Common use of Infringement Claims Clause in Contracts

Infringement Claims. 5.1 XXXX will, at its expense, defend, indemnify and hold Customer harmless from any claim or suit brought against Customer alleging that a Product or Service infringes a patent, copyright or trade secret, and XXXX will pay all costs and damages in a settlement or award resulting therefrom, if Customer promptly notifies XXXX of the claim and gives XXXX reasonably requested information and cooperation and sole authority to defend and settle the claim. 5.2 In handling the claim, XXXX may obtain, at no additional charge to Customer, the right for Customer to continue using the Product or Service at issue, or replace or modify it so that it becomes non-infringing. If XXXX is unable to reasonably secure those remedies, and if Customer must discontinue use of an infringing Product or Service then, in addition to providing the defense and indemnification set forth above, XXXX may terminate the license to the infringing Product and Service and refund to Customer, on a pro rata basis, the share of any fees prepaid by Customer for the future portion of the term that would have remained but for such termination. 5.3 XXXX’x indemnification does not apply, and Customer correspondingly will defend, indemnify and hold XXXX harmless, to the extent that the alleged infringement is caused by: (a) any modification of the Products made by any party other than XXXX; (b) a modification or enhancement to the Products or Services pursuant to designs provided by Customer; (c) the combination, operation or use by Customer of any software, equipment or devices not supplied by XXXX to the extent the claim would have been avoided if the Products or Services were not used in such combination; or (d) failure of Customer to use a Software release or modified Software provided by XXXX to the extent the claim would have been avoided if the updated or modified Software was used by Customer. 5.4 Each party’s obligations and liabilities to the other for third party intellectual property infringement claims, and each party’s rights and remedies against the other for such claims, are solely and exclusively set forth in this Section of the Agreement.

Infringement Claims. 5.1 XXXX will8.1 Supplier warrants to Customer that no Software to which Customer has subscribed, at nor its expense, defend, indemnify and hold features infringe any industrial or intellectual property rights of any third party. 8.2 Customer harmless from any claim or suit brought against Customer alleging that a Product or Service infringes a patent, copyright or trade secret, and XXXX will pay all costs and damages in a settlement or award resulting therefrom, shall promptly inform Supplier if Customer promptly notifies XXXX of the claim and gives XXXX reasonably requested information and cooperation and sole authority to defend and settle the claim.becomes aware of: 5.2 In handling the claim, XXXX may obtain, at no additional charge to Customer, the right for Customer to continue using the Product or Service at issue, or replace or modify it so that it becomes non-infringing. If XXXX is unable to reasonably secure those remedies, and if Customer must discontinue use of an infringing Product or Service then, in addition to providing the defense and indemnification set forth above, XXXX may terminate the license to the infringing Product and Service and refund to Customer, on a pro rata basis, the share of any fees prepaid by Customer for the future portion of the term that would have remained but for such termination. 5.3 XXXX’x indemnification does not apply, and Customer correspondingly will defend, indemnify and hold XXXX harmless, to the extent that the alleged infringement is caused by: (a) any modification unauthorised use of the Products made by any party other than XXXX; Software; (b) a modification any actual, threatened, or enhancement suspected infringement of any intellectual property of Supplier, its Affiliates and/or licensors of the foregoing in the Software which comes to the Products or Services pursuant to designs provided by Customer's notice; and (c) any claim by any third party coming to its notice that the combination, operation Software infringes the intellectual property or use by Customer other rights of any softwareother person. 8.3 Customer shall at the request and expense of Supplier do all such things as may be reasonably required to assist Supplier in taking or resisting proceedings in relation to any infringement or claim referred to in this clause and in maintaining the validity and enforceability of the intellectual property of Supplier, equipment its Affiliates and/or licensors of the foregoing in the Software. 8.4 In the event a claim of infringement is made against Supplier or devices not supplied by XXXX Customer with respect to the extent Software, Supplier, for the purpose of settling such claim, may, at its option, in respect of such allegedly infringing Software: (i) substitute fully equivalent non-infringing software; or (ii) modify the Software so that it no longer infringes but remains functionally equivalent. If, as a result of such claim, Customer or Supplier is permanently enjoined from using the Software by a final, non-appealable decree from a court of competent jurisdiction, Supplier will take one or both of the actions set forth in (i) and (ii) above or will obtain for Customer at Supplier’s expense the right to continue to use the Software. 8.5 Supplier’s obligations to Customer pursuant to this clause 8 is contingent upon Supplier being given prompt notice and control of, and detailed information with regard to, any such claim, suit or proceeding. Customer shall have the right to participate at its own cost in the defence of any such claim would have been avoided if or action through legal counsel of its choosing. Customer shall not settle any such claim or action without Supplier’s prior written consent. 8.6 This clause 8 contains Supplier’s entire obligation and the Products or Services were not used in such combination; or (d) failure exclusive remedies of Customer with regard to use a any claimed infringement arising out of or based upon the Software release or modified Software provided by XXXX to the extent the claim would have been avoided if the updated or modified Software was used by Customer. 5.4 Each party’s obligations and liabilities to the other for third party intellectual property infringement claims, and each party’s rights and remedies against the other for such claims, are solely and exclusively set forth in this Section of the Agreement.

