Common use of Infringement Indemnification Clause in Contracts

Infringement Indemnification. Each Party will defend, indemnify, hold the other Party harmless, and pay resulting costs (including damages and reasonable attorneys’ fees finally awarded) from a Claim that (a) in the case of INAP, any Services as provided to Customer (“INAP Material”), or (b) in the case of Customer, the Customer Data or Customer Intellectual Property (“Customer Material” and collectively with INAP Material, the “Material”) infringes a third party’s United States patents, or copyright rights enforceable in a country signatory to the Berne Convention, provided that (i) the indemnified Party promptly notifies the indemnifying Party in writing of the claim; (ii) the indemnified Party cooperates fully and timely with such indemnifying Party in the defense of the Claim; and (iii) such indemnifying Party has sole control of the defense of the Claim and all related settlement negotiations; provided, further, that no settlement shall be entered into by the indemnifying Party prior to the indemnified Party giving its written consent to the terms of such settlement involving un-indemnified or non-monetary claims. Should the use of any indemnifying Party’s Material (or any portion thereof) be enjoined, or if in indemnifying Party’s opinion are likely to be enjoined, indemnifying Party shall, at its sole option, either (1) substitute a functionally equivalent non-infringing version of the affected portion(s) of indemnifying Party’s Material; (2) modify the infringing aspect of such Material so that it no longer infringes but remains a fully functionally equivalent; (3) obtain for the indemnified Party, at the indemnifying Party’s expense, the right to continue to use or receive the benefits of the indemnifying Party’s use of (as applicable) such Material; or (4) if none of the foregoing is commercially feasible and the Material is INAP’s, then Customer shall return the applicable INAP Materials and shall receive a refund for the fees paid by Customer for such INAP Materials. Notwithstanding any provision in this Agreement to the contrary, in no event shall INAP have any duty to indemnify Customer pursuant to this Section in connection with (x) any Service alleged to infringe any third party’s United States patent, or copyright rights enforceable in a country signatory to the Berne Convention, as a result of INAP’s use of or reliance on any of Customer’s Confidential Information, or (y) any product or Customer Offering. Notwithstanding any provision in this Agreement to the contrary, in no event shall either Party have any duty to indemnify the other Party pursuant to this Section with respect to any claim of infringement to the extent that it arises out of: (a) following the designs, specifications, or written instructions of the other Party; (b) the Party seeking indemnification’s failure to obtain proper licenses for any Intellectual Property, including but not limited to, hardware, software, tools, or designs provided the other Party for use hereunder; (c) such indemnified Party’s use of the indemnifying Party’s Material in a manner not reasonably contemplated in this Agreement; or (d) Customer’s modification of the Services, or use of the Services in conjunction with (1) hardware, software, systems, or methods not provided by INAP, or (2) any product or Customer Offering. THE RIGHTS AND REMEDIES PROVIDED IN THIS SECTION SHALL BE EACH PARTY’S EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS FOR INFRINGEMENT OF THE INFRINGING MATERIAL.

Infringement Indemnification. Each Party will defendSUPPLIER, indemnifyat its own expense, shall indemnify and hold harmless PURCHASER and ORDERING PARTIES against any direct or indirect loss or damages sustained by PURCHASER or any ORDERING PARTY as a result of a claim or action brought by any third party for infringement of any intellectual property rights (patent right, copyright, mask work right, trademark, trade secret or other intellectual property right of any third party) by reason of the other Party harmlesspossession, and pay resulting costs (including damages and reasonable attorneys’ fees finally awarded) from a Claim that (a) in the case of INAPmanufacture, any Services as provided to Customer (“INAP Material”)use, offer, import, export, or (b) in sale of the case of Customer, the Customer Data or Customer Intellectual Property (“Customer Material” and collectively with INAP Material, the “Material”) infringes a third party’s United States patents, or copyright rights enforceable in a country signatory to the Berne ConventionPRODUCT, provided that (i) the indemnified Party promptly notifies the indemnifying Party in writing PURCHASER/ORDERING PARTY • gives SUPPLIER, without undue delay, written notice of such claim; • permits SUPPLIER to defend or settle the claim; and • provides SUPPLIER with assistance, information and authority necessary to defend or settle the claim (ii) SUPPLIER shall reimburse PURCHASER and/or ORDERING PARTY for reasonable expenses incurred in providing such assistance and information). In the indemnified Party cooperates fully and timely with such indemnifying Party event that an adverse judgement or injunction is rendered or in the defense opinion of the Claim; and (iii) such indemnifying Party has sole control of the defense of the Claim and all related settlement negotiations; provided, further, that no settlement shall be entered into by the indemnifying Party prior to the indemnified Party giving its written consent to the terms of such settlement involving un-indemnified or non-monetary claims. Should the use of any indemnifying Party’s Material (or any portion thereof) be enjoined, or if in indemnifying Party’s opinion are SUPPLIER is likely to be enjoinedrendered, indemnifying Party shallSUPPLIER shall in addition to the aforesaid, at its sole option, either (1) substitute a functionally equivalent non-infringing version of the affected portion(s) of indemnifying Party’s Material; (2) modify the infringing aspect of such Material so that it no longer infringes but remains a fully functionally equivalent; (3) obtain • procure for the indemnified Party, at the indemnifying Party’s expense, ORDERING PARTY the right to continue to use or receive the benefits of the indemnifying Party’s use of (as applicable) such MaterialPRODUCTS; or (4) if none of • modify the foregoing is commercially feasible and PRODUCTS so they become non-infringing; or • provide replacements that perform the Material is INAP’s, then Customer shall return same functions as the applicable INAP Materials and shall receive a refund for the fees paid by Customer for such INAP MaterialsPRODUCTS; or • [*]. Notwithstanding any provision in this Agreement to the contrary, in no event shall INAP have any duty to indemnify Customer pursuant to PURCHASER’s rights under this Section 16.3 are in connection with (x) addition to, and