INTELLECTUAL PROPERTY RIGHTS INDEMNITY. 7.1 Frog shall indemnify the Customer against all costs and damages awarded under any final judgment by a court of competent jurisdiction (or which are agreed by Frog in settlement) in respect of any claim that the Customer’s possession or use of the Frog Software in accordance with this Agreement infringes the Intellectual Property Rights of any third party. 7.2 The indemnity set out in clause 7.1 is subject to: 7.2.1 the Customer giving Frog prompt notice, in writing, of the details of the claim; 7.2.2 Frog having sole conduct and control of any claim or action which is within the scope of the indemnity including any related settlement negotiations; 7.2.3 the Customer not making any statement prejudicial to Frog; and 7.2.4 the Customer giving Frog all reasonable help in connection with the claim or action (in which case, Frog shall pay the Customer’s proper and reasonable costs). 7.3 If any claim is made against Frog or the Customer that the Customer’s possession or use of the Frog Software infringes any third party’s Intellectual Property Rights, Frog will at its option and expense have the right to: 7.3.1 negotiate a licence for the Customer for the continued use of the Frog Software in accordance with the Agreement; 7.3.2 modify the Customer’s copy or copies of the Frog Software so as to perform in accordance with the current On-Line Documentation and Product Description in all material respects and to avoid the claim of infringement or any interlocutory injunction or court order in respect of the Frog Software; or 7.3.3 if none of the above are reasonably practicable, Frog may terminate the Agreement and refund to the Customer all Fees relating to the Frog Software paid by the Customer under this Agreement which for the avoidance of doubt excludes any Fees relating to the Equipment and the Services. 7.4 Frog’s obligations under this clause 7 shall not apply in the event that the claim or legal action results from: 7.4.1 use of an earlier release of the Software than Frog’s current release or the Customer’s failure to use updates and patches supplied by Frog; 7.4.2 use of the Software in combination with any other hardware, software except for the Equipment; 7.4.3 use of the Software other than in accordance with the Agreement; or 7.4.4 the Customer’s failure to procure rights which it ought to have procured for Frog or itself under this Agreement.
Appears in 3 contracts
Samples: Terms and Conditions, Terms and Conditions, Terms and Conditions
INTELLECTUAL PROPERTY RIGHTS INDEMNITY. 7.1 Frog 11.1 Subject to clause 11.4, the Supplier shall indemnify defend the Customer against all costs and damages awarded under any final judgment by a court of competent jurisdiction (or which are agreed by Frog in settlement) in respect of any third Party claim that the Customer’s use or possession or use of any of the Frog Software in accordance with Services or the Materials as authorised under this Agreement infringes the Intellectual Property Rights of a third Party (an "IPR Claim"), and indemnify and hold the Customer harmless from and against any third party.
7.2 The indemnity set out in clause 7.1 is subject todamages finally awarded by a court of competent jurisdiction or required to be paid under the terms of a settlement as a direct result of the IPR Claim, provided that:
7.2.1 11.1.1 the Customer giving Frog prompt notice, promptly notifies the Supplier in writing, writing on becoming aware of any reasonably likely or actual IPR Claim (such notice to include full details as to the nature and basis of the details IPR Claim);
11.1.2 the Customer makes no admission of liability, communication or payment to the third Party making the IPR Claim or agrees any settlement or compromise of the claimrelevant IPR Claim without the prior written consent of the Supplier;
7.2.2 Frog having 11.1.3 the Supplier is granted the sole control and conduct and control of any claim or action which is within the scope of the indemnity including defence of the IPR Claim and of any related settlement or negotiations;
7.2.3 the Customer not making any statement prejudicial to Frog; and
7.2.4 11.1.4 the Customer giving Frog Customer, at the Supplier’s request and expense, provides the Supplier with all reasonable help assistance, information and authority, and acts in accordance with the reasonable instructions of the Supplier, in the circumstances described in this clause 11.
11.2 The Supplier shall not have any liability or obligation under this clause 11 in respect of any IPR Claim to the extent that it results from or arises in connection with the claim or action (in which case, Frog shall pay with:
11.2.1 the Customer’s proper and reasonable costs).breach of this Agreement;
7.3 If any claim is made against Frog or 11.2.2 the Customer that the Customer’s possession or use of the Frog Software infringes Materials or the Services (or any third party’s Intellectual Property Rights, Frog will at its option and expense have part of them) by anyone other than the right to:Customer
7.3.1 negotiate a licence for 11.2.3 the Customer for the continued possession or use of the Frog Software in accordance with Materials or the Agreement;
7.3.2 modify the Customer’s copy or copies of the Frog Software so as to perform in accordance with the current On-Line Documentation and Product Description in all material respects and to avoid the claim of infringement Services (or any interlocutory injunction or court order in respect part of the Frog Software; or
7.3.3 if none of the above are reasonably practicable, Frog may terminate the Agreement and refund to the Customer all Fees relating to the Frog Software paid by the Customer under this Agreement which for the avoidance of doubt excludes any Fees relating to the Equipment and the Services.
7.4 Frog’s obligations under this clause 7 shall not apply in the event that the claim or legal action results from:
7.4.1 use of an earlier release of the Software than Frog’s current release or the Customer’s failure to use updates and patches supplied by Frog;
7.4.2 use of the Software in combination with any other hardware, software except for the Equipment;
7.4.3 use of the Software them) other than in accordance with the Agreementterms of this Agreement or the terms of any Supplier documents or materials provided by the Supplier to the Customer;
11.2.4 a specific design, feature or modification provided by the Supplier at the Customer’s request;
11.2.5 any failure by the Customer to implement changes, replacements or new releases recommended by the Supplier where the infringement would have been avoided or mitigated by such changes, replacements or new releases;
11.2.6 the combination or use in combination of the Materials or the Services with any other products, services or items not supplied by the Supplier;
11.2.7 the modification of the Materials or the Services by anyone other than the Supplier or a third Party authorised by the Supplier;
11.2.8 any third-Party components or elements of the Materials or the Services licensed on an open source basis;
11.2.9 any failure by the Customer to obtain any required or relevant licence or pay any required or relevant participation charges;
11.2.10 the possession or use of any Materials or the Services (or any part thereof) by the Customer which is made available on a beta, test or evaluation basis; or
7.4.4 11.2.11 the Customer’s failure wilful misconduct or negligence.
