By DI i) DI agrees to defend, indemnify, and hold Customer harmless from and against any third party claims brought against Customer alleging that the Software or Work Product furnished and Used within the scope of this Master Agreement infringe or misappropriate a U.S. patent, copyright, trademark or trade secret of a third party, and will pay all final judgments awarded or settlements entered into on such claims. The foregoing indemnity obligation shall not extend to any claims of infringement arising out of or related to (i) use of the Software or Work Product outside the scope of the Documentation, (ii) a modification of the Software or Work Product by anyone other than DI or its authorized agent; (iii) the incorporation into the Software or Work Product of any feature or information or Customer Data provided by or requested by Customer; (iv) a combination of the Software or Work Product with any third party software or equipment not specified in the Documentation, where such combination is the cause of such infringement; or (v) the use of a version of the Software or Work Product other than the then-current version made available to Customer, if the infringement would have been avoided by use of the then-current version and Customer has been made aware of this fact by DI. In the event the Software or Work Product are held or are believed by DI to infringe, DI will, at its sole option and expense, choose to (a) modify the infringing Software or Work Product so that they are non-infringing; (b) replace the infringing Software or Work Product with non-infringing Software or Work Product which are functionally equivalent; (c) obtain a license for Customer to continue to use the Software or Work Product as provided hereunder at no cost to Customer; or if none of (a), (b), or (c) is commercially reasonable, then (d) DI will do the following:
By DI i) DI agrees to defend, indemnify, and hold Customer harmless from and against any third party claims brought against Customer alleging that the Subscription Services, Software and/or the DI Platform furnished and Used within the scope of this Agreement infringe or misappropriate a U.S. patent, copyright, trademark or trade secret of a third party, and will pay all final judgments awarded or settlements entered into on such claims. The foregoing indemnity obligation shall not extend to any claims of infringement arising out of or related to (i) Use of the Subscription Services and/or Software outside the scope of the Documentation; (ii) a combination of the Subscription Services and/or Software with any third party software or equipment not specified in the Documentation, where such combination is the cause of such infringement; or (iii) the Use of a version of the Subscription Services and/or Software other than the then-current version made available to Customer, if the infringement would have been avoided by Use of the then-current version and Customer has been made aware of this fact by DI; or (iv) any Customer Data. In the event the Subscription Services and/or the Software are held or are believed by DI to infringe, DI will, at its sole option and expense, choose to (a) modify the infringing Subscription Services and/or the Software so that they are non- infringing; (b) replace the infringing Subscription Services and/or Software with non-infringing Subscription Services and/or the Software which are functionally equivalent; (c) obtain a license for Customer to continue to Use the Subscription Services and/or the Software as provided hereunder at no additional cost to Customer; or if none of (a), (b), or (c) is commercially reasonable, then (d) terminate the applicable Quote or the Customer’s rights to Use the infringing Subscription Services and/or Software and refund the Customer a prorated amount of any Subscription Services Fees prepaid for the infringing Subscription Services and/or Software for the unused portion of the then- current Subscription Services Term. THIS SECTION STATES THE ENTIRE LIABILITY AND OBLIGATION OF DI AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND RECOURSE WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY’S RIGHTS BY THE SUBSCRIPTION SERVICES OR SOFTWARE.
By DI. DI shall defend and/or settle any claims, suits, actions or proceedings (collectively, a "Claim") brought by any third party against Partner that allege: (i) a breach of any of DI's warranties in Article IX herein; (ii) that the DI Interface, the DI System or the Demo Software infringes their copyright, trademark or patent rights; or (iii) a breach of DI's obligations under Section 8.1 herein. DI's obligations under this Section 10.1 shall be subject to Partner providing DI with: (i) sole control of any Claim and any settlement negotiations; (ii) prompt written notice of the Claim; and (iii) full information and cooperation and reasonable assistance, at DI's expense (excluding compensation for time of personnel) in connection with the defense and/or settlement of the Claim. Subject to the foregoing, DI shall promptly pay any settlement or final judgment entered against Partner to the extent such settlement or judgment is based upon such a Claim. Notwithstanding any provision to the contrary stated herein, DI will not be liable for any infringement based on or a claim arising out of (a) a modification of the DI System, DI Services, DI Interface or the Demo Software; (b) a modification of the DI Marks or DI Technology by any party other than DI; or (c) the combination of the DI Marks or DI Technology with other software, items or processes not furnished by DI if such infringement or loss would have been avoided by the use of the DI Marks or DI Technology alone. NOTWITHSTANDING SECTION 8.1.5, THE FOREGOING OBLIGATIONS CONSTITUTE DI'S SOLE LIABILITY AND PARTNER'S SOLE REMEDY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS RELATING TO THE DI SERVICES, DI TECHNOLOGY OR DI MARKS.
By DI