Infringement Claims. 5.1 XXXX willSpinnaker will defend at its own expense any action against Customer brought by a third- party to the extent that the action is based upon a claim that Customer’s use of any Deliverable infringes any U.S. patent or copyright or misappropriates any trade secret of a third-party, and Spinnaker will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer (a) notifying Spinnaker promptly in writing of such action, (b) giving Spinnaker sole control of the defense thereof and any related settlement negotiations and (c) cooperating and, at Spinnaker’s request and expense, assisting in such defense. If any Deliverable becomes, or in Spinnaker’s opinion is likely to become, the subject of an infringement claim, Spinnaker may, at its option and expense, defend, indemnify and hold either (i) procure for Customer harmless from any claim or suit brought against Customer alleging that a Product or Service infringes a patent, copyright or trade secret, and XXXX will pay all costs and damages in a settlement or award resulting therefrom, if Customer promptly notifies XXXX of the claim and gives XXXX reasonably requested information and cooperation and sole authority to defend and settle the claim. 5.2 In handling the claim, XXXX may obtain, at no additional charge to Customer, the right for Customer to continue using the Product or Service at issueDeliverable, or (ii) replace or modify it the Deliverable so that it becomes non-infringing. If XXXX is unable infringing or (iii) terminate Customer’s right to reasonably secure those remedies, and if Customer must discontinue use of an infringing Product or Service then, in addition to providing the defense and indemnification set forth above, XXXX may terminate the license to the infringing Product and Service Deliverable and refund to Customer, on a pro rata basis, Customer the share of any fees prepaid by Customer paid for the future such portion of the term that would Deliverable which is allegedly infringing, upon which Customer shall have remained but for such termination. 5.3 XXXX’x indemnification does not apply, no further rights in and Customer correspondingly will defend, indemnify and hold XXXX harmless, to the extent that subject Deliverable. Notwithstanding the alleged foregoing, Spinnaker will have no obligation under this Section 6 or otherwise with respect to any infringement is caused by: claim based upon (aA) any use of the Deliverable not in accordance with this Agreement or for purposes not intended by Spinnaker, (B) any use of the Deliverable in combination with other services, products, equipment, software or data not intended by Spinnaker to be used with the Deliverable, (C) any information, software code or other materials furnished to Spinnaker by Customer, its agents, representatives and suppliers, including Customer’s specifications, (D) any unauthorized and/or unlicensed activities by Customer, its agents, representatives and suppliers, including any violation by Customer of Section 4.2, or (E) any modification of the Products made Deliverable by any party person other than XXXXSpinnaker or its authorized agents or subcontractors; (b) a modification or enhancement to the Products or Services pursuant to designs provided by Customer; (c) the combinationand Customer shall indemnify, operation or use by Customer of defend and hold Spinnaker, its officers, employees, personnel, agents and representatives harmless from and against any software, equipment or devices not supplied by XXXX to the extent the claim would have been avoided if the Products or Services were not used in such combination; or (d) failure of Customer to use a Software release or modified Software provided by XXXX to the extent the claim would have been avoided if the updated or modified Software was used by Customer. 5.4 Each party’s obligations and liabilities to the other for third party intellectual property infringement all claims, liabilities, damages and each party’s rights and remedies against the other for such claims, are solely and exclusively set forth in this Section expenses (including reasonable attorneys’ fees) based upon any of the Agreementforegoing. THIS SECTION 6 STATES SPINNAKER’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS RELATED TO THE SERVICES AND ANY DELIVERABLE UNDER THIS AGREEMENT.

Infringement Claims. 5.1 XXXX will6.1 Supplier warrants to Customer that no Software to which Customer has subscribed, at nor its expense, defend, indemnify and hold features infringe any industrial or intellectual property rights of any third party. 6.2 Customer harmless from any claim or suit brought against Customer alleging that a Product or Service infringes a patent, copyright or trade secret, and XXXX will pay all costs and damages in a settlement or award resulting therefrom, shall promptly inform Supplier if Customer promptly notifies XXXX of the claim and gives XXXX reasonably requested information and cooperation and sole authority to defend and settle the claim.becomes aware of: 5.2 In handling the claim, XXXX may obtain, at no additional charge to Customer, the right for Customer to continue using the Product or Service at issue, or replace or modify it so that it becomes non-infringing. If XXXX is unable to reasonably secure those remedies, and if Customer must discontinue use of an infringing Product or Service then, in addition to providing the defense and indemnification set forth above, XXXX may terminate the license to the infringing Product and Service and refund to Customer, on a pro rata basis, the share of any fees prepaid by Customer for the future portion of the term that would have remained but for such termination. 5.3 XXXX’x indemnification does not apply, and Customer correspondingly will defend, indemnify and hold XXXX harmless, to the extent that the alleged infringement is caused by: (a) any modification unauthorized use of the Products made by any party other than XXXX; Software; (b) a modification any actual, threatened, or enhancement suspected infringement of any intellectual property of Supplier, its Affiliates and/or licensors of the foregoing in the Software which comes to the Products or Services pursuant to designs provided by Customer's notice; and (c) any claim by any third party coming to its notice that the combination, operation Software infringes the intellectual property or use by Customer other rights of any softwareother person. 6.3 Customer shall at the request and expense of Supplier do all such things as may be reasonably required to assist Supplier in taking or resisting proceedings in relation to any infringement or claim referred to in this clause and in maintaining the validity and enforceability of the intellectual property of Supplier, equipment its Affiliates and/or licensors of the foregoing in the Software. 6.4 In the event a claim of infringement is made against Supplier or devices not supplied by XXXX Customer with respect to the extent Software, Supplier, for the purpose of settling such claim, may, at its option, in respect of such allegedly infringing Software: (i) substitute fully equivalent non-infringing software; or (ii) modify the Software so that it no longer infringes but remains functionally equivalent. If, as a result of such claim, Customer or Supplier is permanently enjoined from using the Software by a final, non- appealable decree from a court of competent jurisdiction, Supplier will take one or both of the actions set forth in (i) and (ii) above or will obtain for Customer at Supplier’s expense the right to continue to use the Software. 6.5 Supplier’s obligations to Customer pursuant to this clause 6 is contingent upon Supplier being given prompt notice and control of, and detailed information with regard to, any such claim, suit or proceeding. Customer shall have the right to participate at its own cost in the defense of any such claim would have been avoided if or action through legal counsel of its choosing. Customer shall not settle any such claim or action without Supplier’s prior written consent. 6.6 This clause 6 contains Supplier’s entire obligation and the Products or Services were not used in such combination; or (d) failure exclusive remedies of Customer with regard to use a any claimed infringement arising out of or based upon the Software release or modified Software provided by XXXX to the extent the claim would have been avoided if the updated or modified Software was used by Customer. 5.4 Each party’s obligations and liabilities to the other for third party intellectual property infringement claims, and each party’s rights and remedies against the other for such claims, are solely and exclusively set forth in this Section of the Agreement.

