Common use of Indemnification by Dealer Clause in Contracts

Indemnification by Dealer. If part or all of the DEALER Service becomes, or in DEALER’s opinion is likely to become, the subject of an IP Claim, then DEALER may, at DEALER’s option and in its sole discretion, as the sole and exclusive remedy of the CUSTOMER elect to (a) procure for CUSTOMER the right to use the DEALER Services, (b) replace the DEALER Services with other suitable products or modify the DEALER Services so that it becomes non-infringing (subject to any applicable rights of CUSTOMER under Section 4.2 hereof), or (c) terminate the DEALER Services and refund the prepaid portion of any Fees paid by CUSTOMER for unused access to the DEALER Services or any affected portion of such Services. DEALER shall have no liability under this Section 11.3 or otherwise to the extent a claim or suit is based upon (v) any act or omission of any Third Party Providers, (w) the use of the DEALER Services in a manner prohibited under this Agreement, (x) the use of the DEALER Services by CUSTOMER in a manner for which the DEALER Services were not designed or intended, or (y), use of the DEALER Services by CUSTOMER in combination with software (except for Third Party Applications provided by DEALER to CUSTOMER), hardware, data (including without limitation, CUSTOMER Data), or content not provided, by DEALER if the infringement would have been avoided in the absence of that combination. THIS SECTION 11.3 SETS FORTH CUSTOMER’S EXCLUSIVE REMEDIES, AND DEALER’S ENTIRE LIABILITY, FOR INTELLECTUAL PROPERTY INFRINGMENT AND/OR MISAPPROPRIATION CLAIMS DESCRIBED IN THIS SECTION 11.3.

Indemnification by Dealer. If part or all Dealer shall indemnify, defend, release and hold harmless ADP, each member of the DEALER Service becomesADP Group and each of their respective directors, officers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “ADP Indemnified Parties”), from and against any and all Losses or Liabilities of the ADP Indemnified Parties relating to, arising out of or resulting from any of the following items regardless of whether arising from or alleged to arise from negligence, recklessness, violation of Law, fraud, misrepresentation or otherwise (without duplication): (a) the failure of Dealer or any other member of the Dealer Group or any other Person to pay, perform or otherwise promptly discharge any Dealer Liability or any contract, agreement or arrangement included in the Dealer Assets in accordance with their respective terms, whether arising prior to, on or after the Distribution Date; (b) any Dealer Liability, any Dealer Asset or the Dealer Business, whether arising prior to, on or after the Distribution Date; (c) any breach by Dealer or any member of the Dealer Group of this Agreement; (d) except to the extent set forth in Section 4.3(d), any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, contained in the Registration Statement or the Information Statement or in any registration statement filed by Dealer (or related prospectus) in connection with the Distribution, or in DEALER’s opinion is likely any materials or information provided to becomeinvestors by, or with the subject of an IP Claimapproval of, then DEALER may, at DEALER’s option and Dealer in its sole discretion, as connection with the sole and exclusive remedy marketing of the CUSTOMER elect Distribution; (e) the failure by Dealer to (a) procure substitute a member of the Dealer Group for CUSTOMER any member of the right to use the DEALER Services, (b) replace the DEALER Services with other suitable products ADP Group as guarantor or modify the DEALER Services so that it becomes non-infringing (subject to primary obligor for any applicable rights of CUSTOMER under Section 4.2 hereof), Dealer Agreement or (c) terminate the DEALER Services and refund the prepaid portion of any Fees paid by CUSTOMER for unused access Dealer Liability according to the DEALER Services or any affected portion terms and conditions of such Services. DEALER shall have no liability under this Section 11.3 or otherwise to the extent a claim or suit is based upon 2.3(f)(ii); and (v) any act or omission of any Third Party Providers, (wf) the use of the DEALER Services failure by Dealer to perform in a manner prohibited under this Agreement, (x) the use of the DEALER Services connection with any Delayed Transfer Asset and/or Liability held by CUSTOMER in a manner ADP for which the DEALER Services were not designed Dealer’s benefit or intended, or (yaccount pursuant to Section 2.3(b), use of the DEALER Services by CUSTOMER in combination with software (except for Third Party Applications provided by DEALER to CUSTOMER), hardware, data (including without limitation, CUSTOMER Data), or content not provided, by DEALER if the infringement would have been avoided in the absence of that combination. THIS SECTION 11.3 SETS FORTH CUSTOMER’S EXCLUSIVE REMEDIES, AND DEALER’S ENTIRE LIABILITY, FOR INTELLECTUAL PROPERTY INFRINGMENT AND/OR MISAPPROPRIATION CLAIMS DESCRIBED IN THIS SECTION 11.3.