Common use of Defense of Infringement Clause in Contracts

Defense of Infringement. Neuronetics will indemnify and defend Customer against any judgment or awarded damages (and reasonable costs and expenses of litigation such as attorneys’ fees) to the extent arising from a third party’s specific allegation that any Product, Neuronetics Xxxx, or promotional materials furnished or licensed to Customer under this Agreement in the form provided by Neuronetics (and not in combination with any product or services provided by any party other than Neuronetics) constitutes an infringement of an issued United States patent or registered United States trademark or copyright (a “Covered Claim”); provided that the foregoing obligation shall not apply to, and the claim shall not be considered a Covered Claim if the claim is directed to, any modification of any of the Products by any person other than Neuronetics or any use of the Products that is (i) not in strict accordance with this Agreement and the applicable Documentation, (ii) for an indication that it is not cleared or approved by the United States Food and Drug Administration or (iii) in combination with any technology, product or process not supplied by Neuronetics. Neuronetics’ obligations under this Section 13(d) are contingent on (1) Customer promptly notifying Neuronetics in writing of the Covered Claim, (2) Customer giving Neuronetics sole power and control over the investigation, defense and settlement of the Covered Claim and

Defense of Infringement. Neuronetics will indemnify and defend Customer against any judgment or awarded damages (and reasonable costs and expenses of litigation such as attorneys’ fees) to the extent arising from a third party’s specific allegation that any Product, Neuronetics XxxxMark, or promotional materials furnished or licensed to Customer under this Agreement in the form provided by Neuronetics (and not in combination with any product or services provided by any party other than Neuronetics) constitutes an infringement of an issued United States patent or registered United States trademark or copyright (a “Covered Claim”); provided that the foregoing obligation shall not apply to, and the claim shall not be considered a Covered Claim if the claim is directed to, any modification of any of the Products by any person other than Neuronetics or any use of the Products that is (i) not in strict accordance with this Agreement and the applicable Documentation, (ii) for an indication that it is not cleared or approved by the United States Food and Drug Administration or (iii) in combination with any technology, product or process not supplied by Neuronetics. Neuronetics’ obligations under this Section 13(d) are contingent on (1) Customer promptly notifying Neuronetics in writing of the Covered Claim, (2) Customer giving Neuronetics sole power and control over the investigation, defense and settlement of the Covered Claim andand‌

Defense of Infringement. Neuronetics will indemnify and defend Customer against any judgment or awarded damages (and reasonable costs and expenses of litigation such as attorneys’ fees) to the extent arising from a third party’s specific allegation that any Product, Neuronetics Xxxx, or promotional materials furnished or licensed to Customer under this Agreement in the form provided by Neuronetics (and not in combination with any product or services provided by any party other than Neuronetics) constitutes an infringement of an issued United States patent or registered United States trademark or copyright (a “Covered Claim”); provided that the foregoing obligation shall not apply to, and the claim shall not be considered a Covered Claim if the claim is directed to, any modification of any of the Products by any person other than Neuronetics or any use of the Products that is (i) not in strict accordance with this Agreement and the applicable Documentation, (ii) for an indication that it is not cleared or approved by the United States Food and Drug Administration or (iii) in combination with any technology, product or process not supplied by Neuronetics. Neuronetics’ obligations under this Section 13(d) are contingent on (1) Customer promptly notifying Neuronetics in writing of the Covered Claim, (2) Customer giving Neuronetics sole power and control over the investigation, defense and settlement of the Covered Claim andand‌