11.3 The Customer shall afford the Supplier (at the Supplier’s cost and expense) an opportunity to procure rights which it ought participate in the defence of, and shall not without the prior written consent of the Supplier settle or otherwise dispose of, any:
11.3.1 IPR Claim where the Supplier does not elect or is unable (for whatever reason) to have procured for Frog or itself assume control of the defence of the claim.
11.4 Subject always to clause 8.4, the Supplier’s entire liability under this Agreementclause 11 in respect of all losses, costs, interest and expenses (including legal costs) incurred by the Customer in respect of any IPR Claim shall in no event exceed £5,000,000 (five million pounds sterling).
11.5 If any IPR Claim is made or is reasonably likely to be made against the Customer, the Supplier may at its sole option and expense, and the Customer shall permit the Supplier to:
11.5.1 procure for the Customer the right to continue using and possessing the relevant Services or the Materials (or any part thereof);
11.5.2 modify or replace the infringing part of the Services or the Materials (or any part thereof) to avoid the infringement or alleged infringement; or
11.5.3 where neither clause 11.5.1 nor clause 11.5.2 is reasonably practicable, on written notice terminate this Agreement or the Customer’s licence and access to those parts of the Service or the Materials which are the subject of the IPR Claim concerned and refund any prepaid unused Charges paid by the Customer as at the date of the termination in respect of the affected Services or Materials.
11.6 In the event of termination pursuant to clause 11.5.3, at the Supplier’s request the Customer shall destroy and delete and certify in writing that it has destroyed or deleted all copies of the Services or Materials.
11.7 The remedies in this clause11 are the Customer’s sole and exclusive remedies and the Supplier’s sole liabilities in respect of any actual, alleged or reasonably likely IPR Claim.
11.8 Nothing in this Agreement shall restrict or limit the Customer’s general obligation at law to mitigate a loss it may suffer or incur as a result of any event that may give rise to a claim under this clause 11. At the Supplier’s request, the Customer shall demonstrate in writing to the Supplier that it has used its best endeavours to so mitigate.
11.9 The Customer warrants that any specification, design or instruction given by it to the Supplier will not infringe any Intellectual Property Rights or other rights of any third Party and the Customer indemnifies the Supplier in respect of any damages, losses, costs, expenses or claims arising in relation thereto in which case the provisions of this clause 11 shall apply mutatis mutandis. Subject always to clause 8.4, the Customer's entire liability under this clause 11 in respect of all losses, costs, interest and expenses (including legal costs) incurred by the Supplier in respect of any IPR Claim shall in no event exceed £5,000,000 (five million pounds sterling).
Appears in 2 contracts
Samples: It Services Agreement, It Services Agreement
INTELLECTUAL PROPERTY RIGHTS INDEMNITY. 7.1 6.1 Frog shall indemnify the Customer against all costs and damages awarded under any final judgment by a court of competent jurisdiction (or which are agreed by Frog in settlement) in respect of any claim that the Customer’s possession or use of the Frog Software in accordance with this Agreement infringes the Intellectual Property Rights of any third party.
7.2 6.2 The indemnity set out in clause 7.1 6.1 is subject to:
7.2.1 6.2.1 the Customer giving Frog prompt notice, in writing, of the details of the any claim;
7.2.2 6.2.2 Frog having sole conduct and control of any claim or action which is within the scope of the indemnity including any related settlement negotiations;
7.2.3 6.2.3 the Customer not making any statement prejudicial to Frog; and
7.2.4 6.2.4 the Customer giving Frog all reasonable help in connection with the claim or action (in which case, Frog shall may pay the Customer’s costs, which must be proper and reasonable costsreasonable).
7.3 6.3 If any claim is made against Frog or the Customer that the Customer’s possession or use of the Frog Software infringes any third party’s Intellectual Property Rights, Frog will shall at its option and expense have the right to:
7.3.1 6.3.1 negotiate a licence for the Customer for the continued use of the Frog Software in accordance with the Agreement;
7.3.2 6.3.2 modify the Customer’s copy or copies of the Frog Software so as to perform in accordance with the current On-Line Documentation and agreed Product Description in all material respects and to avoid the claim of infringement or any interlocutory injunction or court order in respect of the Frog Software; or
7.3.3 6.3.3 if none of the above are reasonably practicable, Frog may terminate the Agreement and refund to the Customer all Fees relating to the Frog Software paid by the Customer under this Agreement which for Agreement. This does not affect the avoidance of doubt excludes any Fees relating to the Equipment and the Services.indemnity described in clause 6.1
7.4 6.4 Frog’s obligations under this clause 7 6 shall not apply in the event that the claim or legal action results from:
7.4.1 6.4.1 use of an earlier a penultimate release of the Software than Frog’s current release or the Customer’s failure to use updates and patches supplied by Frogrelease;
7.4.2 use of the Software in combination with any other hardware, software except for the Equipment;
7.4.3 6.4.2 use of the Software other than in accordance with the Agreement; or
7.4.4 the Customer’s failure to procure rights which it ought to have procured for Frog or itself under this Agreement.
Appears in 2 contracts
Samples: Terms and Conditions, Terms and Conditions
INTELLECTUAL PROPERTY RIGHTS INDEMNITY. 7.1 Frog 12.1 Subject to clause 12.4, the Supplier shall indemnify defend the Customer Reseller against all costs and damages awarded under any final judgment by a court of competent jurisdiction (or which are agreed by Frog in settlement) in respect of any third Party claim that the CustomerReseller’s use or possession or use of any of the Frog Software in accordance with Services or the Materials as authorised under this Agreement infringes the Intellectual Property Rights of a third Party (an "IPR Claim"), and indemnify and hold the Reseller harmless from and against any third party.
