Common use of By NWEA Clause in Contracts

By NWEA. If all the conditions in this section are met, NWEA shall (i) defend Subscriber against claims made by an unaffiliated third party that the Assessment System infringes its US patent, copyright, or trademark; and (ii) pay the amount of any resulting adverse final judgment against Subscriber (after any appeals) or settlement to which NWEA consents. Subscriber must notify NWEA promptly in writing of the claim. Subscriber must also give NWEA sole control over its defense and settlement. Subscriber shall provide NWEA with reasonable assistance in defending the claim. NWEA’s obligations under this Section will not apply to the extent the claim (or adverse final judgment) is based on: (a) Subscriber using the Assessment System after NWEA has informed Subscriber to discontinue use due to such a claim; (b) the combination or use of the Assessment System with non-NWEA information, data, or materials except as otherwise authorized in writing by NWEA; (c) modification of the Assessment System except as otherwise authorized in writing by NWEA; (d) use of NWEA’s trademark(s) without express written permission; or (e) Subscriber’s acts or omissions which result in a claim under this Section. If NWEA receives information about a claim under this Section related to the Assessment System in whole or in part, NWEA may do any of the following, at its discretion and expense: (i) procure the right to continue its use; (ii) replace the infringing portion of the Assessment System with a functional equivalent; (iii) modify the infringing portion of the Assessment System to make it non-infringing (if NWEA does this, Subscriber will stop using the allegedly infringing portion of the Assessment System immediately); or (iv) terminate this Agreement. Notwithstanding anything to the contrary, NWEA’s commitment under this Section is Subscriber’s exclusive remedy for third-party infringement and trade secret misappropriation claims. Nothing in this section obligates NWEA to indemnify Subscriber from and against any claims, suits, actions, losses, damages, liabilities, costs and expenses attributable to the acts or omissions of Subscriber, its officers, employees, or agents.

By NWEA. If all the conditions in this section are met, NWEA shall (i) defend Subscriber against claims made by an unaffiliated third party that the Assessment System infringes its US patent, copyright, or trademark; and (ii) pay the amount of any resulting adverse final judgment against Subscriber (after any appeals) or settlement to which NWEA consents. Subscriber must notify NWEA promptly in writing of the claim. Subscriber must also give NWEA sole control over its defense and settlement. Subscriber shall provide NWEA with reasonable assistance in defending the claim. NWEA’s 's obligations under this Section will not apply to the extent the claim (or adverse final judgment) is based on: (a) Subscriber using the Assessment System after NWEA has informed Subscriber to discontinue use due to such a claim; (b) the combination or use of the Assessment System with non-NWEA information, data, or materials except as otherwise authorized in writing by NWEA; (c) modification of the Assessment System except as otherwise authorized in writing by NWEA; (d) use of NWEA’s 's trademark(s) without express written permission; or (e) Subscriber’s 's acts or omissions which result in a claim under this Section. If NWEA receives information about a claim under this Section related to the Assessment System in whole or in part, NWEA may do any of the following, at its discretion and expense: (i) procure the right to continue its use; (ii) replace the infringing portion of the Assessment System with a functional equivalent; (iii) modify the infringing portion of the Assessment System to make it non-infringing (if NWEA does this, Subscriber will stop using the allegedly infringing portion of the Assessment System immediately); or (iv) terminate this Agreement. Notwithstanding anything to the contrary, NWEA’s 's commitment under this Section is Subscriber’s 's exclusive remedy for third-party infringement and trade secret misappropriation claims. Nothing in this section obligates NWEA to indemnify Subscriber from and against any claims, suits, actions, losses, damages, liabilities, costs and expenses attributable to the acts or omissions of Subscriber, its officers, employees, or agents.

By NWEA. If all the conditions in this section are metSubject to Section 21, NWEA shall (i) defend Subscriber against any claims made by an unaffiliated third party that the Assessment System Software infringes its US patent, copyright, or trademark; and (ii) pay the amount of any resulting adverse final judgment against Subscriber (after any appeals) or settlement to which NWEA consents. Subscriber must notify NWEA promptly in writing of the claim. Subscriber must also give NWEA sole control over its defense and or settlement. Subscriber shall agrees to provide NWEA with reasonable assistance in defending the claim. NWEA’s obligations under this Section will not apply to the extent the claim (or adverse final judgment) is based on: (ai) Subscriber using the Assessment System Software after NWEA has informed Subscriber to discontinue use due to such a claim; (bii) the combination or use of the Assessment System Software with non-NWEA information, data, or materials except (other than as otherwise authorized in writing by NWEAcontemplated under this Agreement); (ciii) modification of the Assessment System except Software other than as otherwise authorized in writing contemplated by NWEAthis Agreement; or (div) use of NWEA’s or OECD’s trademark(s) without express written permission; or (e) Subscriber’s acts or omissions which result in a claim under this Section. If NWEA receives information about a claim under this Section related to the Assessment System in whole or in partSoftware, NWEA may do any of the following, at its discretion our expense and expensewithout obligation to do so: (i) procure the right to continue its use; (ii) replace the infringing portion of the Assessment System it with a functional equivalent; (iii) modify the infringing portion of the Assessment System it to make it non-infringing (if NWEA does this, Subscriber will stop using the allegedly infringing portion of the Assessment System Software immediately); or (iv) terminate this Agreement. Notwithstanding anything to the contrary, NWEA’s commitment under this Section is Subscriber’s exclusive remedy for third-party infringement and trade secret misappropriation claims. Nothing in this section Section 22.2 obligates NWEA to indemnify Subscriber from and against any claims, suits, actions, losses, damages, liabilities, costs and expenses attributable to the acts or omissions of Subscriber, its officers, employees, employees or agents.