not in lieu of, any Service alleged to infringe other rights PURCHASER or ORDERING PARTY may have under this FPA, including any third party’s United States patent, or copyright rights enforceable in a country signatory to the Berne ConventionEXHIBIT, as a result of INAP’s use of or reliance on well as any of Customer’s Confidential Information, or (y) any product or Customer Offering. Notwithstanding any provision in this Agreement to the contrary, in no event shall either Party have any duty to indemnify the other Party pursuant to this Section with respect to any claim of infringement to the extent that it arises out of: (a) following the designs, specifications, or written instructions of the other Party; (b) the Party seeking indemnification’s failure to obtain proper licenses for any Intellectual Property, including but not limited to, hardware, software, tools, or designs provided the other Party for use hereunder; (c) such indemnified Party’s use of the indemnifying Party’s Material in a manner not reasonably contemplated in this Agreement; or (d) Customer’s modification of the Services, or use of the Services in conjunction with (1) hardware, software, systems, or methods not provided by INAP, or (2) any product or Customer Offering. THE RIGHTS AND REMEDIES PROVIDED IN THIS SECTION SHALL BE EACH PARTY’S EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS FOR INFRINGEMENT OF THE INFRINGING MATERIALINDIVIDUAL AGREEMENT and/or at applicable law.

Infringement Indemnification. Each Party If a claim is made or an action brought that the Software infringes a patent, or any copyright or trade secret, EXASOL will defend, indemnify, hold the other Party harmlessCustomer harmless against such claim and resulting costs, and pay resulting costs (including damages and reasonable attorneys’ ' fees finally awarded) from a Claim awarded or agreed to in settlement, provided that (a) in the case of INAP, any Services as provided to Customer (“INAP Material”), or (b) in the case of Customer, the Customer Data or Customer Intellectual Property (“Customer Material” and collectively with INAP Material, the “Material”) infringes a third party’s United States patents, or copyright rights enforceable in a country signatory to the Berne Convention, provided that (i) the indemnified Party promptly notifies the indemnifying Party EXASOL in writing of the claim; (ii) the indemnified Party cooperates fully and timely with such indemnifying Party in the defense of the Claim; , and (iiib) such indemnifying Party EXASOL has sole control of the defense of the Claim and all related settlement negotiations; provided. Customer may be represented by separate counsel at its own expense. EXASOL's obligations under this Section are conditioned on Customer's agreement that if the Software, furtheror the use or operation thereof, becomes, or in EXASOL's opinion is likely to become, the subject of such a claim, EXASOL may at its expense, either procure the right for Customer to continue using the Software or, at EXASOL's sole option, replace or modify the same so that no settlement shall be entered into it becomes non-infringing (provided such replacement or modification does not materially adversely affect Customer's intended use of the Software as contemplated in the Documentation). If neither of the foregoing alternatives is available on terms which are commercially acceptable in EXASOL's reasonable judgment, Customer will return the Product on written request by EXASOL and EXASOL will credit or (at Customer's option) refund to Customer, all upfront license fees paid for such Product during the indemnifying Party one (1) year period immediately prior to such infringement claim, less depreciation on a straight line basis over an assumed five year life. EXASOL shall have no liability for, and Customer shall indemnify, defend and hold EXASOL and its subsidiaries and licensors harmless from, any claim based upon (i) the indemnified Party giving its written consent to combination, operation or use of the terms Software with equipment, software or data not supplied or expressly approved in writing by EXASOL, if such claim would have been avoided by use of such settlement involving un-indemnified other equipment, software or non-monetary claims. Should data, (ii) the use of any indemnifying Party’s Material (or any portion thereof) be enjoined, or if in indemnifying Party’s opinion are likely to be enjoined, indemnifying Party shall, at its sole option, either (1) substitute a functionally equivalent non-infringing version of the affected portion(s) of indemnifying Party’s Material; (2) modify Software other than a current, unaltered release, if such infringement would have been avoided by the infringing aspect of such Material so that it no longer infringes but remains a fully functionally equivalent; (3) obtain for the indemnified Party, at the indemnifying Party’s expense, the right to continue to use or receive the benefits of the indemnifying Party’s use of (as applicable) such Materiala current, unaltered release; or (4iii) if none of the foregoing is commercially feasible and the Material is INAP’s, then Customer shall return the applicable INAP Materials and shall receive a refund for the fees paid by Customer for such INAP Materials. Notwithstanding any provision in this Agreement to the contrary, in no event shall INAP have any duty to indemnify Customer pursuant to this Section in connection with (x) any Service alleged to infringe any third party’s United States patent, or copyright rights enforceable in a country signatory to the Berne Convention, as a result of INAP’s use of or reliance on any of Customer’s Confidential Information, or (y) any product or Customer Offering. Notwithstanding any provision in this Agreement to the contrary, in no event shall either Party have any duty to indemnify the other Party pursuant to this Section with respect to any claim of infringement to the extent that it arises out of: (a) following the designs, specifications, or written instructions of the other Party; (b) the Party seeking indemnification’s failure to obtain proper licenses for any Intellectual Property, including but not limited to, hardware, software, tools, or designs provided the other Party for use hereunder; (c) such indemnified Party’s use of the indemnifying Party’s Material in a manner not reasonably contemplated in this Agreement; or (d) Customer’s modification of the Services, Software that is not done or use of the Services expressly authorized in conjunction with (1) hardware, software, systems, or methods not provided writing by INAP, or (2) any product or Customer OfferingEXASOL. THE RIGHTS FOREGOING STATES THE ENTIRE REMEDY OF CUSTOMER AND REMEDIES PROVIDED IN THIS SECTION SHALL BE EACH PARTY’S EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS FOR THE SOLE OBLIGATION OF EXASOL WITH RESPECT TO INFRINGEMENT OF THE INFRINGING MATERIALCLAIMS.

