Common use of By Us Clause in Contracts

By Us. Provided the requirements of Section 7.4.3 (Conditions) are met, we will, at our expense, defend (or at our option, settle) any suit brought against you, and will pay all damages and costs (including reasonable attorneys’ fees) (together: “Damages”) finally awarded against you, to the extent based on a claim 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 Our Software), Third Party Software or a modification to or derivative work of Our Software not made by us; (ii) the combination 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 the use of Our Software is enjoined, or we believe a claim of infringement is likely, we may, at our sole option and expense: (i) procure for you the right to continue using Our Software as licensed herein; (ii) provide you functionally equivalent, non-infringing software; or (iii) if neither of the foregoing is commercially reasonable, terminate the license to the affected software and refund a portion of the license fee you paid for that software (if any) (amortizing that fee on a straight-line basis over its License Term). THIS SECTION 7.4.1 STATES OUR ENTIRE RESPONSIBILITY AND LIABILITY, AND YOUR EXCLUSIVE REMEDY, FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY RIGHTS ARISING WITH RESPECT TO OUR SOFTWARE AND ANY OTHER ITEMS, PRODUCTS OR SERVICES PROVIDED HEREUNDER.

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

By Us. Provided the requirements of Section 7.4.3 (Conditions) are metWe shall defend, we willindemnify and hold You harmless from and against all claims, at our expense, defend (or at our option, settle) any suit brought against you, losses and will pay all damages and costs (including reasonable attorneys’ fees) (together: “Damages”) finally awarded made by a third party against youYou that the Service infringes that third party’s United States intellectual property rights, except to the extent based on such a claim 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 arises from Your misuse 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 Our Software), Third Party Software or a modification to or derivative work of Our Software not made by us; (ii) the combination 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”)Service. If We believe that any portion of the use of Our Software is enjoinedService may be subject to such a claim, or we believe a claim of infringement is likely, we then We may, at our sole option and expense: (i) procure for you You the right to continue using Our Software as licensed hereinthe Service; (ii) provide you functionally equivalentmodify or replace the infringing portions of the Service to allow for continued use, nonor 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-infringing software; or party expressly instructed on Our behalf, (ii) modifications to the Service based upon specifications furnished by You (iii) if neither You and/or any of Your Users’ use of the foregoing is commercially reasonableService other than as specified in this Agreement, terminate the license to Order Form or in the affected software and refund a portion applicable Documentation, (iv) use of the license fee you paid for Service in conjunction with third-party software, hardware, data or any other combination other than that software expressly approved by Us, or (if anyv) (amortizing that fee on a straight-line basis over its License Term)any combination of the foregoing. THIS SECTION 7.4.1 12 STATES OUR ENTIRE RESPONSIBILITY LIABILITY FOR INFRINGEMENT RELATING TO THE SUBJECT MATTER OF THESE TERMS OF SERVICE AND LIABILITYSHALL NOT APPLY DURING ANY TRIAL PERIOD. As a condition to being indemnified You shall promptly notify Us of any claim, AND YOUR EXCLUSIVE REMEDY, FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY RIGHTS ARISING WITH RESPECT TO OUR SOFTWARE AND ANY OTHER ITEMS, PRODUCTS OR SERVICES PROVIDED HEREUNDERand allow Us sole control of the defense and settlement of the claim.