Common use of By Us Clause in Contracts

By Us. We shall defend, indemnify and hold You harmless from and against all claims, losses and damages (including reasonable attorneys’ fees) made by a third party against You that the Service infringes that third party’s United States intellectual property rights, except to the extent such a claim arises from Your misuse of the Service. If We believe that any portion of the Service may be subject to such a claim, then We may, at our sole option and expense: (i) procure for You the right to continue using the Service; (ii) modify or replace the infringing portions of the Service to allow for continued use, or if these alternatives are not commercially reasonable, refund any unused, prepaid Fees and terminate this Agreement. Notwithstanding the foregoing, the Our indemnification obligations set forth in this Section 12(a) do not apply to, and We will have no obligation to You for, any claim that arises from (i) modifications to the Service by anyone other than Us or a third-party expressly instructed on Our behalf, (ii) modifications to the Service based upon specifications furnished by You (iii) You and/or any of Your Users’ use of the Service other than as specified in this Agreement, the Order Form or in the applicable Documentation, (iv) use of the Service in conjunction with third-party software, hardware, data or any other combination other than that expressly approved by Us, or (v) any combination of the foregoing. THIS SECTION 12 STATES OUR ENTIRE LIABILITY FOR INFRINGEMENT RELATING TO THE SUBJECT MATTER OF THESE TERMS OF SERVICE AND SHALL NOT APPLY DURING ANY TRIAL PERIOD. As a condition to being indemnified You shall promptly notify Us of any claim, and allow Us sole control of the defense and settlement of the claim.

By Us. We shall defendProvided the requirements of Section 7.4.3 (Conditions) are met, indemnify we will, at our expense, defend (or at our option, settle) any suit brought against you, and hold You harmless from will pay all damages and against all claims, losses and damages costs (including reasonable attorneys’ fees) made by a third party (together: “Damages”) finally awarded against You that the Service infringes that third party’s United States intellectual property rightsyou, except to the extent such based on a claim arises that Our Software directly infringes any duly issued United States, Japan or European Union patent or Berne Convention copyright, or misappropriates any trade secret right of any third party. Notwithstanding the foregoing, we will have no liability or obligation with respect to claims or Damages arising from: (i) Your Software (to the extent it differs from Your misuse Our Software), Third Party Software or a modification to or derivative work of Our Software not made by us; (ii) the Servicecombination or use of Our Software with anything other than a Component; (iii) the use of Our Software to practice any method or process that does not occur wholly within Our Software, (iv) compliance with your design requirements or specifications or those of your customer, (v) the use of other than the then-current release of Our Software, or (vi) your continuation of allegedly infringing activity after being notified thereof (each, an “Excluded Claim”). If We the use of Our Software is enjoined, or we believe that any portion a claim of the Service may be subject to such a claiminfringement is likely, then We we may, at our sole option and expense: (i) procure for You you the right to continue using the ServiceOur Software as licensed herein; (ii) modify provide you functionally equivalent, non-infringing software; or replace the infringing portions (iii) if neither of the Service to allow for continued use, or if these alternatives are not foregoing is commercially reasonable, refund any unused, prepaid Fees and terminate this Agreement. Notwithstanding the foregoing, the Our indemnification obligations set forth in this Section 12(a) do not apply to, and We will have no obligation to You for, any claim that arises from (i) modifications license to the Service by anyone other than Us or affected software and refund a third-party expressly instructed on Our behalf, (ii) modifications to the Service based upon specifications furnished by You (iii) You and/or any of Your Users’ use portion of the Service other than as specified in this Agreement, the Order Form or in the applicable Documentation, license fee you paid for that software (ivif any) use of the Service in conjunction with third(amortizing that fee on a straight-party software, hardware, data or any other combination other than that expressly approved by Us, or (v) any combination of the foregoingline basis over its License Term). THIS SECTION 12 7.4.1 STATES OUR ENTIRE LIABILITY RESPONSIBILITY AND LIABILITY, AND YOUR EXCLUSIVE REMEDY, FOR ANY ACTUAL OR ALLEGED INFRINGEMENT RELATING OR MISAPPROPRIATION OF ANY THIRD PARTY RIGHTS ARISING WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS OF SERVICE OUR SOFTWARE AND SHALL NOT APPLY DURING ANY TRIAL PERIOD. As a condition to being indemnified You shall promptly notify Us of any claimOTHER ITEMS, and allow Us sole control of the defense and settlement of the claimPRODUCTS OR SERVICES PROVIDED HEREUNDER.