Infringement Indemnification. Each Party will In the event of any claim, suit, or proceeding brought against you based on an allegation that a PRODUCT or consulting deliverable hereunder infringes upon any patent, copyright or trade secret of any third party ("Infringement Claim"), HEIMDALL shall defend, indemnifyor at its option, hold the other Party harmlesssettle such Infringement Claim, and shall pay resulting all costs (including attorney’s fees) associated with the defense of such Infringement Claim, and all damages and reasonable attorneys’ fees finally awarded) from a Claim that (a) awarded or settlements undertaken by HEIMDALL in the case resolution of INAP, any Services as provided to Customer (“INAP Material”), or (b) in the case of Customer, the Customer Data or Customer Intellectual Property (“Customer Material” and collectively with INAP Material, the “Material”) infringes a third party’s United States patents, or copyright rights enforceable in a country signatory to the Berne Conventionsuch Infringement Claim, provided that (i) the indemnified Party you: promptly notifies the indemnifying Party notify HEIMDALL in writing of your notification or discovery of an Infringement Claim such that HEIMDALL is not prejudiced by any delay in such notification; give HEIMDALL sole control over the claimdefense or settlement of the Infringement Claim; (ii) the indemnified Party cooperates fully and timely with such indemnifying Party provide reasonable assistance in the defense of the same. Following notice of an Infringement Claim; and (iii) such indemnifying Party has sole control of the defense of the Claim and all related settlement negotiations; provided, further, that no settlement shall be entered into by the indemnifying Party prior to the indemnified Party giving its written consent to the terms of such settlement involving un-indemnified or non-monetary claims. Should the use of any indemnifying Party’s Material (or any portion thereof) be enjoined, or if in indemnifying Party’s opinion are likely to be enjoinedHEIMDALL believes such a claim is likely, indemnifying Party shall, HEIMDALL may at its sole expense and option, either : (1i) substitute a functionally equivalent non-infringing version of the affected portion(s) of indemnifying Party’s Material; (2) modify the infringing aspect of such Material so that it no longer infringes but remains a fully functionally equivalent; (3) obtain procure for the indemnified Party, at the indemnifying Party’s expense, you the right to continue to use the alleged infringing PRODUCT or receive consulting deliverable; (ii) replace or modify the benefits of the indemnifying Party’s use of (as applicable) such MaterialPRODUCT or consulting deliverable to make it non-infringing; or (4iii) if none accept return of the foregoing is commercially feasible and the Material is INAP’sPRODUCT or consulting deliverable and, then Customer shall return the applicable INAP Materials and shall receive a refund for the fees paid by Customer PRODUCT, provide you with a prorated refund using a three (3) year straight line depreciation basis, or, for the consulting deliverable, refund payments made for the deliverable. HEIMDALL assumes no liability for any Infringement Claims or allegations of infringement based on: (i) your use of any PRODUCT or consulting deliverable after notice that you should cease use of such INAP Materials. Notwithstanding any provision in this Agreement PRODUCT or consulting deliverable due to the contrary, in no event shall INAP have any duty to indemnify Customer pursuant to this Section in connection with an Infringement Claim; (xii) any Service alleged to infringe any third party’s United States patent, or copyright rights enforceable in a country signatory to the Berne Convention, as a result of INAP’s use of or reliance on any of Customer’s Confidential Information, or (y) any product or Customer Offering. Notwithstanding any provision in this Agreement to the contrary, in no event shall either Party have any duty to indemnify the other Party pursuant to this Section with respect to any claim of infringement to the extent that it arises out of: (a) following the designs, specifications, or written instructions modification of the other PartyPRODUCT or consulting deliverable by you or at your direction; (biii) your combination of the Party seeking indemnification’s failure to obtain proper licenses for any Intellectual Property, including but not limited to, PRODUCT or consulting deliverable with non-HEIMDALL hardware, software, toolsservices, data or designs provided other content or materials if such Infringement Claim would have been avoided by the other Party for use hereunder; (c) such indemnified Party’s use of the indemnifying Party’s Material in a manner not reasonably contemplated in this Agreement; PRODUCT or (d) Customer’s modification of the Services, or use of the Services in conjunction with (1) hardware, software, systems, or methods not provided by INAP, or (2) any product or Customer Offeringconsulting deliverable alone. THE RIGHTS AND REMEDIES PROVIDED IN THIS SECTION SHALL BE EACH PARTY’S FOREGOING STATES YOUR EXCLUSIVE REMEDY FOR WITH RESPECT TO ANY AND ALL CLAIMS FOR INFRINGEMENT OF THE INFRINGING MATERIALCLAIM.

