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) 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 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 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) 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, (viv) 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 (viv) 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 met, we willJCI will defend and/or settle, at our cost and expense, defend any third party claim, suit, action, or proceeding (or at our option, settle“Claim”) any suit brought against youyou (the “Customer Indemnified Party”) alleging that the Service infringes a United States patent or a United States registered copyright of that third party, and JCI will pay all damages and costs (including reasonable attorneys’ fees) (together: “Damages”) finally awarded against youand 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 based on a claim that Our Software directly infringes any duly issued United Statesdefense or settlement of such claim, 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) 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”)and providing JCI reasonable assistance in connection therewith. If the use of Our Software is enjoined, or we believe a claim of infringement under this Section occurs, or if JCI determines a claim is likelylikely to occur, we mayJCI will have the right, at our in its sole option and expensediscretion, to either: (ia) procure for you the right to continue using Our Software as licensed herein; (ii) provide you functionally equivalent, non-infringing softwareto use the Service free of the infringement claim; or (iiib) if neither replace or modify the Service to make it non-infringing, without loss of material functionality. If either of these remedies is not reasonably available to JCI, JCI may, in its sole discretion, immediately terminate this Agreement and refund to you any fees paid for Services not yet provided as of the foregoing termination date. Notwithstanding the foregoing, JCI shall have no obligation with respect to any claim of infringement that is commercially reasonable, terminate based upon or arises out of (the license to “Excluded Claims”): (a) the affected software and refund a portion use or combination of the license fee you paid for that software Service with any hardware, software, products, data, or other materials not provided by us, including your own systems and data; (if anyb) modification or alteration of the Service by anyone other than JCI or its agents; (amortizing that fee on c) your misuse of the Service or use of the Service in excess of the rights granted in this Agreement; (d) use of infringing aspects of the Service after we have provided a straight-line basis over its License Term)non infringing alternative or after we have terminated the agreement, (e) compliance with your designs, specification or instructions, or (f) any Third Party Software. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAWS, THE PROVISIONS OF THIS SECTION 7.4.1 STATES OUR ENTIRE RESPONSIBILITY STATE THE SOLE AND LIABILITY, EXCLUSIVE OBLIGATIONS AND YOUR EXCLUSIVE REMEDY, LIABILITY OF THE JCI PARTIES FOR ANY ACTUAL CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT, MISAPPROPRIATION, OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OTHER VIOLATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS ARISING WITH RESPECT OUT OF OR RELATING TO OUR SOFTWARE AND ANY OTHER ITEMS, PRODUCTS THE SERVICE AND/OR SERVICES PROVIDED HEREUNDERTHIS AGREEMENT.

By Us. Provided Subject to the requirements of Section 7.4.3 (Conditions) are metlimitations in this Section, we willwill defend you from and against any third-party claim alleging that your use of the Software as permitted hereunder infringes upon any U.S. patent, at our expensecopyright or trademark of such third party, defend or misappropriates the trade secret of such third party (or at our optioneach, settle) any suit brought against youan “Infringement Claim”), and we will pay all damages and costs the amount of any loss, damage or expense (including reasonable attorneys’ fees) (together: “Damages”) finally awarded against youby a 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 you (i) promptly notify us in writing upon becoming aware of an Infringement Claim, (ii) gives us sole control of the defense and settlement of the Infringement 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 extent based on a claim that Our Software directly infringes any duly issued United StatesInfringement Claim, Japan and (iv) have not compromised or European Union patent or Berne Convention copyright, or misappropriates any trade secret right of any third partysettled the Infringement Claim without our prior written approval. Notwithstanding the foregoing, we will have no liability or obligation with respect to claims any Infringement Claim that is based upon or Damages arising fromarises out of: (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; (iiiA) the use of Our the Software to practice in combination with any method software or process that does hardware not occur wholly within Our Softwareexpressly authorized by us, (ivB) compliance with your design requirements any modifications or specifications or those of your customerconfigurations made to the Software by anyone other than us without our prior written consent, (vC) the any design specifications requested by you, (D) any 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 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 by 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 Software that is commercially reasonable, terminate outside the license to the affected software and refund a portion scope of the license fee licenses granted herein, and/or (E) any matter for which 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 HEREUNDERare obligated to indemnify us under Section 9.b above.