Infringement Claims. 5.1 XXXX will(i) Seller shall have no obligation or liability to indemnify Buyer for any Infringement Claim to the extent such claim arises out of: 1. Seller’s compliance with Buyer’s customized written designs, drawings, or specification for the Products; provided, however, that the foregoing exclusion shall not apply if Seller sells or otherwise distributes such customized Product to any person or entity other than Buyer or Buyer’s Affiliates; 2. Use of any Product other than for its intended use as described in the relevant Product Documentation; 3. Use of a Product in combination with anything not sold, licensed or otherwise provided by Seller or any of its Affiliates, unless such use is as intended as described in the Product Documentation; or 4. Use of any stand-alone software Product (as opposed to any software or firmware included in a Hardware Product) other than the latest version of such software Product that has been released by Seller and provided to Buyer as an Update. (ii) If Seller believes that an Infringement Claim is likely or, as a result of any Infringement Claim, a court of competent jurisdiction enjoins (A) Buyer or any of its Affiliates from offering, marketing, using, selling, reselling or otherwise distributing any Product (each, an “Infringing Product”) or using, reproducing or distributing any Product Documentation, Seller shall, at its option (with respect to selecting sub clauses (1), (2) or (3) below) and expense, defendand in addition to Seller’s indemnification obligations under Section 12.A(ii), indemnify and hold Customer harmless from any claim or suit brought against Customer alleging that a Product or Service infringes a patent, copyright or trade secret, and XXXX will pay all costs and damages in a settlement or award resulting therefrom, if Customer promptly notifies XXXX of the claim and gives XXXX reasonably requested information and cooperation and sole authority to defend and settle the claim.promptly: 5.2 In handling the claim, XXXX may obtain, at no additional charge to Customer, 1. Procure the right for Customer Buyer and its Affiliates to continue using to offer, market, use, sell, resell and other wise distribute the Infringing Products, and to use, reproduce and distribute the Product or Service at issue, or replace or modify it so that it becomes non-infringing. If XXXX is unable to reasonably secure those remedies, and if Customer must discontinue use of an infringing Product or Service thenDocumentation, in addition to providing the defense and indemnification set forth aboveeach case, XXXX may terminate the license to the infringing Product and Service and refund to Customer, on a pro rata basis, the share of without any fees prepaid by Customer for the future portion of the term that would have remained but for such termination. 5.3 XXXX’x indemnification does not apply, and Customer correspondingly will defend, indemnify and hold XXXX harmless, to the extent that the alleged infringement is caused by: (a) any modification of the Products made by any party other than XXXX; (b) a modification or enhancement to the Products or Services pursuant to designs provided by Customer; (c) the combination, operation or use by Customer of any software, equipment or devices not supplied by XXXX to the extent the claim would have been avoided if the Products or Services were not used in such combination; or (d) failure of Customer to use a Software release or modified Software provided by XXXX to the extent the claim would have been avoided if the updated or modified Software was used by Customer. 5.4 Each party’s obligations and liabilities to the other for third party intellectual property infringement claims, and each party’s rights and remedies against the other for such claims, are solely and exclusively set forth in this Section of the Agreement.further infringement;

Infringement Claims. 5.1 XXXX will(i) Seller shall have no obligation or liability to indemnify Buyer for any Infringement Claim to the extent such claim arises out of: 1. Seller’s compliance with Buyer’s customized written designs, drawings, or specification for the Products; provided, however, that the foregoing exclusion shall not apply if Seller sells or otherwise distributes such customized Product to any person or entity other than Buyer or Buyer’s Affiliates; 2. Use of any Product other than for its intended use as described in the relevant Product Documentation; 3. Use of a Product in combination with anything not sold, licensed or otherwise provided by Seller or any of its Affiliates, unless such use is as intended as described in the Product Documentation; or 4. Use of any stand-alone software Product (as opposed to any software or firmware included in a Hardware Product) other than the latest version of such software Product that has been released by Seller and provided to Buyer as an Update. (ii) If Seller believes that an Infringement Claim is likely or, as a result of any Infringement Claim, a court of competent jurisdiction enjoins (A) Buyer or any of its Affiliates from offering, marketing, using, selling, reselling or otherwise distributing any Product (each, an “Infringing Product”) or using, reproducing or distributing any Product Documentation, Seller shall, at its option (with respect to selecting sub clauses (1), (2) or (3) below) and expense, defendand in addition to Seller’s indemnification obligations under Section 12.A(ii), indemnify and hold Customer harmless from any claim or suit brought against Customer alleging that a Product or Service infringes a patent, copyright or trade secret, and XXXX will pay all costs and damages in a settlement or award resulting therefrom, if Customer promptly notifies XXXX of the claim and gives XXXX reasonably requested information and cooperation and sole authority to defend and settle the claim.promptly: 5.2 In handling the claim, XXXX may obtain, at no additional charge to Customer, 1. Procure the right for Customer Buyer and its Affiliates to continue using to offer, market, use, sell, resell and other wise distribute the Infringing Products, and to use, reproduce and distribute the Product or Service at issueDocumentation, or replace or modify it so that it becomes in each case, without any further infringement; 2. Replace the Infringing Product by delivering a substitute, compatible, non-infringinginfringing Product to Buyer substantially equivalent in functionality, useful