Infringement Indemnification. Each Party will In the event of any claim, suit, or proceeding brought against you based on an allegation that a PRODUCT or consulting deliverable hereunder infringes upon any patent, copyright or trade secret of any third party (“Infringement Claim”), HEIMDALL shall defend, indemnifyor at its option, hold the other Party harmlesssettle such Infringement Claim, and shall pay resulting all costs (including attorney’s fees) associated with the defense of such Infringement Claim, and all damages and reasonable attorneys’ fees finally awarded) from a Claim that (a) awarded or settlements undertaken by HEIMDALL in the case resolution of INAP, any Services as provided to Customer (“INAP Material”), or (b) in the case of Customer, the Customer Data or Customer Intellectual Property (“Customer Material” and collectively with INAP Material, the “Material”) infringes a third party’s United States patents, or copyright rights enforceable in a country signatory to the Berne Conventionsuch Infringement Claim, provided that (i) the indemnified Party you: promptly notifies the indemnifying Party notify HEIMDALL in writing of your notification or discovery of an Infringement Claim such that HEIMDALL is not prejudiced by any delay in such notification; give HEIMDALL sole control over the claimdefense or settlement of the Infringement Claim; (ii) the indemnified Party cooperates fully and timely with such indemnifying Party provide reasonable assistance in the defense of the same. Following notice of an Infringement Claim; and (iii) such indemnifying Party has sole control of the defense of the Claim and all related settlement negotiations; provided, further, that no settlement shall be entered into by the indemnifying Party prior to the indemnified Party giving its written consent to the terms of such settlement involving un-indemnified or non-monetary claims. Should the use of any indemnifying Party’s Material (or any portion thereof) be enjoined, or if in indemnifying Party’s opinion are likely to be enjoinedHEIMDALL believes such a claim is likely, indemnifying Party shall, HEIMDALL may at its sole expense and option, either : (1i) substitute a functionally equivalent non-infringing version of the affected portion(s) of indemnifying Party’s Material; (2) modify the infringing aspect of such Material so that it no longer infringes but remains a fully functionally equivalent; (3) obtain procure for the indemnified Party, at the indemnifying Party’s expense, you the right to continue to use the alleged infringing PRODUCT or receive consulting deliverable; (ii) replace or modify the benefits of the indemnifying Party’s use of (as applicable) such MaterialPRODUCT or consulting deliverable to make it non-infringing; or (4iii) if none accept return of the foregoing is commercially feasible and the Material is INAP’sPRODUCT or consulting deliverable and, then Customer shall return the applicable INAP Materials and shall receive a refund for the fees paid by Customer PRODUCT, provide you with a prorated refund using a three (3) year straight-line depreciation basis, or, for the consulting deliverable, refund payments made for the deliverable. HEIMDALL assumes no liability for any Infringement Claims or allegations of infringement based on: (i) your use of any PRODUCT or consulting deliverable after notice that you should cease use of such INAP Materials. Notwithstanding any provision in this Agreement PRODUCT or consulting deliverable due to the contrary, in no event shall INAP have any duty to indemnify Customer pursuant to this Section in connection with an Infringement Claim; (xii) any Service alleged to infringe any third party’s United States patent, or copyright rights enforceable in a country signatory to the Berne Convention, as a result of INAP’s use of or reliance on any of Customer’s Confidential Information, or (y) any product or Customer Offering. Notwithstanding any provision in this Agreement to the contrary, in no event shall either Party have any duty to indemnify the other Party pursuant to this Section with respect to any claim of infringement to the extent that it arises out of: (a) following the designs, specifications, or written instructions modification of the other PartyPRODUCT or consulting deliverable by you or at your direction; (biii) your combination of the Party seeking indemnification’s failure to obtain proper licenses for any Intellectual Property, including but not limited to, PRODUCT or consulting deliverable with non-HEIMDALL hardware, software, toolsservices, data or designs provided other content or materials if such Infringement Claim would have been avoided by the other Party for use hereunder; (c) such indemnified Party’s use of the indemnifying Party’s Material in a manner not reasonably contemplated in this Agreement; PRODUCT or (d) Customer’s modification of the Services, or use of the Services in conjunction with (1) hardware, software, systems, or methods not provided by INAP, or (2) any product or Customer Offeringconsulting deliverable alone. THE RIGHTS AND REMEDIES PROVIDED IN THIS SECTION SHALL BE EACH PARTY’S FOREGOING STATES YOUR EXCLUSIVE REMEDY FOR WITH RESPECT TO ANY AND ALL CLAIMS FOR INFRINGEMENT OF THE INFRINGING MATERIALCLAIM.

