Converge Sample Clauses

Converge. Comverge shall indemnify and hold harmless WR Parties from and against all amounts payable to Third Parties in respect of, and all costs and expenses (including reasonable attorney’s fees and costs and expenses incurred in establishing a right to indemnity hereunder) incurred in connection with, Claims brought by or on behalf of a Third Party for willful infringement or misappropriation by Comverge of any patent, trade secret or any other proprietary rights of a third party caused by the use or design of any Communication Module developed by Comverge under this Agreement, provided that (i) such use is consistent with the use described in or contemplated by the Statement of Work of any written instructions for use furnished by Comverge, (ii) such infringement or misappropriation is not based solely on the combination or integration of the Customized Thermostat with a Communication Module or any other device or product not designed or manufactured by Comverge, and/or (iii) such design, if any, was not effected pursuant to the request of any WR Parties with their knowledge (actual or constructive) of any infringement or misappropriation issue related thereto. Comverge shall defend, at its own expense, all Claims that, if resolved adversely to Comverge or any of the WR Parties, would be covered by the foregoing indemnity. Comverge shall have the right, in order to avoid such Claims, to substitute at its own expense non-infringing or non-misappropriating Communication Modules or to modify at its own expense the use or design of infringing or misappropriating Communication Modules so they become non-infringing or non-misappropriating, provided that such substituted or modified use or design shall be subject to WR Parties’ approval, which approval shall not be unreasonably withheld, and shall meet all the requirements stated in this Agreement.
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