Apple 2003 Annual Report Download - page 108

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11.3 At IBM’s request, Apple will defend any claim that an Item provided by Apple to IBM hereunder infringes a patent, copyright, or
mask work right of a third party in any country in which Apple sells or provides similar Items, products or services based on such Items, or
products which include the Products or output from the Services, and Apple will indemnify and hold IBM harmless from any damages assessed
against IBM as a result of a final judgment of a court of competent jurisdiction, any settlement agreed upon by Apple in writing, and any costs
or fees reasonably incurred by IBM (including but not limited to fees of attorneys and other professionals) that are attributable to such claim;
PROVIDED THAT IBM: (i) promptly notifies Apple, in writing, of the charge of infringement; (ii) allows Apple to control and cooperates
with Apple at Apple’s expense in the defense and any related settlement action; and (iii) upon the written request of Apple, (a) allows Apple to
modify or replace the Items in IBM’s possession at Apple’s expense provided that the modified or replaced Items meet the applicable
specifications for the Items being so modified or replaced (and returns any such Items being so modified or replaced to Apple), or (b) if option
(a) is not reasonably available, returns the Item to Apple provided that Apple pays any costs incurred by IBM in connection with reworking the
Products or Services as a result of the replacement. Such indemnification does not apply to the extent that the claim of infringement arises
from (i) modifications to any Item by IBM unless directed in writing by Apple, (ii) the combination, operation or use of an Item with a product,
data or apparatus not provided by Apple to IBM, unless the Item has no substantial non-infringing use or unless directed in writing by Apple,
(iii) modifications to any Item, Product or Service made by Apple in compliance with IBM’s written specification(s) , (iv) anything IBM
provides that is incorporated into an Item with IBM’s agreement as evidenced by IBM’s execution of the related RTM (as that term is defined
in the ASIC Development Agreement, Agreement No. 000798); (v) Items licensed to IBM pursuant to a separate agreement between the
parties; or (vi) IBM’s use of an Item in a way not expressly permitted by this Agreement or in writing by Apple, which written agreement
would be evidenced by Apple’s execution of the related RTM (as that term is defined in the ASIC Development Agreement, Agreement No.
000798) .
11.4 Reference that Product Sales and Manufacturing Services Agreement, Base Agreement, Agreement No. IMD001 and Section 11.1
thereof, such Section 11.1 is incorporated herein by reference and hereby agreed to extend to and cover, to the extent implicated in that BIAX
litigation (Civil Action No. 01-601-RRM(GMS)(MPT), currently pending in the United States District Court for the District of Delaware and
any related action involving the same patents
[**] = information redacted pursuant to a confidential treatment request. Such omitted information has been filed separately with the Securities
and Exchange Commission.