Alert Logic IP Infringement Indemnification. Alert Logic shall defend, indemnify and hold Customer harmless against any loss or damage incurred in connection with any claim, suit, action or proceeding (each, an “Action”) brought against Customer or any of its affiliates by a third party contending that Customer’s use of the Services, or any part thereof, infringes upon a U.S. copyright or U.S. patent of such third party. Subject to Section 10.2, Alert Logic shall pay any damages finally awarded to such third party by a court of competent jurisdiction or final binding arbitration resulting from such Action or agreed to by Alert Logic in settlement of the Action in Alert Logic’s sole discretion. In the event that the Services or any part thereof are likely to, in Alert Logic’s sole opinion, or do become the subject of an infringement related Action, and Alert Logic cannot, at its option and expense, procure for Customer the right to continue using the Services, or any part thereof, or modify the Services, or any part thereof, to make them non-infringing, then Alert Logic may terminate the Services and provide Customer with a pro rata refund of the fees paid for the terminated portion of the then-current Subscription Term. The above defense and indemnification obligations shall not apply for any Action or demand arising from: (i) use of the Services not in accordance with this Agreement; (ii) an allegation that does not state with specificity that the Services are the basis of the Actions; (iii) the use or combination of the Services or any part thereof with software, hardware, or other materials not developed by Alert Logic if the Services or use thereof would not infringe without such combination; (iv) modification of the Services by a party other than Alert Logic, if the use of unmodified Services would not constitute infringement; (v) Customer's failure to install an enhancement provided at no additional charge that would have avoided the alleged infringement; (vi) open source software or third party services; (vii) an allegation of infringement deriving from Customer’s general use or exploitation of the Internet; (viii) an Action against Customer that arises from Customer’s breach of this Agreement or any applicable Order Form; or (ix) an allegation made against Customer prior to the execution of this Agreement or any allegation based upon actions taken by Customer prior to the execution of this Agreement, or relating to any patent that, prior to the execution of this Agreement, Customer was aware ...
Alert Logic IP Infringement Indemnification. Alert Logic shall defend, indemnify and hold Customer harmless against any loss or damage incurred in connection with any claim, suit, action or proceeding (each, an “Action”) brought against Customer by a third party contending that Customer’s use of the Services, or any part thereof, infringes upon a U.S. copyright or U.S. patent of such third party. Subject to Section 8.2, Alert Logic shall pay any damages finally awarded to such third party by a court of competent jurisdiction or final binding arbitration resulting from such Action or agreed to by Alert Logic in settlement of the Action in Alert Logic’s sole discretion. In the event that the Services or any part thereof become or in Alert Logic’s sole opinion are likely to become the subject of an infringement related Action and Alert Logic cannot, at its option and expense, procure for Customer the right to continue using the Services (or any part thereof) or modify the Services (or any part thereof) to make them non-infringing, then Alert Logic may terminate this Agreement and in such case will refund any fees received for the unused portion of the then-current Subscription Term. The above defense and indemnification obligations shall not apply for any Action or demand arising from: (i) use of the Services not in accordance with this Agreement; (ii) an allegation that does not state with specificity that the Services are the basis of the Action;
Alert Logic IP Infringement Indemnification. Alert Logic shall indemnify, defend and hold harmless End User (at Alert Logic's expense) against any Action against End User or any of its affiliates alleging that the Alert Logic Technology, or any part thereof, or the use thereof, infringe upon a copyright, patent or trade secret of such third party. Alert Logic shall pay any damages finally awarded to such third party by a court of competent jurisdiction resulting from such claim or suit. If the Alert Logic Technology, or any part thereof, are held to infringe a copyright or patent or result from the misappropriation of a trade secret, or in Alert Logic 's sole discretion, are likely to infringe a copyright or patent or resulted from the misappropriation of a trade secret, Alert Logic (at Alert Logic 's sole option) shall (a) procure for End User the right to continue using the Alert Logic Technology; (b) replace or modify the Alert Logic Technology with technology having substantially similar functionality; or (c) refund to End User the unearned portion of any fee paid by End User for use of the Alert Logic Technology through the Services, provided that End User’s use of the Services (and the Alert Logic Technology) is terminated. Alert Logic will have no responsibility under this Section to the extent the Action arises from: (i) modification of the Alert Logic Technology not carried out by Alert Logic or at its direction; (ii) End User's failure to install an enhancement provided at no additional charge that would have avoided the alleged infringement; (iii) failure to use the Alert Logic Technology in accordance with the documentation; or (iv) combination of the Alert Logic Technology with technology not provided, authorized or recommended by Alert Logic in writing, unless the Alert Logic Technology were designed to be used in such combination.
Alert Logic IP Infringement Indemnification. Alert Logic shall defend, indemnify and hold End User harmless against any loss or damage incurred in connection with any claim, suit, action or proceeding (each, an “Action”) brought against End User or any of its affiliates by a third party contending that End User’s use of the Services, or any part thereof, infringes upon a U.S. copyright or U.S. patent of such third party. Subject to Section 15, Alert Logic shall pay any damages finally awarded to such third party by a court of competent jurisdiction or final binding arbitration resulting from such Action or agreed to by Alert Logic in settlement of the Action in Alert Logic’s sole discretion. In the event that the Services or any part thereof are likely to, in Alert Logic’s sole opinion, or do become the subject of an infringement related Action, and Alert Logic cannot, at its option and expense, procure for End User the right to continue using the Services, or any part thereof, or modify the Services, or any part thereof, to make them non-infringing, then Alert Logic may terminate the Services and provide End User with a pro rata refund of the fees paid for the terminated portion of the then-current Subscription Term. The above defense and indemnification obligations shall not apply for any Action or demand arising from: (i) use of the Services not in accordance with this XXXX; (ii) an allegation that does not state with specificity that the Services are the basis of the Actions; (iii) the use or combination of the Services or any part thereof with software, hardware, or other materials not developed by Alert Logic if the Services or use thereof would not infringe without such combination;
