Common use of Defense of Infringement Claims Clause in Contracts

Defense of Infringement Claims. Microsoft will defend Company in a lawsuit in which a third party claims that a Product infringes its copyright, trademark or patent rights or misappropriates its trade secrets. If there is an adverse final judgment (or settlement to which Microsoft consents) from the lawsuit, Microsoft will pay it for Company. The third party may not be Company’s Affiliate. The terms “misappropriation” and “trade secret” will have the meanings defined in the Uniform Trade Secret Act, except if this Agreement is governed by the laws of a jurisdiction outside the United States, in which case “misappropriation” will mean “intentionally unlawful use” and “trade secret” will mean “undisclosed information” as specified in Article 39.2 of the TRIPs agreement. Microsoft’s obligations are subject to the following conditions: (a) Company must promptly notify Microsoft in writing of the claim; (b) Microsoft will have sole control over defense and/or settlement of the claim; and (c) Company will provide Microsoft with reasonable assistance in the defense of the claim. Microsoft’s obligations to defend and pay a patent claim will be limited to patent claims where the Product alone, without combination or modification, constitutes direct or contributory infringement of the patent.