life and performance to the Infringing Product; or 3. If XXXX is In the event that, after using reasonable efforts, Seller us unable to reasonably secure those remediesachieve one of the remedies identified in subclauses 1 or 2 above on commercially reasonable terms, (i) accept the return of any Infringing product in inventory and terminate any license to Seller’s Infringing Product, (ii) terminate any other unperformed product services (including any software maintenance) acquired by Seller in connection with the Infringing product (collectively, “Unperformed Services”), and if Customer must discontinue use of an infringing Product or Service then(iii) immediately credit to Buyer (1) the Purchase price for the returned Infringing Products, in addition to providing the defense and indemnification set forth above, XXXX may terminate the license to the infringing Product and Service and refund to Customer, each depreciated on a pro straight-line basis over five (5) years from Seller’s delivery of such Product, and (2) a pro-rata basis, the share of any fees prepaid by Customer for the future portion of the term that would have remained but Purchase Price for such terminationthe remaining portion of any Unperformed Services. 5.3 XXXX’x indemnification does not apply(iii) This Section 12 sets forth Seller’s entire liability and Buyer’s and it’s Affiliates’ sole recourse and remedy for any Infringement Claim. All other warranties against infringement, and Customer correspondingly will defendwhether statutory, indemnify and hold XXXX harmless, to the extent that the alleged infringement is caused by: (a) any modification of the Products made by any party other than XXXX; (b) a modification express or enhancement to the Products or Services pursuant to designs provided by Customer; (c) the combination, operation or use by Customer of any software, equipment or devices not supplied by XXXX to the extent the claim would have been avoided if the Products or Services were not used in such combination; or (d) failure of Customer to use a Software release or modified Software provided by XXXX to the extent the claim would have been avoided if the updated or modified Software was used by Customer. 5.4 Each party’s obligations and liabilities to the other for third party intellectual property infringement claims, and each party’s rights and remedies against the other for such claimsimplied, are solely and exclusively set forth in this Section of the Agreementhereby disclaimed by Seller.

Infringement Claims. 5.1 XXXX willIn addition and without limiting the generality of the above, Contractor shall defend at Contractor's sole expense, and save, hold harmless, and indemnify the State, Agency, and all of their officers, employees and agents from and against any and all costs, damages, attorneys' fees, and any and all costs resulting from, relating to, or arising out of a claim ("Infringement Claim") that any aspect of the Goods or Software furnished under this Contract infringes a patent, utility model, industrial design, copyright, mask work, trademark, trade dress, or any other legally cognizable proprietary right of any third party. Agency shall give Contractor notice of any Infringement Claim promptly after becoming aware of such Infringement Claim. If any Goods or Software furnished by Contractor, are in Contractor's opinion likely to become the subject of an Infringement Claim, then Contractor may, at its option and expense, procure for Agency the right to continue using the allegedly infringing materials or replace or modify the materials so that they become non-infringing; provided that the replacement or modified version meets Agency's original specifications to the satisfaction of Agency. If the State or Agency is prevented from exercising its rights under this Contract based on any Infringement Claim or court order arising from any Infringement Claim, Contractor shall at its expense, defendprocure for Agency, indemnify and hold Customer harmless from any claim or suit brought against Customer alleging that a Product or Service infringes a patent, copyright or trade secret, and XXXX will pay all costs and damages in a settlement or award resulting therefrom, if Customer promptly notifies XXXX of the claim and gives XXXX reasonably requested information and cooperation and sole authority to defend and settle the claim. 5.2 In handling the claim, XXXX may obtain, at no additional charge to Customeras applicable, the right for Customer to continue using the Product or Service at issue, allegedly infringing Goods or replace or modify it the allegedly infringing Goods or Software so that it becomes non-infringing. If XXXX is unable to reasonably secure those remedies, and if Customer must discontinue use of an infringing Product or Service then, in addition to providing the defense and indemnification set forth above, XXXX may terminate the license to the infringing Product and Service and refund to Customer, on a pro rata basis, the share of any fees prepaid by Customer for the future portion of the term that would have remained but for such termination. 5.3 XXXX’x indemnification does not apply, and Customer correspondingly will defend, indemnify and hold XXXX harmless, to the extent ; provided that the alleged infringement is caused by: (a) any modification of the Products made by any party other than XXXX; (b) a modification or enhancement to the Products or Services pursuant to designs provided by Customer; (c) the combination, operation or use by Customer of any software, equipment or devices not supplied by XXXX to the extent the claim would have been avoided if the Products or Services were not used in such combination; or (d) failure of Customer to use a Software release replacement or modified Goods or Software provided by XXXX to meets the extent the claim would have been avoided if the updated or modified Software was used by Customer. 5.4 Each party’s obligations and liabilities to the other for third party intellectual property infringement claims, and each party’s rights and remedies against the other for such claims, are solely and exclusively specifications set forth in this Section Contract to the satisfaction of Agency. If the Agreementforegoing remedies are not available, then Agency may return the allegedly infringing Goods and Software, in which event Contractor shall refund Agency's payment for the allegedly infringing Goods and Software in full.