7.2 The indemnity set out in clause 7.1 is subject todamages finally awarded by a court of competent jurisdiction or required to be paid under the terms of a settlement as a direct result of the IPR Claim, provided that:
7.2.1 12.1.1 the Customer giving Frog prompt notice, Reseller promptly notifies the Supplier in writing, writing on becoming aware of any reasonably likely or actual IPR Claim (such notice to include full details as to the nature and basis of the details IPR Claim);
12.1.2 the Reseller makes no admission of liability, communication or payment to the third Party making the IPR Claim or agrees any settlement or compromise of the claimrelevant IPR Claim without the prior written consent of the Supplier;
7.2.2 Frog having 12.1.3 the Supplier is granted the sole control and conduct and control of any claim or action which is within the scope of the indemnity including defence of the IPR Claim and of any related settlement or negotiations;
7.2.3 the Customer not making any statement prejudicial to Frog; and
7.2.4 12.1.4 the Customer giving Frog Reseller, at the Supplier’s request and expense, provides the Supplier with all reasonable help assistance, information and authority, and acts in accordance with the reasonable instructions of the Supplier, in the circumstances described in this clause 12.
12.2 The Supplier shall not have any liability or obligation under this clause 12 in respect of any IPR Claim to the extent that it results from or arises in connection with with:
12.2.1 the claim or action (in which case, Frog shall pay Reseller’s breach of this Agreement;
12.2.2 the Customer’s proper and reasonable costs).
7.3 If any claim is made against Frog or the Customer that the Customer’s possession or use of the Frog Software infringes Materials or the Services (or any third party’s Intellectual Property Rights, Frog will at its option and expense have part of them) by anyone other than the right to:Reseller
7.3.1 negotiate a licence for 12.2.3 the Customer for the continued possession or use of the Frog Software in accordance with Materials or the Agreement;
7.3.2 modify the Customer’s copy or copies of the Frog Software so as to perform in accordance with the current On-Line Documentation and Product Description in all material respects and to avoid the claim of infringement Services (or any interlocutory injunction or court order in respect part of the Frog Software; or
7.3.3 if none of the above are reasonably practicable, Frog may terminate the Agreement and refund to the Customer all Fees relating to the Frog Software paid by the Customer under this Agreement which for the avoidance of doubt excludes any Fees relating to the Equipment and the Services.
7.4 Frog’s obligations under this clause 7 shall not apply in the event that the claim or legal action results from:
7.4.1 use of an earlier release of the Software than Frog’s current release or the Customer’s failure to use updates and patches supplied by Frog;
7.4.2 use of the Software in combination with any other hardware, software except for the Equipment;
7.4.3 use of the Software them) other than in accordance with the Agreementterms of this Agreement or the terms of any Supplier documents or materials provided by the Supplier to the Reseller;
12.2.4 a specific design, feature or modification provided by the Supplier at the Reseller’s request;
12.2.5 any failure by the Reseller to implement changes, replacements or new releases recommended by the Supplier where the infringement would have been avoided or mitigated by such changes, replacements or new releases;
12.2.6 the combination or use in combination of the Materials or the Services with any other products, services or items not supplied by the Supplier;
12.2.7 the modification of the Materials or the Services by anyone other than the Supplier or a third Party authorised by the Supplier;
12.2.8 any third-Party components or elements of the Materials or the Services licensed on an open source basis;
12.2.9 any failure by the Reseller to obtain any required or relevant licence or pay any required or relevant participation charges;
12.2.10 the possession or use of any Materials or the Services (or any part thereof) by the Reseller which is made available on a beta, test or evaluation basis; or
7.4.4 12.2.11 the CustomerReseller’s failure wilful misconduct or negligence.
12.3 The Reseller shall afford the Supplier (at the Supplier’s cost and expense) an opportunity to procure rights participate in the defence of, and shall not without the prior written consent of the Supplier settle or otherwise dispose of, any:
12.3.1 IPR Claim where the Supplier does not elect or is unable (for whatever reason) to assume control of the defence of the claim; or
12.3.2 claim brought by a third Party in connection with this Agreement for breach of its Intellectual Property Rights, which it ought to have procured for Frog or itself is not covered by the indemnity in this clause 12.
12.4 The Supplier’s entire liability under this Agreementclause 12 in respect of all losses, costs, interest and expenses (including legal costs) incurred by the Reseller in respect of any IPR Claim shall in no event exceed £5,000,000 (five million pounds sterling).
12.5 If any IPR Claim is made or is reasonably likely to be made against the Reseller, the Supplier may at its sole option and expense, and the Reseller shall permit the Supplier to:
12.5.1 procure for the Reseller the right to continue using and possessing the relevant Services or the Materials (or any part thereof);
12.5.2 modify or replace the infringing part of the Services or the Materials (or any part thereof) to avoid the infringement or alleged infringement; or
12.5.3 where neither clause 12.5.1 nor clause 12.5.2 is reasonably practicable, on written notice terminate this Agreement or the Reseller’s licence and access to those parts of the Service or the Materials which are the subject of the IPR Claim concerned and refund any prepaid unused Charges paid by the Reseller as at the date of the termination in respect of the affected Services or Materials.
12.6 In the event of termination pursuant to clause 12.5.3, at the Supplier’s request the Reseller shall destroy and delete and certify in writing that it has destroyed or deleted all copies of the Services or Materials.
12.7 The remedies in this clause 12 are the Reseller’s sole and exclusive remedies and the Supplier’s sole liabilities in respect of any actual, alleged or reasonably likely IPR Claim.
12.8 Nothing in this Agreement shall restrict or limit the Reseller’s general obligation at law to mitigate a loss it may suffer or incur as a result of any event that may give rise to a claim under this clause 12. At the Supplier’s request, the Reseller shall demonstrate in writing to the Supplier that it has used its best endeavours to so mitigate.
