Intellectual Property Right Infringement

National Master Standing Offer
EZ107-060001/001/VAN to EZ107-060001/006/VAN
Desktop and Network Printers   including Accessories, Supplies and Services

B.20 Intellectual Property Right Infringement

(a) If a third party claims that equipment or software that the Contractor provides under the Contract infringes any intellectual property right, the Contractor, if requested to do so by Canada, will defend Canada against the claim at the Contractor's expense. In this regard, the Contractor will pay all costs, damages and legal fees that a court finally awards, provided that Canada:

(i) promptly notifies the Contractor in writing of the claim;

(ii) co-operates with the Contractor in, and allows the Contractor full participation in, the defence and related settlement negotiations; and

(iii) obtains the Contractor's prior approval to any agreement resulting from settlement negotiations held with the third party.

The Contractor must participate in any claims, action or proceeding arising under Sub-article (a) and no such claim, action or proceeding will be settled without the prior written approval of the Contractor and Canada.

(b) If such a claim is made or appears likely to be made, Canada agrees to permit the Contractor to enable Canada, at the Contractor's expense, to continue to use the equipment or software or to modify or replace it with equipment or software which has published specifications equal or superior to the equipment or software being replaced. If the Contractor determines that none of these alternatives is reasonably available, Canada may elect, at the Contractor's expense, to independently secure the right to continue to use the equipment or software, or Canada may require the Contractor to accept the return of the equipment or software and to refund all monies paid to the Contractor under the Contract for the equipment and software, as well as all amounts paid for services and license and development fees.

(c) The provisions of Sub-articles (a) and (b) do not apply in situations where the Contractor was instructed by Canada to purchase a specific item of equipment or software from a specific source on behalf of Canada. In this case, the Contractor must ensure that its subcontract for the equipment or software states that "If a third party claims that equipment or software that the subcontractor supplies under the Contract infringes any intellectual property right, the subcontractor, if requested to do so by either the Contractor or Canada, will defend the Contractor and Canada against that claim at the subcontractor's expense and will pay all costs, damages and legal fees that a court finally awards." In the event that the Contractor is unable to incorporate this into its subcontract, then it must advise Canada of the situation and not proceed with the subcontract without receiving written notice from Canada that the level of intellectual property right infringement protection is acceptable.

(d) Without prejudice to Canada's right to terminate the Contract for default before completion of the Work, the above represents the Contractor's entire obligation to Canada regarding any claim of infringement.

(e) The Contractor has no obligation regarding any claim based on any of the following:

(i) Canada's unauthorized modification of the equipment or software, or Canada's unauthorized use of the equipment or software in other than its published specified operating environment;

(ii) the combination, operation or use of the equipment or software with any product, data or apparatus that the Contractor did not provide under the Contract, or which combination, operation or use the Contractor did not authorize or approve in advance, if infringement would not have occurred but for such combination, operation or use.