By Us. We shall defendProvided the requirements of Section 7.4.3 (Conditions) are met, indemnify we will, at our expense, defend (or at our option, settle) any suit brought against you, and hold You harmless from will pay all damages and against all claims, losses and damages costs (including reasonable attorneys’ fees) made by a third party (together: “Damages”) finally awarded against You that the Service infringes that third party’s United States intellectual property rightsyou, except to the extent such based on a claim arises that Our Software directly infringes any duly issued United States, Japan or European Union patent or Berne Convention copyright, or misappropriates any trade secret right of any third party. Notwithstanding the foregoing, we will have no liability or obligation with respect to claims or Damages arising from: (i) Your Software (to the extent it differs from Your misuse Our Software), Third Party Software or a modification to or derivative work of Our Software not made by us; (ii) the Servicecombination or use of Our Software with anything other than a Component; (iii) compliance with your design requirements or specifications or those of your customer, (iv) the use of other than the then-current release of Our Software, to the extent that such other than the then current release is infringing and from the day that we advised you that use of a prior version reasonably could be infringing, or (v) your continuation of allegedly infringing activity after being notified thereof and provided a non-infringing version (each, an “Excluded Claim”). If We the use of Our Software is enjoined, or we believe that any portion a claim of the Service may be subject to such a claiminfringement is likely, then We we may, at our sole option and expense: (i) procure for You you the right to continue using the ServiceOur Software as licensed herein; (ii) modify provide you functionally equivalent, non-infringing software; or replace the infringing portions (iii) if neither of the Service to allow for continued use, or if these alternatives are not foregoing is commercially reasonable, refund any unused, prepaid Fees and terminate this Agreement. Notwithstanding the foregoing, the Our indemnification obligations set forth in this Section 12(a) do not apply to, and We will have no obligation to You for, any claim that arises from (i) modifications license to the Service by anyone other than Us or affected software and refund a third-party expressly instructed on Our behalf, (ii) modifications to the Service based upon specifications furnished by You (iii) You and/or any of Your Users’ use portion of the Service other than as specified in this Agreement, the Order Form or in the applicable Documentation, license fee you paid for that software (ivif any) use of the Service in conjunction with third(amortizing that fee on a straight-party software, hardware, data or any other combination other than that expressly approved by Us, or (v) any combination of the foregoingline basis over its License Term). THIS SECTION 12 7.4.1 STATES OUR ENTIRE LIABILITY RESPONSIBILITY AND LIABILITY, AND YOUR EXCLUSIVE REMEDY, FOR ANY ACTUAL OR ALLEGED INFRINGEMENT RELATING OR MISAPPROPRIATION OF ANY THIRD PARTY RIGHTS ARISING WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS OF SERVICE OUR SOFTWARE AND SHALL NOT APPLY DURING ANY TRIAL PERIOD. As a condition to being indemnified You shall promptly notify Us of any claimOTHER ITEMS, and allow Us sole control of the defense and settlement of the claimPRODUCTS OR SERVICES PROVIDED HEREUNDER.