Infringement Claims. 5.1 XXXX (a) Contractor shall indemnify, hold harmless, and defend Buyer Indemnitees from and against any and all Losses arising out of or in connection with Contractor’s breach of the Infringement Warranty (an “Infringement Claim”). (b) Xxxxx shall deliver written notice to Contractor of any claim arising in connection with Contractor’s breach of the Infringement Warranty (an “Infringement Claim”). Contractor shall be entitled to participate in, and, unless a conflict of interest between the Parties exists with respect to such claim, assume control of the defense of such claim with counsel reasonably acceptable to Buyer. Xxxxx authorizes Contractor to settle or defend such claims in its sole discretion on Xxxxx’s behalf, without imposing any monetary or other obligation, restriction, admission, or liability on Buyer and subject to Buyer’s participation rights herein. Buyer shall assist Contractor upon reasonable request by Contractor and, at Contractor’s reasonable expense, in defending any such claim. If Contractor does not assume the defense of such claim, or if a conflict precludes Contractor from assuming the defense, then Contractor shall reimburse Buyer on a monthly basis for Buyer’s reasonable and documented defense expenses of such claim through separate counsel of Xxxxx’s choice reasonably acceptable to Contractor. (c) Should Buyer be enjoined from using any Module or Facility as a result of an Infringement Claim, Contractor will, at its sole option and discretion (and at its own expense, defend, indemnify and hold Customer harmless from any claim ) either: (i) procure or suit brought against Customer alleging that a Product or Service infringes a patent, copyright or trade secret, and XXXX will pay all costs and damages in a settlement or award resulting therefrom, if Customer promptly notifies XXXX of the claim and gives XXXX reasonably requested information and cooperation and sole authority to defend and settle the claim. 5.2 In handling the claim, XXXX may obtain, at no additional charge to Customer, otherwise obtain for Buyer the right for Customer to continue using own or use such Module or Facility; (ii) modify the Product Module or Service at issue, or replace or modify it Facility so that it becomes non-infringinginfringing but still substantially meets its original functional requirements; (iii) replace the Module or Facility with a non-infringing Module or Facility that substantially meets its original functional requirements; or (iv) repurchase the infringing Facility in accordance with Section 6.11(e) below. […***…]. (d) [Reserved]. (e) If XXXX is unable Contractor elects to reasonably secure those remedies, and if Customer must discontinue use of repurchase an infringing Product or Service Facility pursuant to clause (c)(iv) above, then, in addition to providing Contractor’s indemnity obligations under Section 6.11(a): (i) Contractor will pay to Buyer the defense Repurchase Value of such Facility; (ii) title to such Facility will automatically transfer back to Contractor on an AS IS basis upon Xxxxx’s receipt of such payment and indemnification set forth aboveBuyer will deliver a Bill of Sale to Contractor evidencing such transfer of title; (iii) upon Xxxxx’s request, XXXX may terminate the license Contractor will use commercially reasonable efforts to the infringing Product and Service and refund to Customer, on assist Xxxxx in securing a pro rata basis, the share release in writing of any fees prepaid by Customer for the future portion all of the term that would have remained but for such termination. 5.3 XXXX’x indemnification does not apply, and Customer correspondingly will defend, indemnify and hold XXXX harmless, to the extent that the alleged infringement is caused by: (a) any modification of the Products made by any party other than XXXX; (b) a modification or enhancement to the Products or Services pursuant to designs provided by Customer; (c) the combination, operation or use by Customer of any software, equipment or devices not supplied by XXXX to the extent the claim would have been avoided if the Products or Services were not used in such combination; or (d) failure of Customer to use a Software release or modified Software provided by XXXX to the extent the claim would have been avoided if the updated or modified Software was used by Customer. 5.4 Each partyBuyer’s obligations and liabilities with respect to the other for third party intellectual property infringement claims, Facility from the related Third Parties under the applicable Project Documents; (iv) such Facility will no longer be deemed a part of the Portfolio; and (v) Contractor and each partyXxxxx’s rights and remedies against obligations with respect to such Facility under this EPC shall terminate in full, except for those provisions that expressly survive by their terms. Notwithstanding the foregoing, Contractor shall not have any obligations in connection with an Infringement Claim resulting from any (A) combination made by Buyer or on behalf of Buyer of any Facility with any other for product or products (B) any modification by Buyer or on behalf of Buyer to any part of a Module or Facility, (C) a Module or Facility that is custom designed by Buyer, unless, in each case, such claimscombination or modification was made in accordance with Contractor’s express specifications, are solely and exclusively set forth in this Section of the Agreementwas pursuant to Contractor’s express request or was performed by Contractor.