12.9 The Reseller warrants that any specification, design or instruction given by it to the Supplier will not infringe any Intellectual Property Rights or other rights of any third Party and the Reseller indemnifies the Supplier in respect of any damages, losses, costs, expenses or claims arising in relation thereto in which case the provisions of this clause 12 shall apply mutatis mutandis.
Appears in 2 contracts
Samples: Reseller Agreement, Reseller Agreement
INTELLECTUAL PROPERTY RIGHTS INDEMNITY. 7.1 Frog 11.1 Subject to clause 11.4, the Supplier shall indemnify defend the Customer against all costs and damages awarded under any final judgment by a court of competent jurisdiction (or which are agreed by Frog in settlement) in respect of any third Party claim that the Customer’s use or possession or use of any of the Frog Software in accordance with Services or the Materials as authorised under this Agreement infringes the Intellectual Property Rights of a third Party (an "IPR Claim"), and indemnify and hold the Customer harmless from and against any third party.
7.2 The indemnity set out in clause 7.1 is subject todamages finally awarded by a court of competent jurisdiction or required to be paid under the terms of a settlement as a direct result of the IPR Claim, provided that:
7.2.1 11.1.1 the Customer giving Frog prompt notice, promptly notifies the Supplier in writing, writing on becoming aware of any reasonably likely or actual IPR Claim (such notice to include full details as to the nature and basis of the details IPR Claim);
11.1.2 the Customer makes no admission of liability, communication or payment to the third Party making the IPR Claim or agrees any settlement or compromise of the claimrelevant IPR Claim without the prior written consent of the Supplier;
7.2.2 Frog having 11.1.3 the Supplier is granted the sole control and conduct and control of any claim or action which is within the scope of the indemnity including defence of the IPR Claim and of any related settlement or negotiations;
7.2.3 the Customer not making any statement prejudicial to Frog; and
7.2.4 11.1.4 the Customer giving Frog Customer, at the Supplier’s request and expense, provides the Supplier with all reasonable help assistance, information and authority, and acts in accordance with the reasonable instructions of the Supplier, in the circumstances described in this clause 11.
11.2 The Supplier shall not have any liability or obligation under this clause 11 in respect of any IPR Claim to the extent that it results from or arises in connection with the claim or action (in which case, Frog shall pay with:
11.2.1 the Customer’s proper and reasonable costs).breach of this Agreement;
7.3 If any claim is made against Frog or 11.2.2 the Customer that the Customer’s possession or use of the Frog Software infringes Materials or the Services (or any third party’s Intellectual Property Rights, Frog will at its option and expense have part of them) by anyone other than the right to:Customer
7.3.1 negotiate a licence for 11.2.3 the Customer for the continued possession or use of the Frog Software in accordance with Materials or the Agreement;
7.3.2 modify the Customer’s copy or copies of the Frog Software so as to perform in accordance with the current On-Line Documentation and Product Description in all material respects and to avoid the claim of infringement Services (or any interlocutory injunction or court order in respect part of the Frog Software; or
7.3.3 if none of the above are reasonably practicable, Frog may terminate the Agreement and refund to the Customer all Fees relating to the Frog Software paid by the Customer under this Agreement which for the avoidance of doubt excludes any Fees relating to the Equipment and the Services.
7.4 Frog’s obligations under this clause 7 shall not apply in the event that the claim or legal action results from:
7.4.1 use of an earlier release of the Software than Frog’s current release or the Customer’s failure to use updates and patches supplied by Frog;
7.4.2 use of the Software in combination with any other hardware, software except for the Equipment;
7.4.3 use of the Software them) other than in accordance with the Agreementterms of this Agreement or the terms of any Supplier documents or materials provided by the Supplier to the Customer;
11.2.4 a specific design, feature or modification provided by the Supplier at the Customer’s request;
11.2.5 any failure by the Customer to implement changes, replacements or new releases recommended by the Supplier where the infringement would have been avoided or mitigated by such changes, replacements or new releases;
11.2.6 the combination or use in combination of the Materials or the Services with any other products, services or items not supplied by the Supplier;
11.2.7 the modification of the Materials or the Services by anyone other than the Supplier or a third Party authorised by the Supplier;
11.2.8 any third-Party components or elements of the Materials or the Services licensed on an open source basis;
11.2.9 any failure by the Customer to obtain any required or relevant licence or pay any required or relevant participation charges;
11.2.10 the possession or use of any Materials or the Services (or any part thereof) by the Customer which is made available on a beta, test or evaluation basis; or
7.4.4 11.2.11 the Customer’s failure wilful misconduct or negligence.
11.3 The Customer shall afford the Supplier (at the Supplier’s cost and expense) an opportunity to procure rights participate in the defence of, and shall not without the prior written consent of the Supplier settle or otherwise dispose of, any:
11.3.1 IPR Claim where the Supplier does not elect or is unable (for whatever reason) to assume control of the defence of the claim; or
11.3.2 claim brought by a third Party in connection with this Agreement for breach of its Intellectual Property Rights, which it ought is not covered by the indemnity in this clause 11.
11.4 Subject always to have procured for Frog or itself clause 8.4, the Supplier’s entire liability under this Agreementclause 11 in respect of all losses, costs, interest and expenses (including legal costs) incurred by the Customer in respect of any IPR Claim shall in no event exceed £5,000,000 (five million pounds sterling).
11.5 If any IPR Claim is made or is reasonably likely to be made against the Customer, the Supplier may at its sole option and expense, and the Customer shall permit the Supplier to:
11.5.1 procure for the Customer the right to continue using and possessing the relevant Services or the Materials (or any part thereof);
11.5.2 modify or replace the infringing part of the Services or the Materials (or any part thereof) to avoid the infringement or alleged infringement; or
11.5.3 where neither clause 11.5.1 nor clause 11.5.2 is reasonably practicable, on written notice terminate this Agreement or the Customer’s licence and access to those parts of the Service or the Materials which are the subject of the IPR Claim concerned and refund any prepaid unused Charges paid by the Customer as at the date of the termination in respect of the affected Services or Materials.
