Common use of By BlueSnap Clause in Contracts

By BlueSnap. BlueSnap will defend, indemnify and hold Merchant and its affiliates, directors, officers, employees, and agents harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings made or brought by a third party (“Claim(s)”) against Merchant alleging that the use of the Services as contemplated hereunder infringes the intellectual property rights of a third party; provided that for the above Merchant (a) promptly gives written notice of the Claim to BlueSnap; (b) gives BlueSnap sole control of the defense and settlement of the Claim; and (c) provides to BlueSnap, at BlueSnap’s cost, all reasonable assistance requested by BlueSnap. The foregoing indemnity will not apply to any third party claim that arises solely from Merchant’s use, operation or combination of the Services with non BlueSnap programs, data or equipment, modifications or alterations not made or authorized by BlueSnap, or Merchant’s breach of this Agreement or willful misconduct. In the event that BlueSnap determines that the Services or any component of the Services might infringe the intellectual property rights of a third party, BlueSnap will have the right, at BlueSnap’s option and expense, to: (i) procure for Merchant, at no cost to Merchant, the rights necessary to continue exercising such rights; or (ii) replace or modify the infringing portion of the Services so that it no longer infringes or misappropriates the third party’s rights, provided the replacement has substantially equivalent functionality, or (iii) terminate this Agreement. The provisions of this Section 9.1 state the sole, exclusive and entire liability of BlueSnap, and the sole, exclusive and entire remedy of Merchant, with respect to any claim of patent, copyright, trade secret, trademark or other Intellectual Property infringement by the Services.