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• Each party agrees to defend and indemnify the other party on written demand from and against any and all losses, liabilities, damages and expenses (and costs, including, without limitation, reasonable fees for attorneys, disbursements and administrative or court costs) which arise directly from any such claim, action or proceeding, which claims, actions or proceedings result from: (a) use or distribution of Data other than as expressly permitted in this Agreement or in an Order; (b) the knowing infringement of any third-party patents; (c) the gross negligence or willful misconduct; or (d) breach of Section 1.8 .
The indemnified party will have the right, but not the obligation, to participate in (at its own expense) the defense of any such suit or proceeding. Any indemnity under this Agreement shall only apply to the extent that the indemnified party: (a) notifies the indemnifying party within 30 days, in writing, of first learning about any claim or suit relevant to the indemnity; (b) makes no admissions or settlements without the indemnifying party’s prior written consent; (c) allows the indemnifying party complete control over any negotiations or litigation and/or the defen s e or settlement of such suit or claim; and (d) gives the indemnifying party all information and assistance as it may reasonably require. Notwithstanding the foregoing, {P1_Name} will not be liable for or be obligated to defend any claims arising out of or related to: ( i ) changes, alterations or modifications to the {P1_Pro} that have not been requested by {P1_Name} ; (ii) combination of the {P1_Pro} with other equipment, data, documentation, items or products; (iii) use of the {P1_Pro} by Customer in a manner or for a purpose inconsistent with the terms of this Agreement; (iv) failure to use an upgrade or replacement version of the {P1_Pro} when such upgrade or replacement version is made available by {P1_Name} ; or (v) Customer’s negligent acts or omissions.
In the event of a claim, {P1_Name} may, in addition to the foregoing, at its sole option and expense: ( i ) procure for Customer the right to continue using the {P1_Pro} under the terms of this Agreement; (ii) replace or modify the affected {P1_Pro} so that they are non-infringing and substantially equivalent in function; or (iii) if options ( i ) and (ii) above cannot be accomplished despite {P1_Name}’s reasonable efforts, then {P1_Name} may terminate Customer’s rights and {P1_Name} ’s obligations hereunder with respect to the affected {P1_Pro} and refund to Customer a prorated portion of the fees prepaid for such {P1_Pro} .