11.6 In the event of termination pursuant to clause 11.5.3, at the Supplier’s request the Customer shall destroy and delete and certify in writing that it has destroyed or deleted all copies of the Services or Materials.
11.7 The remedies in this clause11 are the Customer’s sole and exclusive remedies and the Supplier’s sole liabilities in respect of any actual, alleged or reasonably likely IPR Claim.
11.8 Nothing in this Agreement shall restrict or limit the Customer’s general obligation at law to mitigate a loss it may suffer or incur as a result of any event that may give rise to a claim under this clause 11. At the Supplier’s request, the Customer shall demonstrate in writing to the Supplier that it has used its best endeavours to so mitigate.
11.9 The Customer warrants that any specification, design or instruction given by it to the Supplier will not infringe any Intellectual Property Rights or other rights of any third Party and the Customer indemnifies the Supplier in respect of any damages, losses, costs, expenses or claims arising in relation thereto in which case the provisions of this clause 11 shall apply mutatis mutandis. Subject always to clause 8.4, the Customer's entire liability under this clause 11 in respect of all losses, costs, interest and expenses (including legal costs) incurred by the Supplier in respect of any IPR Claim shall in no event exceed £5,000,000 (five million pounds sterling).
Appears in 2 contracts
Samples: It Services Agreement, It Services Agreement
INTELLECTUAL PROPERTY RIGHTS INDEMNITY. 7.1 Frog 12.1 Subject to clause 12.4, the Supplier shall indemnify defend the Customer Reseller against all costs and damages awarded under any final judgment by a court of competent jurisdiction (or which are agreed by Frog in settlement) in respect of any third Party claim that the CustomerReseller’s use or possession or use of any of the Frog Software in accordance with Services or the Materials as authorised under this Agreement infringes the Intellectual Property Rights of a third Party (an "IPR Claim"), and indemnify and hold the Reseller harmless from and against any third party.
7.2 The indemnity set out in clause 7.1 is subject todamages finally awarded by a court of competent jurisdiction or required to be paid under the terms of a settlement as a direct result of the IPR Claim, provided that:
7.2.1 12.1.1 the Customer giving Frog prompt notice, Reseller promptly notifies the Supplier in writing, writing on becoming aware of any reasonably likely or actual IPR Claim (such notice to include full details as to the nature and basis of the details IPR Claim);
12.1.2 the Reseller makes no admission of liability, communication or payment to the third Party making the IPR Claim or agrees any settlement or compromise of the claimrelevant IPR Claim without the prior written consent of the Supplier;
7.2.2 Frog having 12.1.3 the Supplier is granted the sole control and conduct and control of any claim or action which is within the scope of the indemnity including defence of the IPR Claim and of any related settlement or negotiations;
7.2.3 the Customer not making any statement prejudicial to Frog; and
7.2.4 12.1.4 the Customer giving Frog Reseller, at the Supplier’s request and expense, provides the Supplier with all reasonable help assistance, information and authority, and acts in accordance with the reasonable instructions of the Supplier, in the circumstances described in this clause 12.
12.2 The Supplier shall not have any liability or obligation under this clause 12 in respect of any IPR Claim to the extent that it results from or arises in connection with with:
12.2.1 the claim or action (in which case, Frog shall pay Reseller’s breach of this Agreement;
12.2.2 the Customer’s proper and reasonable costs).
7.3 If any claim is made against Frog or the Customer that the Customer’s possession or use of the Frog Software infringes Materials or the Services (or any third party’s Intellectual Property Rights, Frog will at its option and expense have part of them) by anyone other than the right to:Reseller
7.3.1 negotiate a licence for 12.2.3 the Customer for the continued possession or use of the Frog Software in accordance with Materials or the Agreement;
7.3.2 modify the Customer’s copy or copies of the Frog Software so as to perform in accordance with the current On-Line Documentation and Product Description in all material respects and to avoid the claim of infringement Services (or any interlocutory injunction or court order in respect part of the Frog Software; or
7.3.3 if none of the above are reasonably practicable, Frog may terminate the Agreement and refund to the Customer all Fees relating to the Frog Software paid by the Customer under this Agreement which for the avoidance of doubt excludes any Fees relating to the Equipment and the Services.
7.4 Frog’s obligations under this clause 7 shall not apply in the event that the claim or legal action results from:
7.4.1 use of an earlier release of the Software than Frog’s current release or the Customer’s failure to use updates and patches supplied by Frog;
7.4.2 use of the Software in combination with any other hardware, software except for the Equipment;
7.4.3 use of the Software them) other than in accordance with the Agreementterms of this Agreement or the terms of any Supplier documents or materials provided by the Supplier to the Reseller;
12.2.4 a specific design, feature or modification provided by the Supplier at the Reseller’s request;
12.2.5 any failure by the Reseller to implement changes, replacements or new releases recommended by the Supplier where the infringement would have been avoided or mitigated by such changes, replacements or new releases;
12.2.6 the combination or use in combination of the Materials or the Services with any other products, services or items not supplied by the Supplier;
12.2.7 the modification of the Materials or the Services by anyone other than the Supplier or a third Party authorised by the Supplier;
12.2.8 any third-Party components or elements of the Materials or the Services licensed on an open source basis;
12.2.9 any failure by the Reseller to obtain any required or relevant licence or pay any required or relevant participation charges;
12.2.10 the possession or use of any Materials or the Services (or any part thereof) by the Reseller which is made available on a beta, test or evaluation basis; or
7.4.4 12.2.11 the CustomerReseller’s failure wilful misconduct or negligence.
12.3 The Reseller shall afford the Supplier (at the Supplier’s cost and expense) an opportunity to procure rights which it ought participate in the defence of, and shall not without the prior written consent of the Supplier settle or otherwise dispose of, any:
12.3.1 IPR Claim where the Supplier does not elect or is unable (for whatever reason) to have procured for Frog or itself assume control of the defence of the claim.