Infringement Claims. 5.1 XXXX willAll Claims that any Customer Owned Software and/or Customer Licensed Software, at its expense, defend, indemnify and hold Customer harmless from any claim or suit brought against Customer alleging that a Product or Service infringes a patent, copyright or trade secret, and XXXX will pay all costs and damages Provider’s use thereof in a settlement or award resulting therefrom, if Customer promptly notifies XXXX accordance with the terms of the claim and gives XXXX reasonably requested information and cooperation and sole authority Agreement, infringes or misappropriates the Intellectual Property Rights of a Third Party. If any Customer Owned Software and/or Customer Licensed Software is held to defend and settle the claim. 5.2 In handling the claim, XXXX may obtain, at no additional charge to Customer, the right for Customer to continue using the Product or Service at issueconstitute, or replace in Customer’s reasonable judgment is likely to constitute, an infringement or modify it so that it becomes non-infringing. If XXXX is unable to reasonably secure those remediesmisappropriation, and if Customer must discontinue use of an infringing Product or Service thenwill, in addition to providing its indemnity obligations, at its expense and option, and after consultation with Provider regarding Provider’s preference in such event, either: (i) procure the defense and indemnification set forth above, XXXX may terminate the license right for Provider Indemnitees to continue using such Customer Owned Software and/or Customer Licensed Software; (ii) provide Provider with an opinion of counsel reasonably acceptable to Provider as to the infringing Product and Service and refund to Customer, on a pro rata basis, the share of any fees prepaid by Customer for the future portion invalidity of the term asserted Intellectual Property Rights or the non-infringement of the Customer Owned Software and/or Customer Licensed Software; (iii) replace such Customer Owned Software and/or Customer Licensed Software with a non-infringing equivalent, provided that such replacement does not result in a degradation of the functionality, performance or quality of the Customer Owned Software and/or Customer Licensed Software, accompanied by an opinion of counsel reasonably acceptable to Provider CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [ * * * ]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. as to the non-infringement of the Customer Owned Software and/or Customer Licensed Software and the replacement integrated therein; (iv) modify such Customer Owned Software and/or Customer Licensed Software, or have such Customer Owned Software and/or Customer Licensed Software modified, to make it non-infringing, provided that such modification does not result in a degradation of the functionality, performance or quality of the Customer Owned Software and/or Customer Licensed Software, accompanied by an opinion of counsel reasonably acceptable to Provider as to the non-infringement of the Customer Owned Software and/or Customer Licensed Software and the replacement integrated therein; or (v) create a workaround that would not have remained but for such termination. 5.3 XXXX’x indemnification does not applyany adverse impact on Provider’s ability to perform the Services, accompanied by an opinion of counsel reasonably acceptable to Provider as to the non-infringement of the Customer Owned Software and/or Customer Licensed Software and the replacement integrated therein. Customer correspondingly will defend, indemnify and hold XXXX harmless, shall have no liability or obligation to any of the Provider Indemnitees under this paragraph (a) with respect to any Customer Software incorporated in any Work Product or to the extent that the alleged claim of infringement or misappropriation is caused by: (aA) any such Provider Indemnitee’s use or modification of the Products made by such item (on behalf of itself or any party other party) other than XXXXas expressly authorized pursuant to this Agreement; (bB) a modification such Provider Indemnitees’ failure to use corrections or enhancement to the Products or Services pursuant to designs provided by Customer; (c) the combination, operation or use enhancements made available by Customer to Provider within a reasonable period of any software, equipment time after such corrections or devices not supplied by XXXX enhancements were first made available to the extent the claim would have been avoided if the Products or Services were not used in such combinationProvider without cost; or (dC) failure such Provider Indemnitee’s use of such item in combination with any product or equipment not owned, developed, contemplated or authorized by Customer, except where Customer to use a Software release knew or modified Software provided by XXXX to the extent the claim should reasonably have known that such combination would have been avoided if the updated or modified Software was be used by Customer. 5.4 Each partyProvider or such Provider Indemnitee to provide Services hereunder and did not object. The foregoing sentence constitutes Provider’s obligations sole and liabilities to the other for third party intellectual property infringement claimsexclusive remedy, and each partyCustomer Group’s rights and remedies against the other for such claimsentire liability, are solely and exclusively set forth in this Section with respect to claims of the Agreementinfringement or misappropriation of Third Party Intellectual Property Rights.