Infringement Indemnification. Each Party will In the event of any claim, suit, or proceeding brought against you based on an allegation that a PRODUCT or consulting deliverable hereunder (excluding Open Source Software) infringes upon any patent, copyright or trade secret of any third party ("Infringement Claim"), cellasys shall defend, indemnifyor at its option, hold the other Party harmlesssettle such Infringement Claim, and shall pay resulting all costs (including attorney’s fees) associated with the defense of such Infringement Claim, and all damages and reasonable attorneys’ fees finally awarded) from a Claim that (a) awarded or settlements undertaken by cellasys in the case resolution of INAP, any Services as provided to Customer (“INAP Material”), or (b) in the case of Customer, the Customer Data or Customer Intellectual Property (“Customer Material” and collectively with INAP Material, the “Material”) infringes a third party’s United States patents, or copyright rights enforceable in a country signatory to the Berne Conventionsuch Infringement Claim, provided that (i) the indemnified Party you: promptly notifies the indemnifying Party notify cellasys in writing of your notification or discovery of an Infringement Claim such that cellasys is not prejudiced by any delay in such notification; give cellasys sole control over the claimdefense or settlement of the Infringement Claim; (ii) the indemnified Party cooperates fully and timely with such indemnifying Party provide reasonable assistance in the defense of the same. Following notice of an Infringement Claim; and (iii) such indemnifying Party has sole control of the defense of the Claim and all related settlement negotiations; provided, further, that no settlement shall be entered into by the indemnifying Party prior to the indemnified Party giving its written consent to the terms of such settlement involving un-indemnified or non-monetary claims. Should the use of any indemnifying Party’s Material (or any portion thereof) be enjoined, or if in indemnifying Party’s opinion are likely to be enjoinedcellasys believes such a claim is likely, indemnifying Party shall, cellasys may at its sole expense and option, either : (1i) substitute a functionally equivalent non-infringing version of the affected portion(s) of indemnifying Party’s Material; (2) modify the infringing aspect of such Material so that it no longer infringes but remains a fully functionally equivalent; (3) obtain procure for the indemnified Party, at the indemnifying Party’s expense, you the right to continue to use the alleged infringing PRODUCT or receive consulting deliverable; (ii) replace or modify the benefits of the indemnifying Party’s use of (as applicable) such MaterialPRODUCT or consulting deliverable to make it non-infringing; or (4iii) if none accept return of the foregoing is commercially feasible and the Material is INAP’sPRODUCT or consulting deliverable and, then Customer shall return the applicable INAP Materials and shall receive a refund for the fees paid by Customer PRODUCT, provide you with a prorated refund using a three (3) year straight line depreciation basis, or, for the consulting deliverable, refund payments made for the deliverable. cellasys assumes no liability for any Infringement Claims or allegations of infringement based on: (i) your use of any PRODUCT or consulting deliverable after notice that you should cease use of such INAP Materials. Notwithstanding any provision in this Agreement PRODUCT or consulting deliverable due to the contrary, in no event shall INAP have any duty to indemnify Customer pursuant to this Section in connection with an Infringement Claim; (xii) any Service alleged to infringe any third party’s United States patent, or copyright rights enforceable in a country signatory to the Berne Convention, as a result of INAP’s use of or reliance on any of Customer’s Confidential Information, or (y) any product or Customer Offering. Notwithstanding any provision in this Agreement to the contrary, in no event shall either Party have any duty to indemnify the other Party pursuant to this Section with respect to any claim of infringement to the extent that it arises out of: (a) following the designs, specifications, or written instructions modification of the other PartyPRODUCT or consulting deliverable by you or at your direction; (biii) your combination of the Party seeking indemnification’s failure to obtain proper licenses for any Intellectual Property, including but not limited to, PRODUCT or consulting deliverable with non-cellasys hardware, software, toolsservices, data or designs provided other content or materials if such Infringement Claim would have been avoided by the other Party for use hereunder; (c) such indemnified Party’s use of the indemnifying Party’s Material in a manner not reasonably contemplated in this Agreement; PRODUCT or (d) Customer’s modification of the Services, or use of the Services in conjunction with (1) hardware, software, systems, or methods not provided by INAP, or (2) any product or Customer Offeringconsulting deliverable alone. THE RIGHTS AND REMEDIES PROVIDED IN THIS SECTION SHALL BE EACH PARTY’S FOREGOING STATES YOUR EXCLUSIVE REMEDY FOR WITH RESPECT TO ANY AND ALL CLAIMS FOR INFRINGEMENT OF THE INFRINGING MATERIALCLAIM.

Infringement Indemnification. Each Party will defendThe Alliance Partner providing materials ("Providing Party"), at its own expense, shall indemnify, defend and hold harmless the other Party harmlessparty ("Receiving Party"), its directors, officers, employees, and pay resulting costs agents (including damages their respective successors and reasonable attorneys’ fees finally awarded) from a Claim that (a) in the case of INAP, any Services as provided to Customer (“INAP Material”assigns), against any claims based on an allegation that any software, source codes, documentation or other materials (b) in the case of Customercollectively, the Customer Data "Provider Materials") furnished to the Receiving Party under this Agreement, or Customer Intellectual Property (“Customer Material” and collectively with INAP Materialthe use by, or sale to, the “Material”) Receiving Party of any of such Provider Materials delivered or to be delivered under this Agreement, infringes any patent, copyright or other proprietary right, and the Providing Party shall pay any royalties and other costs related to its settlement of such claim, and the cost and damages, including attorneys' fees, finally awarded as a third party’s United States patentsresult of any suit based on such claim, or copyright rights enforceable provided the Receiving Party promptly notifies the Providing Party in a country signatory writing of any such claim and gives the Providing Party authority and such assistance and information as is available to the Berne ConventionReceiving Party for the defense of such claim. Any such assistance or information which is furnished by Receiving Party at the written request of the Providing Party shall be at the expense of the Providing Party. Notwithstanding, provided that (i) the indemnified Providing Party promptly notifies shall have the indemnifying Party in writing complete control of the defense to any claim brought against Receiving Party under which Receiving Party invokes the indemnity hereunder, including the settlement of any such claim; and (ii) the