12.4 The Supplier’s entire liability under this Agreementclause 12 in respect of all losses, costs, interest and expenses (including legal costs) incurred by the Reseller in respect of any IPR Claim shall in no event exceed £5,000,000 (five million pounds sterling).
12.5 If any IPR Claim is made or is reasonably likely to be made against the Reseller, the Supplier may at its sole option and expense, and the Reseller shall permit the Supplier to:
12.5.1 procure for the Reseller the right to continue using and possessing the relevant Services or the Materials (or any part thereof);
12.5.2 modify or replace the infringing part of the Services or the Materials (or any part thereof) to avoid the infringement or alleged infringement; or
12.5.3 where neither clause 12.5.1 nor clause 12.5.2 is reasonably practicable, on written notice terminate this Agreement or the Reseller’s licence and access to those parts of the Service or the Materials which are the subject of the IPR Claim concerned and refund any prepaid unused Charges paid by the Reseller as at the date of the termination in respect of the affected Services or Materials.
12.6 In the event of termination pursuant to clause 12.5.3, at the Supplier’s request the Reseller shall destroy and delete and certify in writing that it has destroyed or deleted all copies of the Services or Materials.
12.7 The remedies in this clause 12 are the Reseller’s sole and exclusive remedies and the Supplier’s sole liabilities in respect of any actual, alleged or reasonably likely IPR Claim.
12.8 Nothing in this Agreement shall restrict or limit the Reseller’s general obligation at law to mitigate a loss it may suffer or incur as a result of any event that may give rise to a claim under this clause 12. At the Supplier’s request, the Reseller shall demonstrate in writing to the Supplier that it has used its best endeavours to so mitigate.
12.9 The Reseller warrants that any specification, design or instruction given by it to the Supplier will not infringe any Intellectual Property Rights or other rights of any third Party and the Reseller indemnifies the Supplier in respect of any damages, losses, costs, expenses or claims arising in relation thereto in which case the provisions of this clause 12 shall apply mutatis mutandis.
Appears in 2 contracts
Samples: Reseller Agreement, Reseller Agreement
INTELLECTUAL PROPERTY RIGHTS INDEMNITY. 7.1 Frog 11.1 Subject to clause 11.4, the Supplier shall indemnify defend the Customer against all costs and damages awarded under any final judgment by a court of competent jurisdiction (or which are agreed by Frog in settlement) in respect of any third Party claim that the Customer’s use or possession or use of any of the Frog Software in accordance with Services or the Materials as authorised under this Agreement infringes the Intellectual Property Rights of a third Party (an "IPR Claim"), and indemnify and hold the Customer harmless from and against any third party.
7.2 The indemnity set out in clause 7.1 is subject todamages finally awarded by a court of competent jurisdiction or required to be paid under the terms of a settlement as a direct result of the IPR Claim, provided that:
7.2.1 11.1.1 the Customer giving Frog prompt notice, promptly notifies the Supplier in writing, writing on becoming aware of any reasonably likely or actual IPR Claim (such notice to include full details as to the nature and basis of the details IPR Claim);
11.1.2 the Customer makes no admission of liability, communication or payment to the third Party making the IPR Claim or agrees any settlement or compromise of the claimrelevant IPR Claim without the prior written consent of the Supplier;
7.2.2 Frog having 11.1.3 the Supplier is granted the sole control and conduct and control of any claim or action which is within the scope of the indemnity including defence of the IPR Claim and of any related settlement or negotiations;
7.2.3 the Customer not making any statement prejudicial to Frog; and
7.2.4 11.1.4 the Customer giving Frog Customer, at the Supplier’s request and expense, provides the Supplier with all reasonable help assistance, information and authority, and acts in accordance with the reasonable instructions of the Supplier, in the circumstances described in this clause 11.
11.2 The Supplier shall not have any liability or obligation under this clause 11 in respect of any IPR Claim to the extent that it results from or arises in connection with the claim or action (in which case, Frog shall pay with:
11.2.1 the Customer’s proper and reasonable costs).breach of this Agreement;
7.3 If any claim is made against Frog or 11.2.2 the Customer that the Customer’s possession or use of the Frog Software infringes Materials or the Services (or any third party’s Intellectual Property Rights, Frog will at its option and expense have part of them) by anyone other than the right to:Customer
7.3.1 negotiate a licence for 11.2.3 the Customer for the continued possession or use of the Frog Software in accordance with Materials or the Agreement;
7.3.2 modify the Customer’s copy or copies of the Frog Software so as to perform in accordance with the current On-Line Documentation and Product Description in all material respects and to avoid the claim of infringement Services (or any interlocutory injunction or court order in respect part of the Frog Software; or
7.3.3 if none of the above are reasonably practicable, Frog may terminate the Agreement and refund to the Customer all Fees relating to the Frog Software paid by the Customer under this Agreement which for the avoidance of doubt excludes any Fees relating to the Equipment and the Services.
7.4 Frog’s obligations under this clause 7 shall not apply in the event that the claim or legal action results from:
7.4.1 use of an earlier release of the Software than Frog’s current release or the Customer’s failure to use updates and patches supplied by Frog;
7.4.2 use of the Software in combination with any other hardware, software except for the Equipment;
7.4.3 use of the Software them) other than in accordance with the Agreementterms of this Agreement or the terms of any Supplier documents or materials provided by the Supplier to the Customer;
11.2.4 a specific design, feature or modification provided by the Supplier at the Customer’s request;
11.2.5 any failure by the Customer to implement changes, replacements or new releases recommended by the Supplier where the infringement would have been avoided or mitigated by such changes, replacements or new releases;
11.2.6 the combination or use in combination of the Materials or the Services with any other products, services or items not supplied by the Supplier;
11.2.7 the modification of the Materials or the Services by anyone other than the Supplier or a third Party authorised by the Supplier;
11.2.8 any third-Party components or elements of the Materials or the Services licensed on an open source basis;
11.2.9 any failure by the Customer to obtain any required or relevant licence or pay any required or relevant participation charges;
11.2.10 the possession or use of any Materials or the Services (or any part thereof) by the Customer which is made available on a beta, test or evaluation basis; or
7.4.4 11.2.11 the Customer’s failure wilful misconduct or negligence. Service Provider Agreement
11.3 The Customer shall afford the Supplier (at the Supplier’s cost and expense) an opportunity to procure rights participate in the defence of, and shall not without the prior written consent of the Supplier settle or otherwise dispose of, any:
11.3.1 IPR Claim where the Supplier does not elect or is unable (for whatever reason) to assume control of the defence of the claim; or
11.3.2 claim brought by a third Party in connection with this Agreement for breach of its Intellectual Property Rights, which it ought is not covered by the indemnity in this clause 11.
