HID Global Corporation Software IP Infringement Indemnity Policy
1. Unless expressly provided otherwise in writing in the applicable EULA, software license agreement or other contract document governing the use of the software product (“Software”) in question, this Software IP Infringement Policy applies to all HID, ActivIdentity, Easy Lobby, Lumidigm and Quantum Secure branded Software.
2. This policy covers both end users of the Software and HID Global Corporation (“HID”) authorized distributors of the Software (in each case, an “Indemnitee”).
3. HID will defend each Indemnitee from and against any claim brought by a third party against Indemnitee to the extent such claim alleges that any Software directly infringes any intellectual property rights of such third party (“Claim”), and will pay all costs, damages and expenses (including reasonable legal fees) finally awarded against any Indemnitee by a court of competent jurisdiction or agreed to in a written settlement agreement signed by HID arising out of such Claim; provided that Indemnitee: (i) gives HID prompt written notice upon learning of a Claim or potential Claim; (ii) allows HID to assume sole control of the defense of such Claim and all related settlement negotiations; and (iii) reasonably cooperates with HID, at HID’s request and expense, in the defense or settlement of the Claim, including the provision of all assistance, information and authority reasonably requested by HID. Notwithstanding the foregoing, HID shall have no liability for any claim of infringement based in whole or in part on (a) the use of a superseded or altered release of the Software to the extent that the infringement would have been avoided by the use of a current unaltered release of the Software provided by HID or its affiliates to the Indemnitee, (b) the modification of the Software by anyone other than HID or its authorized agents to the extent that the infringement would have been avoided but for such modification, (c) the use of the Software other than in accordance with the documentation accompanying the Software or the applicable license agreement, (d) the combination of the Software with other software or hardware not provided by HID, where the combination causes the infringement and not the Software standing alone, (e) third party software, including open source software, incorporated in the Software, or (f) product features based on published standards where there was no non-infringing way to implement such standards.
4. Infringement Remedy. If any Software, or any material portion thereof, is held by a court of competent jurisdiction to infringe, or if HID believes that the Software may be subject to a Claim or held to infringe, HID shall, in its discretion and at its expense (i) replace or modify the Software so as to be non-infringing, provided that the replacement Software provides substantially similar functionality; (ii) obtain for Indemnitee a license to continue using the Software; or (iii) if non-infringing product or a license to use the Software cannot be obtained upon commercially reasonable terms, as determined solely by HID, HID may (a) terminate the license for the affected Software (as applicable) and (b) upon return of the Software by Indemnitee or certification of its destruction, refund a pro-rated portion of the license fees or other charges paid by Indemnitee to HID (or its affiliate company) for such Software (for perpetual licenses, as depreciated on a four-year straight-line basis and for term limited licenses, for the unused remainder of the term) and, if applicable, the unused portion of any prepaid support fees that directly relate to such Software. The indemnity provided herein states HID’s and its affiliate companies’ entire liability and Indemnitees’ sole and exclusive remedy for any claim of intellectual property infringement by, or with respect to, the Software.