By Forward Networks. Forward Networks will defend any action against End User brought by a third party to the extent the action is based on a claim that the Solution or Documentation directly infringes that third party’s United States patent or copyright or misappropriates such third party’s trade secret (a “Claim”). Forward Networks agrees to pay all damages and costs (including reasonable attorney’s fees) finally awarded against End User by a court of competent jurisdiction that are specifically attributable to the Claim, or those costs and damages agreed to by Forward Networks in a monetary settlement of the Claim. If, in connection with a Claim, the Solution is adjudged to infringe and its use is enjoined by a court of competent jurisdiction, or if Forward Networks reasonably believes that the Solution is or may become the subject of a Claim, then Forward Networks will, at its own expense and at its option: (i) modify the Solution to render it non-infringing while maintaining substantial functional equivalence; (ii) procure for End User the right to continue to use the Solution as permitted under this Agreement; (iii) replace the Solution with a non-infringing product of substantially equivalent function; or (iv) accept return of the Solution and notwithstanding any other provision of this Agreement, terminate the License for the Solution and refund to End User a portion of the Subscription Fee paid for the Solution, prorated to the end of the then-current Subscription Term. Notwithstanding the foregoing, Forward Networks has no obligation under this Section 4.1 or otherwise with respect to any claim based upon: (a) use of the Solution in combination with other products, processes, equipment, data or materials not provided by Forward Networks, if such combination is the cause of the claim; (b) use of any version or release of the Solution other than the most current version or release made available by Forward Networks, if its use would have avoided the infringement; (c) use, reproduction, or distribution of the Solution not in accordance with this Agreement or the Documentation; and (d) any modification of the Solution that is not made by Forward Networks.
By Forward Networks. Forward Networks will defend and hold Customer harmless from any claim against Customer brought by a third party to the extent the action is based on a claim that the Software or Documentation infringes that third party’s intellectual property rights, patent or copyright or misappropriates such third party’s trade secret (a “Claim”). Forward Networks agrees to pay all damages and costs (including reasonable attorney’s fees) finally awarded against Customer by a court of competent jurisdiction that are specifically attributable to the Claim, or those costs and damages agreed to by Forward Networks in a monetary settlement of the Claim. If, in connection with a Claim, the Solution is adjudged to infringe and its use is enjoined by a court of competent jurisdiction, or if Forward Networks reasonably believes that the Solution is or may become the subject of a Claim, then Forward Networks will, at its own expense and at its option: (i) modify the Solution to render it non-infringing while maintaining substantial functional equivalence; (ii) procure for Customer the right to continue to use the Software as permitted under this Agreement; (iii) replace the Software with a non-infringing product of substantially equivalent function; or