11.4 Subject always to have procured for Frog or itself clause 8.5, the Supplier’s entire liability under this Agreementclause 11 in respect of all losses, costs, interest and expenses (including legal costs) incurred by the Customer in respect of any IPR Claim shall in no event exceed £5,000,000 (five million pounds sterling).
11.5 If any IPR Claim is made or is reasonably likely to be made against the Customer, the Supplier may at its sole option and expense, and the Customer shall permit the Supplier to:
11.5.1 procure for the Customer the right to continue using and possessing the relevant Services or the Materials (or any part thereof);
11.5.2 modify or replace the infringing part of the Services or the Materials (or any part thereof) to avoid the infringement or alleged infringement; or
11.5.3 where neither clause 11.5.1 nor clause 11.5.2 is reasonably practicable, on written notice terminate this Agreement or the Customer’s licence and access to those parts of the Service or the Materials which are the subject of the IPR Claim concerned and refund any prepaid unused Charges paid by the Customer as at the date of the termination in respect of the affected Services or Materials.
11.6 In the event of termination pursuant to clause 11.5.3, at the Supplier’s request the Customer shall destroy and delete and certify in writing that it has destroyed or deleted all copies of the Services or Materials.
11.7 The remedies in this clause11 are the Customer’s sole and exclusive remedies and the Supplier’s sole liabilities in respect of any actual, alleged or reasonably likely IPR Claim.
11.8 Nothing in this Agreement shall restrict or limit the Customer’s general obligation at law to mitigate a loss it may suffer or incur as a result of any event that may give rise to a claim under this clause 11. At the Supplier’s request, the Customer shall demonstrate in writing to the Supplier that it has used its best endeavours to so mitigate.
11.9 The Customer warrants that any specification, design or instruction given by it to the Supplier will not infringe any Intellectual Property Rights or other rights of any third Party and the Customer indemnifies the Supplier in respect of any damages, losses, costs, expenses or claims arising in relation thereto in which case the provisions of this clause 11 shall apply mutatis mutandis. Subject always to clause 8.5, the Customer's entire liability under this clause 11 in respect of all losses, costs, interest and expenses (including legal costs) incurred by the Supplier in respect of any IPR Claim shall in no event exceed £5,000,000 (five million pounds sterling).
Appears in 1 contract
Samples: Service Provider Agreement
INTELLECTUAL PROPERTY RIGHTS INDEMNITY. 7.1 6.1 Frog shall indemnify the Customer against all costs and damages awarded under any final judgment by a court of competent jurisdiction (or which are agreed by Frog in settlement) in respect of any claim that the Customer’s possession or use of the Frog Software in accordance with this Agreement infringes the Intellectual Property Rights of any third party.
7.2 6.2 The indemnity set out in clause 7.1 6.1 is subject to:
7.2.1 6.2.1 the Customer giving Frog prompt notice, in writing, of the details of the any claim;
7.2.2 6.2.2 Frog having sole conduct and control of any claim or action which is within the scope of the indemnity including any related settlement negotiations;
7.2.3 6.2.3 the Customer not making any statement prejudicial to Frog; and
7.2.4 6.2.4 the Customer giving Frog all reasonable help in connection with the claim or action (in which case, Frog shall may pay the Customer’s proper and reasonable costs).
7.3 6.3 If any claim is made against Frog or the Customer that the Customer’s possession or use of the Frog Software infringes any third party’s Intellectual Property Rights, Frog will shall at its option and expense have the right to:
7.3.1 6.3.1 negotiate a licence for the Customer for the continued use of the Frog Software in accordance with the Agreement;
7.3.2 6.3.2 modify the Customer’s copy or copies of the Frog Software so as to perform in accordance with the current On-Line Documentation and agreed Product Description in all material respects and to avoid the claim of infringement or any interlocutory injunction or court order in respect of the Frog Software; or
7.3.3 6.3.3 if none of the above are reasonably practicable, Frog may terminate the Agreement and refund to the Customer all Fees relating to the Frog Software paid by the Customer under this Agreement which for the avoidance of doubt excludes any Fees relating to the Equipment and the ServicesAgreement.
7.4 6.4 Frog’s obligations under this clause 7 6 shall not apply in the event that the claim or legal action results from:
7.4.1 6.4.1 use of an earlier a penultimate release of the Software than Frog’s current release or the Customer’s failure to use updates and patches supplied by Frogrelease;
7.4.2 6.4.2 use of the Software in combination with any other hardware, software except for the Equipmenthardware that is not suitable;
7.4.3 6.4.3 use of the Software other than in accordance with the Agreement; or
7.4.4 6.4.4 the Customer’s failure to procure rights which it ought to have procured for Frog or itself under this Agreement.
Appears in 1 contract
Samples: Software and Services Agreement
INTELLECTUAL PROPERTY RIGHTS INDEMNITY. 7.1 Frog shall indemnify the Customer against all costs and damages awarded under any final judgment by a court of competent jurisdiction (or which are agreed by Frog in settlement) in respect of any claim that the Customer’s possession or use of the Frog Software in accordance with this Agreement infringes the Intellectual Property Rights of any third party.
