee performance nor any part of its performance will violate the right of privacy
<br />of, or constitute a libel or slander against any person or entity.
<br />(d). It has secured and will secure all rights and licenses necessary for Intellectual Property
<br />including, but not limited to, comments, waivers or releases from all authors.
<br />(e). Of music or performances used, and talent (radio, television and motion picture talent), owners of
<br />any interest in and to real estate, sites locations, property or props that may be used or shown.
<br />(f) . It has not granted and shall not grant to any person or entity any right that would or might
<br />derogate, encumber, or interfere with any of the rights granted to "pass- through" entity in this subgrant
<br />agreement,
<br />(g). It has appropriate systems and controls in place to ensure that state and federal funds will not be
<br />used in the performance of this subgrant agreement for the acquisition, operation Or maintenance of
<br />computer software in violation of copyright laws.
<br />(h) . It has no knowledge of any outstanding claims, licenses or other charges, liens, or encumbrances of
<br />any kind or nature whateoaven that could affect in any way Subgranteee performance of this subgrant
<br />agreement.
<br />(2) . "PASS - THROUGH" ENTITY MAKES NO WARRANTY THAT THE INTELLECTUAL PROPERTY RESULTING FROM THIS SUAGRANT
<br />AGREEMENT DOES NOT INFRINGE UPON ANY PATENT, TRADEMARK, COPYRIGHT OR THE LI$E NOW EXISTING OR
<br />,SUBSEQUF,NTLY ISSUED.
<br />h). Intellectual Property Indemnity
<br />(1) . Subgrantee shall indemnify, defend and hold harmless "palm- through" entity and its licensees and
<br />assignees, and its officers, directors, empleyeee, agents, representatives, successors, and users of iLo
<br />Products, ( "$adeauaitiea ") from and against all claims, actions, damages, losses, liabilities (or actions
<br />or proceedings with respect to any thereof) , whether or not rightful, arising from any and all Actions or
<br />elaimo by any third party or expenses related thereto (including, but not limited to, all legal expenses,
<br />court costs, and attorney's fees incurred in investigating, preparing, serving as a witness in, or
<br />defending against, any such claim action, or proceeding, commenced or threatened) to which any of the
<br />Indemnities may be subject, whether or not Subgrantee is a party to any pending or threatened litigation,
<br />which arise out of or are related to (i) the incorrectness or breach of any of the representations,
<br />warranties, covenants or agreements of Subgrantee pertaining to Intellectual Property; or (11) any
<br />Intellectual Property infringement, or any other, type of actual or alleged infringement claim, arising
<br />out of "pass- through" entity's use, reproduction, manufacture, sale, offer to sell, distribution, import,
<br />export, modi.ficati.on, public and private performance /display, license, and disposition of the
<br />Intellectual Property made, conceived, derived from, or reduced to practice by Subgrantee or "pass -
<br />through" entity and which result directly or indirectly from this subgrant agreement. This indemnity
<br />obligation shall apply irrespective of whether the infringement claim is based on a patent, trademark or
<br />copyright registration that was issued after the effective date of this subgrant agreemeuL, "pace -
<br />through" entity reoerves the right to participate in and /or control, at Subgrantee'¢ expense, any much
<br />infringement action brought against "pass- through" entity.
<br />(a.). Should any Intellectual Property licensed by the Subgrantee to "paoo- through" entity under this
<br />subgrant agreement become the subject of an intellectual Property infringement claim, ,Subgrantee will
<br />exercise its authority reasonably arid in good faith to preserve "pass- through" entity's right to use the
<br />licensed intellectual Property in accordance with this subgrant agreement at no expense to "pass- through"
<br />entity. °pass- through" entity shall, have the right to monitor and appear through its own counsel (at
<br />Subgra.ntee's expense) in any such claim or action. In the defense or settlement of the claim, Subgrantee
<br />may obtain the right for "pass- through" entity to continue using the licensed Intellectual Property or,
<br />replace or modify the licensed Intellectual Property so that the replaced or. modified Intellectual
<br />Property becomes non - infringing provided that such replaoement or modification is functionally equivalent
<br />to the original licensed intellectual. Properly. If ouch ramedies are not reasonably available, "pass -
<br />through" entity may be entitled to a refund of all monies paid under this subgrant agreement, without
<br />restriction or limitation of any other rights and remedies available at law or in equity,
<br />(3). ,Subgrantee agrees that damages alone would be inadequate to compensate "pass- through" entity for
<br />breach of any term of these Intellectual Property provisions of paragraph ninetoen a� through nineteen I)
<br />by Subgrantee. Subgrantee Acknowledges "peso- througHP' entity would suffer irreparable harm in the event
<br />of such breach and agrees "pass - through" entity shall be entitled to obtain equitable relief, including
<br />without limitation an injunction, from a court of competent jurisdiction, without restriction or
<br />limitation cf any other rights and remedies available at law or in equity.
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