Infringement Claims. 5.1 XXXX will(i) Seller shall have no obligation or liability to indemnify Buyer for any Infringement Claim to the extent such claim arises out of: 1. Seller’s compliance with Buyer’s customized written designs, drawings, or specification for the Products; provided, however, that the foregoing exclusion shall not apply if Seller sells or otherwise distributes such customized Product to any person or entity other than Buyer or Buyer’s Affiliates; 2. Use of any Product other than for its intended use as described in the relevant Product Documentation; 3. Use of a Product in combination with anything not sold, licensed or otherwise provided by Seller or any of its Affiliates, unless such use is as intended as described in the Product Documentation; or 4. Use of any stand-alone software Product (as opposed to any software or firmware included in a Hardware Product) other than the latest version of such software Product that has been released by Seller and provided to Buyer as an Update. (ii) If Seller believes that an Infringement Claim is likely or, as a result of any Infringement Claim, a court of competent jurisdiction enjoins (A) Buyer or any of its Affiliates from offering, marketing, using, selling, reselling or otherwise distributing any Product (each, an “Infringing Product”) or using, reproducing or distributing any Product Documentation, Seller shall, at its option (with respect to selecting sub clauses (1), (2) or (3) below) and expense, defendand in addition to Seller’s indemnification obligations under Section 12.A(ii), indemnify and hold Customer harmless from any claim or suit brought against Customer alleging that a Product or Service infringes a patent, copyright or trade secret, and XXXX will pay all costs and damages in a settlement or award resulting therefrom, if Customer promptly notifies XXXX of the claim and gives XXXX reasonably requested information and cooperation and sole authority to defend and settle the claim.promptly: 5.2 In handling the claim, XXXX may obtain, at no additional charge to Customer, 1. Procure the right for Customer Buyer and its Affiliates to continue using to offer, market, use, sell, resell and other wise distribute the Infringing Products, and to use, reproduce and distribute the Product or Service at issueDocumentation, or replace or modify it so that it becomes in each case, without any further infringement; Master Supply & Purchasing Agreement 2. Replace the Infringing Product by delivering a substitute, compatible, non-infringinginfringing Product to Buyer substantially equivalent in functionality, useful life and performance to the Infringing Product; or 3. If XXXX is In the event that, after using reasonable efforts, Seller us unable to reasonably secure those remediesachieve one of the remedies identified in subclauses 1 or 2 above on commercially reasonable terms, (i) accept the return of any Infringing product in inventory and terminate any license to Seller’s Infringing Product, (ii) terminate any other unperformed product services (including any software maintenance) acquired by Seller in connection with the Infringing product (collectively, “Unperformed Services”), and if Customer must discontinue use of an infringing Product or Service then(iii) immediately credit to Buyer (1) the Purchase price for the returned Infringing Products, in addition to providing the defense and indemnification set forth above, XXXX may terminate the license to the infringing Product and Service and refund to Customer, each depreciated on a pro straight-line basis over five (5) years from Seller’s delivery of such Product, and (2) a pro-rata basis, the share of any fees prepaid by Customer for the future portion of the term that would have remained but Purchase Price for such terminationthe remaining portion of any Unperformed Services. 5.3 XXXX’x indemnification does not apply(iii) This Section 12 sets forth Seller’s entire liability and Buyer’s and it’s Affiliates’ sole recourse and remedy for any Infringement Claim. All other warranties against infringement, and Customer correspondingly will defendwhether statutory, indemnify and hold XXXX harmless, to the extent that the alleged infringement is caused by: (a) any modification of the Products made by any party other than XXXX; (b) a modification express or enhancement to the Products or Services pursuant to designs provided by Customer; (c) the combination, operation or use by Customer of any software, equipment or devices not supplied by XXXX to the extent the claim would have been avoided if the Products or Services were not used in such combination; or (d) failure of Customer to use a Software release or modified Software provided by XXXX to the extent the claim would have been avoided if the updated or modified Software was used by Customer. 5.4 Each party’s obligations and liabilities to the other for third party intellectual property infringement claims, and each party’s rights and remedies against the other for such claimsimplied, are solely and exclusively set forth in this Section of the Agreementhereby disclaimed by Seller.

Infringement Claims. 5.1 XXXX willAll Claims that any Customer Owned Software and/or Customer Licensed Software, at its expense, defend, indemnify and hold Customer harmless from any claim or suit brought against Customer alleging that a Product or Service infringes a patent, copyright or trade secret, and XXXX will pay all costs and damages Provider’s use thereof in a settlement or award resulting therefrom, if Customer promptly notifies XXXX accordance with the terms of the claim and gives XXXX reasonably requested information and cooperation and sole authority Agreement, infringes or misappropriates the Intellectual Property Rights of a Third Party. If any Customer Owned Software and/or Customer Licensed Software is held to defend and settle the claim. 5.2 In handling the claim, XXXX may obtain, at no additional charge to Customer, the right for Customer to continue using the Product or Service at issueconstitute, or replace in Customer’s reasonable judgment is likely to constitute, an infringement or modify it so that it becomes non-infringing. If XXXX is unable to reasonably secure those remediesmisappropriation, and if Customer must discontinue use of an infringing Product or Service thenwill, in addition to providing its indemnity obligations, at its expense and option, and after consultation with Provider regarding Provider’s preference in such event, either: (i) procure the defense and indemnification set forth above, XXXX may terminate the license right for Provider Indemnitees to continue using such Customer Owned Software and/or Customer Licensed Software; (ii) provide Provider with an opinion of counsel reasonably acceptable to Provider as to the infringing Product and Service and refund to Customer, on a pro rata basis, the share of any fees prepaid by Customer for the future portion invalidity of the term asserted Intellectual Property Rights or the non-infringement of the Customer Owned Software and/or Customer Licensed Software; (iii) replace such Customer Owned Exhibit 10.103 Software and/or Customer Licensed Software with a non-infringing equivalent, provided that such replacement does not result in a degradation of the functionality, performance or quality of the Customer Owned Software and/or Customer Licensed Software, accompanied by an opinion of counsel reasonably acceptable to Provider as to the non-infringement of the Customer Owned Software and/or Customer Licensed Software and the replacement integrated therein; (iv) modify such Customer Owned Software and/or Customer Licensed Software, or have such Customer Owned Software and/or Customer Licensed Software modified, to make it non-infringing, provided that such modification does not result in a degradation of the functionality, performance or quality of the Customer Owned Software and/or Customer Licensed Software, accompanied by an opinion of counsel reasonably acceptable to Provider as to the non-infringement of the Customer Owned Software and/or Customer Licensed Software and the replacement integrated therein; or (v) create a workaround that would not have remained but for such termination. 