By Fivetran. Fivetran will defend any claims, actions and demands brought by third parties (collectively, “Claims”) against Customer to the extent that] the third party expressly asserts that the Fivetran Product (excluding Customer Data) infringes such third party’s trademark, issued patent, or copyright, or Fivetran misappropriated such third party’s trade secrets in the development of the Fivetran Product (a “Fivetran IP Claim”). Fivetran will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Fivetran) in connection with any such Fivetran IP Claim. The foregoing obligations do not apply with respect to portions or components of the Fivetran Product (i) made in whole or in part in accordance with Customer specifications, (ii) in the case of On-Prem Software, that are modified by or on behalf of Customer after delivery by Fivetran, (iii) that are combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) in the case of On-Prem Software, where Customer continues the allegedly infringing activity after being notified thereof or after being provided an update that would have avoided the alleged infringement, or (v) where Customer’s use of the Fivetran Product is not strictly in accordance with this Agreement. If the use of the Fivetran Product by Customer has become, or in Fivetran’s opinion is likely to become, the subject of any Fivetran IP Claim, Fivetran may, at its option and expense (x) replace or modify the Fivetran Product to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality, (y) obtain for Customer a license to continue using the Fivetran Product, or (z) if neither of the foregoing is commercially practicable, terminate this Agreement or the applicable Order Form and provide Customer a pro rata refund of any prepaid subscription fees equal to the terminated portion of the applicable subscription term.
By Fivetran. Fivetran will defend or settle any claims, actions and demands brought by third parties against Customer and Customers subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys and agents (collectively Indemnified Parties) where the third party expressly asserts that the Software:infringes such third partys trademark or copyright arising under the laws of the United States, orFivetran misappropriated such third partys trade secrets in the development of the Software (collectively, Claims). Customer must give written notice of the Claim to Fivetran promptly after Customer becomes aware of the Claim, and Fivetrans indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by this failure to give notice. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Fivetran, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Fivetran or combined with other products, processes or materials where the alleged infringement relates to such combination,
