Common use of INTELLECTUAL PROPERTY RIGHTS INDEMNIFICATION Clause in Contracts

INTELLECTUAL PROPERTY RIGHTS INDEMNIFICATION. a. Subject to the provisions of subsection d below, XXXXXX will indemnify and hold Customer, its Affiliates, and their officers, directors, employees and distributors, customers and end users harmless from and against all claims, causes of action, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) asserted by third parties which arise out of a claim that Software Services or Hardware Platforms infringe any patent, copyright or trade secret rights of a third party. The foregoing indemnification shall not apply in the event that and to the extent such claim arises as a result of: i. the failure of Customer, its Affiliates or any of their employees or agents to comply with any written instructions provided by XXXXXX; or ii. breach of this Agreement by or negligence or willful misconduct of Customer, its Affiliates or any of their employees or agents; or iii. any modification of the products or combination of Software Services or Hardware Platforms with other products or processes not made by OKKAMI. b. If Customer’s use of Software Services or Hardware Platforms is enjoined, or if OKKAMI wishes to minimize its liability hereunder, OKKAMI may, at its option and expense, either: i. substitute substantially equivalent non-infringing service or platform for the infringing Software Services or Hardware Platforms; ii. modify the infringing Software Services or Hardware Platforms so that it no longer infringes but remains functionally equivalent; or iii. obtain for Customer the right to continue using such Software Services or Hardware Platforms. If none of the foregoing is feasible, OKKAMI will accept a return of Software Services or Hardware Platforms which is subject to the injunction and refund to Customer the amount paid, including the license fee applicable thereto. THE FOREGOING SUBSECTIONS a. AND b. STATE THE ENTIRE LIABILITY AND OBLIGATION OF OKKAMI WITH RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT. c. Subject to the provisions of subsection d below, Customer will indemnify and hold OKKAMI, its Affiliates, and their officers, directors, employees harmless from and against all claims, causes of action, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) related to this Agreement and asserted by third parties which arise out of a claim that Software Services or Hardware Platforms infringe any patent, copyright or trade secret rights of a third party, if and to the extent such claim arises as a result of: i. the failure of Customer, its Affiliates or any of their employees or agents to comply with any written instructions provided by OKKAMI or its authorized designee; ii. breach of this Agreement by or negligence or willful misconduct of Customer, its Affiliates or any of their employees or agents; or iii. any modification of the equipment or combination of Software Services or Hardware Platforms with other products or processes not supplied by OKKAMI. The foregoing indemnification shall not apply in the event that such claim arises as a result of breach of this Agreement by or the negligence or willful misconduct of OKKAMI, its Affiliates or any of their employees or agents. d. If either party seeks indemnification from the other hereunder, it shall promptly give notice to the other party of any such claim or suit threatened, made or filed against it which forms the basis for such claim of indemnification and shall cooperate fully with the other party in the investigation and defense of all such claims or suits. The indemnifying party shall have the option to assume the other party’s defense. In any such claim or suit with counsel reasonably satisfactory to the other party. No settlement or compromise shall be binding on a party hereto without its prior written consent, such consent not to be unreasonably withheld.

INTELLECTUAL PROPERTY RIGHTS INDEMNIFICATION. a. Subject to the provisions of subsection d below, XXXXXX will indemnify and hold Customer, its Affiliates, and their officers, directors, employees and distributors, customers and end users harmless from and against all claims, causes of action, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) asserted by third parties which arise out of a claim that Software Services or Hardware Platforms infringe any patent, copyright or trade secret rights of a third party. The foregoing indemnification shall not apply in the event that and to the extent such claim arises as a result of: i. the failure of Customer, its Affiliates or any of their employees or agents to comply with any written instructions provided by XXXXXX; or ii. breach of this Agreement by or negligence or willful misconduct of Customer, its Affiliates or any of their employees or agents; or iii. any modification of the products or combination of Software Services or Hardware Platforms with other products or processes not made by OKKAMI. b. If Customer’s use of Software Services or Hardware Platforms is enjoined, or if OKKAMI wishes to minimize its liability hereunder, OKKAMI may, at its option and expense, either: i. substitute substantially equivalent non-infringing service or platform for the infringing Software Services or Hardware Platforms; ii. modify the infringing Software Services or Hardware Platforms so that it no longer infringes but remains functionally equivalent; or iii. obtain for Customer the right to continue using such Software Services or Hardware Platforms. .If none of the foregoing is feasible, OKKAMI will accept a return of Software Services or Hardware Platforms which is subject to the injunction and refund to Customer the amount paid, including the license fee applicable thereto. THE FOREGOING SUBSECTIONS a. AND b. STATE THE ENTIRE LIABILITY AND OBLIGATION OF OKKAMI WITH RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT. c. Subject to the provisions of subsection d below, Customer will indemnify and hold OKKAMI, its Affiliates, and their officers, directors, employees harmless from and against all claims, causes of action, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) related to this Agreement and asserted by third parties which arise out of a claim that Software Services or Hardware Platforms infringe any patent, copyright or trade secret rights of a third party, if and to the extent such claim arises as a result of: i. the failure of Customer, its Affiliates or any of their employees or agents to comply with any written instructions provided by OKKAMI or its authorized designee; ii. breach of this Agreement by or negligence or willful misconduct of Customer, its Affiliates or any of their employees or agents; or iii. any modification of the equipment or combination of Software Services or Hardware Platforms with other products or processes not supplied by OKKAMI. The foregoing indemnification shall not apply in the event that such claim arises as a result of breach of this Agreement by or the negligence or willful misconduct of OKKAMI, its Affiliates or any of their employees or agents. d. If either party seeks indemnification from the other hereunder, it shall promptly give notice to the other party of any such claim or suit threatened, made or filed against it which forms the basis for such claim of indemnification and shall cooperate fully with the other party in the investigation and defense of all such claims or suits. The indemnifying party shall have the option to assume the other party’s defense. In any such claim or suit with counsel reasonably satisfactory to the other party. No settlement or compromise shall be binding on a party hereto without its prior written consent, such consent not to be unreasonably withheld.