Providing Party shall not consent to any injunction decree, judgment or settlement which would have the effect of preventing Receiving Party's use of any software, programming documentation, or other materials without Receiving Party's prior written consent. The foregoing provisions shall not apply to any infringement arising out of: (i) use of the Provider Materials other than in accordance with applicable documentation or instructions supplied by the Providing Party; (ii) the indemnified Party cooperates fully and timely with such indemnifying Party in the defense any alteration, modification or revision of the ClaimProvider Materials not expressly authorized in writing by the Providing Party; and or (iii) such indemnifying Party has sole control the combination of the defense of the Claim and all related settlement negotiations; provided, further, that no settlement shall be entered into Provider Materials with materials not supplied by the indemnifying Party prior to the indemnified Party giving its written consent to the terms of such settlement involving un-indemnified or non-monetary claims. Should the use of any indemnifying Providing Party’s Material (or any portion thereof) be enjoined, or if in indemnifying Party’s opinion are likely to be enjoined, indemnifying Party shall, at its sole option, either (1) substitute a functionally equivalent non-infringing version of the affected portion(s) of indemnifying Party’s Material; (2) modify the infringing aspect of such Material so that it no longer infringes but remains a fully functionally equivalent; (3) obtain for the indemnified Party, at the indemnifying Party’s expense, the right to continue to use or receive the benefits of the indemnifying Party’s use of (as applicable) such Material; or (4) if none of the foregoing is commercially feasible and the Material is INAP’s, then Customer shall return the applicable INAP Materials and shall receive a refund for the fees paid by Customer for such INAP Materials. Notwithstanding any provision in this Agreement to the contrary, in no event shall INAP have any duty to indemnify Customer pursuant to this Section in connection with (x) any Service alleged to infringe any third party’s United States patent, or copyright rights enforceable in a country signatory to the Berne Convention, as a result of INAP’s use of or reliance on any of Customer’s Confidential Information, or (y) any product or Customer Offering. Notwithstanding any provision in this Agreement to the contrary, in no event shall either Party have any duty to indemnify the other Party pursuant to this Section with respect to any claim of infringement to the extent that it arises out of: (a) following the designs, specifications, or written instructions of the other Party; (b) the Party seeking indemnification’s failure to obtain proper licenses for any Intellectual Property, including but not limited to, hardware, software, tools, or designs provided the other Party for use hereunder; (c) such indemnified Party’s use of the indemnifying Party’s Material in a manner not reasonably contemplated in this Agreement; or (d) Customer’s modification of the Services, or use of the Services in conjunction with (1) hardware, software, systems, or methods not provided by INAP, or (2) any product or Customer Offering. THE RIGHTS AND REMEDIES PROVIDED IN THIS SECTION SHALL BE EACH PARTY’S EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS FOR INFRINGEMENT OF THE INFRINGING MATERIAL.

Infringement Indemnification. Each Party will defend, indemnify, hold the other Party harmless, and pay resulting costs (including damages and reasonable attorneys’ fees finally awarded) from a Claim that (a) in the case of INAPVidyo will defend or settle, at its expense, any Services as provided to action brought against Customer (“INAP Material”)based upon the claim that the Software or Product, if used within the scope of the License granted under this Agreement, directly infringe a registered United States, European Union or (b) in the case of CustomerCommonwealth patent or copyright; provided, the Customer Data or Customer Intellectual Property (“Customer Material” and collectively with INAP Materialhowever, the “Material”) infringes a third party’s United States patents, or copyright rights enforceable in a country signatory to the Berne Convention, provided that that: (i) the indemnified Party Customer shall notify Vidyo promptly notifies the indemnifying Party in writing of the any such claim; (ii) the indemnified Party cooperates fully Customer shall not enter into any settlement or compromise any claim without Vidyo's prior written consent; (iii) Vidyo shall have sole control of any such action and timely with such indemnifying Party in the defense of the Claimsettlement negotiations; and (iv) Customer shall provide Vidyo with information and assistance, at Vidyo's request, necessary to settle or defend such claim. Vidyo agrees to pay all damages and costs finally awarded against Customer attributable to such claim. The foregoing states the sole liability of Vidyo and the exclusive remedy of Customer for any infringement of intellectual property rights by the Product or any other items provided by Vidyo hereunder.(b) If the Product or Software becomes, or in the opinion of Vidyo may become, the subject of a claim of infringement of any third party right, Vidyo may, at its option and in its discretion: (i) procure for Customer the right to use the Product free of any liability; (ii) replace or modify the Product to make it non-infringing; or (iii) repurchase the applicable licenses or Products. (c) Customer will defend or settle, at its expense, any action brought against Vidyo based upon the claim that any modifications to the Product or combination of the Product with products infringes or violates any third party right; provided, however, that: (i) Vidyo shall notify Customer promptly in writing of any such indemnifying Party has claim; (ii) Vidyo shall not enter into any settlement or compromise any such claim without Customer's prior written consent; iii) Customer shall have sole control of the defense of the Claim any such action and all related settlement negotiations; provided, further, that no settlement and (iv) Vidyo shall be entered into by the indemnifying Party prior to the indemnified Party giving its written consent to the terms of such settlement involving un-indemnified or non-monetary claims. Should the use of any indemnifying Party’s Material (or any portion thereof) be enjoined, or if in indemnifying Party’s opinion are likely to be enjoined, indemnifying Party shallprovide Customer with information and assistance, at its sole option, either (1) substitute a functionally equivalent non-infringing version of the affected portion(s) of indemnifying Party’s Material; (2) modify the infringing aspect of such Material so that it no longer infringes but remains a fully functionally equivalent; (3) obtain for the indemnified Party, at the indemnifying Party’s Customer's request and expense, the right necessary to continue settle or defend such claim. Customer agrees to use or receive the benefits of the indemnifying Party’s use of (as applicablepay all damages and costs finally awarded against Vidyo attributable to such claim.