JC: What's here (and unusual--and VERY GOOD for NEOM IMO) is that FCB is doing most of the indemnifying vice NEOM. NEOM only agrees to do what it's been doing re protecting it's IP and agreeing not to violate another's patent(s). (And, as far as agreement termination, with or without cause, there is nothing unusual about the terms there either--very common IMO.)
"14. INDEMNIFICATION
14.1 Indemnification for Performance.
Partner shall indemnify, defend and hold NeoMedia, its shareholders, directors,
officers, employees, representatives, dealers, Partners and assignees harmless
against any claims arising out of performance by Partner or its employees and
contractors of its or their duties or the exercise of its or their rights
pursuant to this Agreement and pursuant to any agreement with such third parties
provided that Partner: (i) is promptly informed and furnished a copy of each
communication, notice or other action relating to the alleged infringement, (ii)
is given authority, information and assistance necessary to settle, compromise
or litigate said suit or proceeding, and (iii) no settlement of any suit is made
without the express permission of Partner, which shall not be unreasonably
withheld. For purposes of this indemnification, "claims" means and includes all
obligations, such as taxes in connection with business conducted or sales made
by the Partner or its third parties, or actual damages, such as accountants',
attorneys' and expert witness fees, costs of investigation and proof of facts,
court costs, other litigation expenses, travel and living expenses. This
indemnity shall continue in effect even after, and notwithstanding this
Agreement's expiration or termination.
14.2 Third Party Rights. Partner hereby agrees to indemnify, defend and hold
harmless NeoMedia, its affiliates and their shareholders, directors, officers,
employees, representatives, dealers, partners, vendors, consultants and
assignees; against any liability for any claims of any type whatsoever that the
actions of Partner violated any third party rights, including but not limited to
infringement of any copyright, invasion of privacy or violation of any other
right of any third party or any actions arising from or related to the subject
matter, text, graphics, or other content or material on or associated with the
web content linked by Partner provided that Partner: (i) is promptly informed
and furnished a copy of each communication, notice or other action relating to
the alleged infringement, (ii) is given authority, information and assistance
necessary to settle, compromise or litigate said suit or proceeding, and (iii)
no settlement of any suit is made without the express permission of Partner,
which shall not be unreasonably withheld.
14.3 Insurance. No insurance is required by Partner to act on behalf of
NeoMedia.
14.4 Indemnification for Infringement.
(a) Deferral and Payment of Settlements. NeoMedia shall defend any suit or
proceeding brought against the Partner insofar as such suit or proceeding
is based on a claim that Product as furnished by it to Partner constitutes
infringement of any issued United States patent, copyright, or trade
secret, and NeoMedia shall pay all settlements and costs against Partner,
subject to the limitation of liability set forth herein, and provided that
NeoMedia: (i) is promptly informed and furnished a copy of each
communication, notice or other action relating to the alleged
infringement, (ii) is given authority, information and assistance
necessary to settle, compromise or litigate said suit or proceeding, and
(iii) no settlement of any suit is made without the express permission of
NeoMedia, which shall not be unreasonably withheld. This indemnity shall
continue in effect even after, and notwithstanding this Agreement's
expiration or termination.
<PAGE>
(b) Alternative Benefits. If Licensed Product is held in any such suit to
infringe and the use of the Product is enjoined, or in the case of a
settlement as described above, NeoMedia shall have the option, at its own
expense, to (i) procure for Partner the right to continue using Product,
(ii) replace same with a non-infringing Product of substantially similar
functionality, (iii) modify same to make it non-infringing, or (iv) refund
the cost of the affected Product, and accept the return of same."