By Us. We shall defendJCI will defend and/or settle, indemnify at our cost and hold You harmless from and against all claimsexpense, losses and damages (including reasonable attorneys’ fees) made by a any third party claim, suit, action, or proceeding (“Claim”) brought against You you (the “Customer Indemnified Party”) alleging that the Service infringes a United States patent or a United States registered copyright of that third party’s United States intellectual property rights, except and JCI will pay all damages finally awarded and settlement amounts entered into by us on your behalf related to a covered Claim. The foregoing indemnification obligation of JCI is contingent upon you promptly notifying JCI in writing of such claim, permitting JCI sole authority to control the extent defense or settlement of such claim, and providing JCI reasonable assistance in connection therewith. If a claim arises from Your misuse of infringement under this Section occurs, or if JCI determines a claim is likely to occur, JCI will have the Service. If We believe that any portion of the Service may be subject right, in its sole discretion, to such a claim, then We may, at our sole option and expenseeither: (ia) procure for You you the right to continue using to use the ServiceService free of the infringement claim; or (iib) replace or modify or replace the infringing portions of the Service to allow for continued usemake it non-infringing, or if without loss of material functionality. If either of these alternatives are remedies is not commercially reasonablereasonably available to JCI, refund any unusedJCI may, prepaid Fees and in its sole discretion, immediately terminate this AgreementAgreement and refund to you any fees paid for Services not yet provided as of the termination date. Notwithstanding the foregoing, the Our indemnification obligations set forth in this Section 12(a) do not apply to, and We will JCI shall have no obligation with respect to You for, any claim of infringement that is based upon or arises from out of (ithe “Excluded Claims”): (a) modifications to the use or combination of the Service with any hardware, software, products, data, or other materials not provided by us, including your own systems and data; (b) modification or alteration of the Service by anyone other than Us JCI or a third-party expressly instructed on Our behalf, its agents; (iic) modifications to the Service based upon specifications furnished by You (iii) You and/or any of Your Users’ use your misuse of the Service other than as specified in this Agreement, the Order Form or in the applicable Documentation, (iv) use of the Service in conjunction excess of the rights granted in this Agreement; (d) use of infringing aspects of the Service after we have provided a non infringing alternative or after we have terminated the agreement, (e) compliance with third-party softwareyour designs, hardware, data specification or any other combination other than that expressly approved by Usinstructions, or (vf) any combination of the foregoingThird Party Software. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAWS, THE PROVISIONS OF THIS SECTION 12 STATES OUR ENTIRE STATE THE SOLE AND EXCLUSIVE OBLIGATIONS AND LIABILITY OF THE JCI PARTIES FOR INFRINGEMENT ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT, MISAPPROPRIATION, OR OTHER VIOLATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS ARISING OUT OF OR RELATING TO THE SUBJECT MATTER OF THESE TERMS OF SERVICE AND SHALL NOT APPLY DURING ANY TRIAL PERIOD. As a condition to being indemnified You shall promptly notify Us of any claim, and allow Us sole control of the defense and settlement of the claimAND/OR THIS AGREEMENT.

By Us. We shall defendSubject to the limitations in this Section, indemnify and hold You harmless we will defend you from and against all claimsany third-party claim alleging that your use of the Software as permitted hereunder infringes upon any U.S. patent, losses copyright or trademark of such third party, or misappropriates the trade secret of such third party (each, an “Infringement Claim”), and damages we will pay the amount of any loss, damage or expense (including reasonable attorneys’ fees) made finally awarded by a third party against You court of competent jurisdiction or paid in accordance with a settlement agreement signed by you in connection with such Infringement Claim, in each case provided that the Service infringes that third party’s United States intellectual property rights, except to the extent such a claim arises from Your misuse of the Service. If We believe that any portion of the Service may be subject to such a claim, then We may, at our sole option and expense: you (i) procure for You the right to continue using the Service; (ii) modify or replace the infringing portions promptly notify us in writing upon becoming aware of the Service to allow for continued use, or if these alternatives are not commercially reasonable, refund any unused, prepaid Fees and terminate this Agreement. Notwithstanding the foregoing, the Our indemnification obligations set forth in this Section 12(a) do not apply to, and We will have no obligation to You for, any claim that arises from (i) modifications to the Service by anyone other than Us or a third-party expressly instructed on Our behalfan Infringement Claim, (ii) modifications to the Service based upon specifications furnished by You (iii) You and/or any of Your Users’ use of the Service other than as specified in this Agreement, the Order Form or in the applicable Documentation, (iv) use of the Service in conjunction with third-party software, hardware, data or any other combination other than that expressly approved by Us, or (v) any combination of the foregoing. THIS SECTION 12 STATES OUR ENTIRE LIABILITY FOR INFRINGEMENT RELATING TO THE SUBJECT MATTER OF THESE TERMS OF SERVICE AND SHALL NOT APPLY DURING ANY TRIAL PERIOD. As a condition to being indemnified You shall promptly notify Us of any claim, and allow Us gives us sole control of the defense and settlement of the claimInfringement Claim (provided that we may not settle any such Infringement Claim that imposes liability on or contains any admission of fault by you without your consent, not to be unreasonably withheld), (iii) provide us (at our sole cost and expense) with all available information and reasonable assistance necessary for us to defend or settle the Infringement Claim, and (iv) have not compromised or settled the Infringement Claim without our prior written approval. Notwithstanding the foregoing, we will have no liability or obligation with respect to any Infringement Claim that is based upon or arises out of: (A) the use of the Software in combination with any software or hardware not expressly authorized by us, (B) any modifications or configurations made to the Software by anyone other than us without our prior written consent, (C) any design specifications requested by you, (D) any use by you of the Software that is outside the scope of the licenses granted herein, and/or (E) any matter for which you are obligated to indemnify us under Section 9.b above.