(d) such Material; or (4) if none of the foregoing is commercially feasible and the Material is INAP’s, then Customer shall return the applicable INAP Materials and shall receive a refund for the fees paid by Customer for such INAP Materials. Notwithstanding any provision in this Agreement to the contrary, in no event shall INAP have any duty to indemnify Customer pursuant to this Section in connection with (x) any Service alleged to infringe any third party’s United States patent, or copyright rights enforceable in a country signatory to the Berne Convention, as a result of INAP’s use of or reliance on any of Customer’s Confidential Information, or (y) any product or Customer Offering. Notwithstanding any provision in this Agreement to the contrary, in no event shall either Party have any duty to indemnify the other Party pursuant to this Section with respect to any claim of infringement to the extent that it arises out of: Subsection (a) following above, Vidyo assumes no liability hereunder for, and shall have no obligation to defend Customer or to pay costs, damages or attorney's fees for, any claim based upon any modifications to the designs, specifications, or written instructions of the other Party; (b) the Party seeking indemnification’s failure to obtain proper licenses for any Intellectual Property, including but not limited to, hardware, software, tools, or designs provided the other Party for use hereunder; (c) such indemnified Party’s use of the indemnifying Party’s Material in a manner not reasonably contemplated in this Agreement; or (d) Customer’s modification of the Services, or use of the Services in conjunction with (1) hardware, software, systems, or methods Product not provided by INAP, Vidyo or (2) any product or Customer Offering. THE RIGHTS AND REMEDIES PROVIDED IN THIS SECTION SHALL BE EACH PARTY’S EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS FOR INFRINGEMENT OF THE INFRINGING MATERIALcombination of the Product with other products.

Infringement Indemnification. Each Party will defendTo the best of Contractor’s knowledge, indemnifythe Authorized User’s permitted use of licensed software shall not infringe the intellectual property rights of any third party. If a third party makes a claim against the Authorized User that any information, hold design, specification, instruction, software, data, or material furnished by Contractor and used by the other Party harmlessAuthorized User infringes its intellectual property rights, Contractor shall indemnify and pay resulting costs at its own expense (including damages payment of attorney’s fees, expert fees and reasonable attorneys’ fees finally awardedcourt costs) defend the Authorized User against any loss, cost, damage, liability or expense from a Claim any and all third party claims that (a) in the case license software infringes any patent, copyright, trade secret or other proprietary right of INAP, any Services as provided to Customer (“INAP Material”), or (b) in the case of Customer, the Customer Data or Customer Intellectual Property (“Customer Material” and collectively with INAP Material, the “Material”) infringes a third party’s United States patents, or copyright rights enforceable party and shall indemnify and hold harmless the Authorized User from any amounts assessed against them in a country signatory resulting judgment or amounts to the Berne Convention, settle such claims provided that the Authorized User does the following: Contract #505ENT-M17-WICOMPUTER-02 23 of 25 Computer Equipment and Related Services  notifies Contractor promptly in writing, not later than thirty (i30) days after the indemnified Party promptly notifies the indemnifying Party in writing Authorized User receives notice of the claimclaim (or sooner if required by applicable law); (ii) the indemnified Party cooperates fully and timely with such indemnifying Party in the defense of the Claim; and (iii) such indemnifying Party has  gives Contractor sole control of the defense of the Claim and all related any settlement negotiations; providedand  gives Contractor the information, furtherauthority, that no settlement shall be entered into by and assistance the indemnifying Party prior provider needs to defend against or settle the indemnified Party giving its written consent to the terms of such settlement involving un-indemnified or non-monetary claimsclaim. Should the use of any indemnifying Party’s Material (or any portion thereof) be enjoinedIf licensed software is, or if in indemnifying Party’s opinion are is likely to be enjoinedbe, indemnifying Party shallthe subject of an infringement claim, or Contractor believes or it is determined that any of the material may have violated someone else’s intellectual property rights, Contractor, at its sole optionexpense, shall choose to either (1i) substitute a functionally equivalent modify the material to be non-infringing version (while substantially preserving its utility or functionality) (ii) obtain a license to allow for the Authorized User’s continued use, or (iii) replace the licensed software with another system or components of comparable quality and functionality. If Contractor is unable to provide one of these remedies in (i) nor (ii) within sixty (60) days of notice of the affected portion(s) of indemnifying Party’s Material; claim (2) modify unless such period is extended by the infringing aspect of such Material so that it no longer infringes but remains a fully functionally equivalent; (3) obtain for the indemnified PartyState), at the indemnifying Party’s expense, Contractor shall have the right to continue to use or receive the benefits of the indemnifying Party’s use of (as applicable) such Material; or (4) if none of the foregoing is commercially feasible terminate this Contract and the Material is INAP’s, then Customer shall return the applicable INAP Materials and shall receive a refund all fees paid hereunder for the fees paid by Customer for such INAP Materials. Notwithstanding any provision in this Agreement to the contrary, in no event shall INAP have any duty to indemnify Customer pursuant to this Section in connection with (x) any Service alleged to infringe any third party’s United States patent, or copyright rights enforceable in a country signatory to the Berne Convention, as a result of INAP’s use of or reliance on any of Customer’s Confidential Information, or (y) any product or Customer Offering. Notwithstanding any provision in this Agreement to the contrary, in no event shall either Party have any duty to indemnify the other Party pursuant to this Section with respect to any claim of infringement to the extent that it arises out of: (a) following the designs, specifications, or written instructions of the other Party; (b) the Party seeking indemnification’s failure to obtain proper licenses for any Intellectual Property, including but not limited to, hardware, licensed software, tools, or designs provided the other Party for use hereunder; (c) such indemnified Party’s use of the indemnifying Party’s Material in a manner not reasonably contemplated in this Agreement; or (d) Customer’s modification of the Services, or use of the Services in conjunction with (1) hardware, software, systems, or methods not provided by INAP, or (2) any product or Customer Offering. THE RIGHTS AND REMEDIES PROVIDED IN THIS SECTION SHALL BE EACH PARTY’S EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS FOR INFRINGEMENT OF THE INFRINGING MATERIAL.