5.3 XXXX’x indemnification does not applyany adverse impact on Provider’s ability to perform the Services, accompanied by an opinion of counsel reasonably acceptable to Provider as to the non-infringement of the Customer Owned Software and/or Customer Licensed Software and the replacement integrated therein. Customer correspondingly will defend, indemnify and hold XXXX harmless, shall have no liability or obligation to any of the Provider Indemnitees under this paragraph (a) with respect to any Customer Software incorporated in any Work Product or to the extent that the alleged claim of infringement or misappropriation is caused by: (aA) any such Provider Indemnitee’s use or modification of the Products made by such item (on behalf of itself or any party other party) other than XXXXas expressly authorized pursuant to this Agreement; (bB) a modification such Provider Indemnitees’ failure to use corrections or enhancement to the Products or Services pursuant to designs provided by Customer; (c) the combination, operation or use enhancements made available by Customer to Provider within a reasonable period of any software, equipment time after such corrections or devices not supplied by XXXX enhancements were first made available to the extent the claim would have been avoided if the Products or Services were not used in such combinationProvider without cost; or (dC) failure such Provider Indemnitee’s use of such item in combination with any product or equipment not owned, developed, contemplated or authorized by Customer, except where Customer to use a Software release knew or modified Software provided by XXXX to the extent the claim should reasonably have known that such combination would have been avoided if the updated or modified Software was be used by Customer. 5.4 Each partyProvider or such Provider Indemnitee to provide Services hereunder and did not object. The foregoing sentence constitutes Provider’s obligations sole and liabilities to the other for third party intellectual property infringement claimsexclusive remedy, and each partyCustomer Group’s rights and remedies against the other for such claimsentire liability, are solely and exclusively set forth in this Section with respect to claims of the Agreementinfringement or misappropriation of Third Party Intellectual Property Rights.

Infringement Claims. 5.1 XXXX willIn connection with Licenses granted hereunder, AccessAgility, at its sole expense, defend, indemnify and hold Customer harmless from any claim or suit brought against Customer alleging that a Product or Service infringes a patent, copyright or trade secret, and XXXX will pay all costs and damages in a settlement or award resulting therefrom, if Customer promptly notifies XXXX of the claim and gives XXXX reasonably requested information and cooperation and sole authority agrees to defend and settle indemnify Customer against any third party claim that Customer’s use of the claim. 5.2 Software, as delivered by AccessAgility to Customer and used in accordance with this XXXX and the Documentation, directly infringes a third party copyright or issued patent or directly misappropriates a trade secret (an “Infringement Claim”), provided that: (i) Customer notifies AccessAgility in writing within thirty (30) days of the Infringement Claim; (ii) AccessAgility has sole control of the defense and all related settlement negotiations, as long as such settlement shall not include a financial obligation for Customer; and (iii) Customer provides AccessAgility with the information, assistance and authority to enable AccessAgility to perform AccessAgility’s obligations under this Section. In handling the claimany action based on an Infringement Claim, XXXX may obtainAccessAgility, at no additional charge to Customerits option its own expense, may: (1) procure the right for Customer to continue using the Product Software in accordance with the provisions of this XXXX; (2) make such alterations, modifications or Service at issue, or replace or modify it adjustments to the Software so that it the infringing Software becomes non-infringing. If XXXX is unable to reasonably secure those remediesinfringing without incurring a material diminution in performance or function; (3) replace the Software with a non-infringing substantially similar substitute; or (4) if (1), and if Customer must discontinue use (2), or (3) cannot be achieved after the exercise of an infringing Product or Service thencommercially reasonable efforts, in addition to providing the defense and indemnification set forth above, XXXX either party may terminate the license License. If a Subscription License is terminated pursuant to the infringing Product and Service and this Section, AccessAgility shall refund to Customer, on a pro rata basis, Customer the share unused remainder of any Subscription License fees and Other Fees prepaid by Customer for and received by AccessAgility. If a Perpetual License is terminated pursuant to this Section, AccessAgility shall refund to Customer the future portion amortized remainder of the term that would Perpetual License fees (based on a three (3) year depreciation period from the Delivery Date) and the unused remainder of any prepaid Other Fees received by AccessAgility. If a Trial License is terminated pursuant to this Section, no payment shall be due Customer. In connection with any termination pursuant to this Section, Customer shall comply with all post-termination requirements set forth in this XXXX. AccessAgility shall have remained but no liability or obligations for such termination. 5.3 XXXX’x indemnification does not apply, and Customer correspondingly will defend, indemnify and hold XXXX harmless, an infringement claim pursuant to this Section to the extent that the alleged infringement is caused byit results from: (a) any modification of modifications to the Products Software made by any a party other than XXXXAccessAgility or under the direct control of AccessAgility; (b) a modification or enhancement to the Products or Services pursuant to designs provided by Customer; (c) the combination, operation or use by Customer of any softwarethe Software with non-AccessAgility equipment, equipment devices, software or devices not supplied by XXXX to the extent data, unless the claim would not have been avoided if occurred but for the Products use of the Software in the combination, operation or Services were not used use; (c) use of the Software outside the scope of this XXXX or in such combinationcontravention of the Documentation; or (d) failure AccessAgility’s use of Customer to use a Software release any designs, plans, instructions, specifications, diagrams or modified Software the like, provided by XXXX to the extent the claim would have been avoided Customer, if the updated or modified Software was used by Customer. 5.4 Each party’s obligations and liabilities to the other for third party intellectual property infringement claims, and each party’s rights and remedies against the other for such claims, are solely and exclusively set forth in this Section of the Agreement.any; or