INTELLECTUAL PROPERTY RIGHTS INDEMNIFICATION. a. Subject to the provisions of subsection d below, XXXXXX will indemnify and hold Customer, its AffiliatesAffiliates, and their officersofficers, directors, employees and distributors, customers and end users harmless from and against all claims, causes of action, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) asserted by third parties which arise out of a claim that Software SoGware Services or Hardware Platforms infringe any patent, copyright or trade secret rights of a third party. The foregoing indemnification indemnification shall not apply in the event that and to the extent such claim arises as a result of: i. the failure of Customer, its Affiliates Affiliates or any of their employees or agents to comply with any written instructions provided by XXXXXX; or ii. breach of this Agreement by or negligence or willful misconduct of Customer, its Affiliates Affiliates or any of their employees or agents; or iii. any modification modification of the products or combination of Software SoGware Services or Hardware Platforms with other products or processes not made by OKKAMI. b. If Customer’s use of Software SoGware Services or Hardware Platforms is enjoined, or if OKKAMI wishes to minimize its liability hereunder, OKKAMI may, at its option and expense, either: i. substitute substantially equivalent non-infringing service or platform for the infringing Software SoGware Services or Hardware Platforms; ii. modify the infringing Software SoGware Services or Hardware Platforms so that it no longer infringes but remains functionally equivalent; or iii. obtain for Customer the right to continue using such Software SoGware Services or Hardware Platforms. If none of the foregoing is feasible, OKKAMI will accept a return of Software SoGware Services or Hardware Platforms which is subject to the injunction and refund to Customer the amount paid, including the license fee applicable thereto. THE FOREGOING SUBSECTIONS a. AND b. STATE THE ENTIRE LIABILITY AND OBLIGATION OF OKKAMI WITH RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT. c. Subject to the provisions of subsection d below, Customer will indemnify and hold OKKAMI, its AffiliatesAffiliates, and their officersofficers, directors, employees harmless from and against all claims, causes of action, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) related to this Agreement and asserted by third parties which arise out of a claim that Software SoGware Services or Hardware Platforms infringe any patent, copyright or trade secret rights of a third party, if and to the extent such claim arises as a result of: i. the failure of Customer, its Affiliates Affiliates or any of their employees or agents to comply with any written instructions provided by OKKAMI or its authorized designee; ii. breach of this Agreement by or negligence or willful misconduct of Customer, its Affiliates Affiliates or any of their employees or agents; or iii. any modification modification of the equipment or combination of Software SoGware Services or Hardware Platforms with other products or processes not supplied by OKKAMI. The foregoing indemnification indemnification shall not apply in the event that such claim arises as a result of breach of this Agreement by or the negligence or willful misconduct of OKKAMI, its Affiliates Affiliates or any of their employees or agents. d. If either party seeks indemnification indemnification from the other hereunder, it shall promptly give notice to the other party of any such claim or suit threatened, made or filed filed against it which forms the basis for such claim of indemnification indemnification and shall cooperate fully with the other party in the investigation and defense of all such claims or suits. The indemnifying party shall have the option to assume the other party’s defense. In any such claim or suit with counsel reasonably satisfactory to the other party. No settlement or compromise shall be binding on a party hereto without its prior written consent, such consent not to be unreasonably withheld.