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:
(1) for Software licensed on a subscription basis, terminate Customer’s license to Use the infringing Software, and refund the prorated Subscription Fees, paid by Customer hereunder for the portion of the Subscription Services that is the subject of the action for the twelve (12) month period of the Subscription Term immediately preceding the breach for which the damages are claimed, regardless of the length of such term, and/or
(2) for Work Product, terminate the license for the infringing Work Product and refund the prorated Professional Services Fees paid for the infringing Work Product, based on a five (5) year period fro...
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 Work Product furnished and Used within the scope of this Professional Services Agreement infringes or misappropriates 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 Work Product outside the scope of the Documentation, (ii) a modification of the Work Product by anyone other than DI or its authorized agent; (iii) the incorporation into the Work Product of any feature or information or Customer Data provided by or requested by Customer; (iv) a combination of the 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 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 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 Work Product so that they are non-infringing; (b) replace the infringing Work Product with non-infringing Work Product which are functionally equivalent; (c) obtain a license for Customer to continue to use the 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 terminate the license for the infringing Work Product and refund the prorated Professional Services Fees paid for the infringing Work Product, based on a five (5) year period from the Effective Date. 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 WORK PRODUCT.
ii) DI will defend, indemnify, and hold the Customer harmless from all Claims and Losses associated with a claim asserted against Customer, arising out of bodily injury (including death) or damage to property or persons that occurs in connection with the performance by DI of its obligations under this Professional Services Agre...
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 i) DI agrees to defend, indemnify, and hold Customer harmless from and against any Claims and Losses brought against Customer alleging that the Work Product furnished and Used within the scope of this Agreement infringes or misappropriates 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 Work Product outside the scope of the Documentation, (ii) a modification of the Work Product by anyone other than DI or its authorized agent; (iii) the incorporation into the Work Product of any feature or information or Customer Data provided by or requested by Customer;
By DI