Infringement Indemnification. Each Party will defendSubject to Section 11.2 below, CenTrak will, as further described below, indemnify, defend, and hold the other Party Customer harmless, at its expense, against any claim or suit brought by a third party against Customer alleging that any CenTrak Products furnished under this Agreement infringe the United States patent, trademark, copyright or other intellectual property right of a third party. CenTrak will pay all settlements entered into or damages finally awarded based on any such claim or suit; provided that Customer gives CenTrak prompt written notice of such claim and pay resulting costs gives CenTrak information, reasonable assistance (including damages at CenTrak’s sole expense), and reasonable attorneys’ fees finally awardedsole authority to defend or settle the claim. CenTrak shall not enter into any stipulated judgment or settlement that purports to bind Customer without a full release of Customer or without Customer’s express written authorization, which shall not be unreasonably withheld or delayed. In defense or settlement of the claim, CenTrak may obtain for Customer the right to continue using the CenTrak Products, replace or modify the CenTrak Products so that they become non-infringing, or, if such remedies are not reasonably available, grant Customer a refund for the CenTrak Products as depreciated over five (5) from a Claim that years and accept their return. CenTrak will not have any liability if the alleged infringement is based upon (a) the use of the CenTrak Products in the case of INAP, any Services as provided to Customer (“INAP Material”), combination with other products or devices not furnished by CenTrak; (b) in the case of Customer, the Customer Data or Customer Intellectual Property (“Customer Material” and collectively with INAP Material, the “Material”) infringes a third party’s United States patents, or copyright rights enforceable in a country signatory to the Berne Convention, provided that (i) the indemnified Party promptly notifies the indemnifying Party in writing of the claim; (ii) the indemnified Party cooperates fully and timely with such indemnifying Party in the defense of the Claim; and (iii) such indemnifying Party has sole control of the defense of the Claim and all related settlement negotiations; provided, further, that no settlement shall be entered into by the indemnifying Party prior to the indemnified Party giving its written consent to the terms of such settlement involving un-indemnified or non-monetary claims. Should the use of the CenTrak Products in a manner for which they were not designed as described by the CenTrak Documentation; (c) any indemnifying Party’s Material modification of the CenTrak Products by anyone other than CenTrak; (d) any use of CenTrak Products by Customer after Customer learns of such allegation of infringement; (e) or any portion thereof) be enjoined, or if in indemnifying Party’s opinion are likely failure by Customer to be enjoined, indemnifying Party shall, at its sole option, either (1) substitute utilize a functionally equivalent non-infringing version of the affected portion(s) of indemnifying PartyCenTrak Products made available by CenTrak along with notice that such update is non-infringing. The obligations set forth in this Section 11.1 are CenTrak’s Material; (2) modify the infringing aspect of such Material so that it no longer infringes but remains a fully functionally equivalent; (3) obtain sole obligations, and Customer’s sole and exclusive remedy, for the indemnified Party, at the indemnifying Party’s expense, the right to continue to use or receive the benefits of the indemnifying Party’s use of (as applicable) such Material; or (4) if none of the foregoing is commercially feasible and the Material is INAP’s, then Customer shall return the applicable INAP Materials and shall receive a refund for the fees paid by Customer for such INAP Materials. Notwithstanding any provision in this Agreement to the contrary, in no event shall INAP have any duty to indemnify Customer pursuant to this Section in connection with (x) any Service alleged to infringe any CenTrak Products infringing third party’s United States patent, or copyright rights enforceable in a country signatory to the Berne Convention, as a result of INAP’s use of or reliance on any of Customer’s Confidential Information, or (y) any product or Customer Offering. Notwithstanding any provision in this Agreement to the contrary, in no event shall either Party have any duty to indemnify the other Party pursuant to this Section with respect to any claim of infringement to the extent that it arises out of: (a) following the designs, specifications, or written instructions of the other Party; (b) the Party seeking indemnification’s failure to obtain proper licenses for any Intellectual Property, including but not limited to, hardware, software, tools, or designs provided the other Party for use hereunder; (c) such indemnified Party’s use of the indemnifying Party’s Material in a manner not reasonably contemplated in this Agreement; or (d) Customer’s modification of the Services, or use of the Services in conjunction with (1) hardware, software, systems, or methods not provided by INAP, or (2) any product or Customer Offering. THE RIGHTS AND REMEDIES PROVIDED IN THIS SECTION SHALL BE EACH PARTY’S EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS FOR INFRINGEMENT OF THE INFRINGING MATERIALparty intellectual property rights.