7.2 The indemnity set out in clause 7.1 is subject to:
7.2.1 the Customer giving Frog prompt notice, in writing, of the details of the any claim;
7.2.2 Frog having sole conduct and control of any claim or action which is within the scope of the indemnity including any related settlement negotiations;
7.2.3 the Customer not making any statement prejudicial to Frog; and
7.2.4 the Customer giving Frog all reasonable help in connection with the claim or action (in which case, Frog shall may pay the Customer’s proper and reasonable costs).
7.3 If any claim is made against Frog or the Customer that the Customer’s possession or use of the Frog Software infringes any third party’s Intellectual Property Rights, Frog will shall at its option and expense have the right to:
7.3.1 negotiate a licence for the Customer for the continued use of the Frog Software in accordance with the Agreement;
7.3.2 modify the Customer’s copy or copies of the Frog Software so as to perform in accordance with the current On-Line Documentation and Product Description in all material respects and to avoid the claim of infringement or any interlocutory injunction or court order in respect of the Frog Software; or
7.3.3 if none of the above are reasonably practicable, Frog may terminate the Agreement and refund to the Customer all Fees relating to the Frog Software paid by the Customer under this Agreement which for the avoidance of doubt excludes any Fees relating to the Equipment and the ServicesEquipment.
7.4 Frog’s obligations under this clause 7 shall not apply in the event that the claim or legal action results from:
7.4.1 use of an earlier a penultimate release of the Software than Frog’s current release or the Customer’s failure to use updates and patches supplied by Frog;
7.4.2 use of the Software in combination with any other hardware, software except for the EquipmentEquipment or authorised equipment;
7.4.3 use of the Software other than in accordance with the Agreement; or
7.4.4 the Customer’s failure to procure rights which it ought to have procured for Frog or itself under this Agreement.
Appears in 1 contract
Samples: Terms and Conditions
INTELLECTUAL PROPERTY RIGHTS INDEMNITY. 7.1 Frog 11.1 Subject to clause 11.4, the Supplier shall indemnify defend the Customer against all costs and damages awarded under any final judgment by a court of competent jurisdiction (or which are agreed by Frog in settlement) in respect of any third Party claim that the Customer’s use or possession or use of any of the Frog Software in accordance with Services or the Materials as authorised under this Agreement infringes the Intellectual Property Rights of a third Party (an "IPR Claim"), and indemnify and hold the Customer harmless from and against any third party.
7.2 The indemnity set out in clause 7.1 is subject todamages finally awarded by a court of competent jurisdiction or required to be paid under the terms of a settlement as a direct result of the IPR Claim, provided that:
7.2.1 11.1.1 the Customer giving Frog prompt notice, promptly notifies the Supplier in writing, writing on becoming aware of any reasonably likely or actual IPR Claim (such notice to include full details as to the nature and basis of the details IPR Claim);
11.1.2 the Customer makes no admission of liability, communication or payment to the third Party making the IPR Claim or agrees any settlement or compromise of the claimrelevant IPR Claim without the prior written consent of the Supplier;
7.2.2 Frog having 11.1.3 the Supplier is granted the sole control and conduct and control of any claim or action which is within the scope of the indemnity including defence of the IPR Claim and of any related settlement or negotiations;
7.2.3 the Customer not making any statement prejudicial to Frog; and
7.2.4 11.1.4 the Customer giving Frog Customer, at the Supplier’s request and expense, provides the Supplier with all reasonable help assistance, information and authority, and acts in accordance with the reasonable instructions of the Supplier, in the circumstances described in this clause 11.
11.2 The Supplier shall not have any liability or obligation under this clause 11 in respect of any IPR Claim to the extent that it results from or arises in connection with the claim or action (in which case, Frog shall pay with:
11.2.1 the Customer’s proper and reasonable costs).breach of this Agreement;
7.3 If any claim is made against Frog or 11.2.2 the Customer that the Customer’s possession or use of the Frog Software infringes Materials or the Services (or any third party’s Intellectual Property Rights, Frog will at its option and expense have part of them) by anyone other than the right to:Customer
7.3.1 negotiate a licence for 11.2.3 the Customer for the continued possession or use of the Frog Software in accordance with Materials or the Agreement;
7.3.2 modify the Customer’s copy or copies of the Frog Software so as to perform in accordance with the current On-Line Documentation and Product Description in all material respects and to avoid the claim of infringement Services (or any interlocutory injunction or court order in respect part of the Frog Software; or
7.3.3 if none of the above are reasonably practicable, Frog may terminate the Agreement and refund to the Customer all Fees relating to the Frog Software paid by the Customer under this Agreement which for the avoidance of doubt excludes any Fees relating to the Equipment and the Services.
7.4 Frog’s obligations under this clause 7 shall not apply in the event that the claim or legal action results from:
7.4.1 use of an earlier release of the Software than Frog’s current release or the Customer’s failure to use updates and patches supplied by Frog;
7.4.2 use of the Software in combination with any other hardware, software except for the Equipment;
7.4.3 use of the Software them) other than in accordance with the Agreementterms of this Agreement or the terms of any Supplier documents or materials provided by the Supplier to the Customer;
11.2.4 a specific design, feature or modification provided by the Supplier at the Customer’s request;
11.2.5 any failure by the Customer to implement changes, replacements or new releases recommended by the Supplier where the infringement would have been avoided or mitigated by such changes, replacements or new releases;
11.2.6 the combination or use in combination of the Materials or the Services with any other products, services or items not supplied by the Supplier;
11.2.7 the modification of the Materials or the Services by anyone other than the Supplier or a third Party authorised by the Supplier;
11.2.8 any third-Party components or elements of the Materials or the Services licensed on an open source basis;
11.2.9 any failure by the Customer to obtain any required or relevant licence or pay any required or relevant participation charges;
11.2.10 the possession or use of any Materials or the Services (or any part thereof) by the Customer which is made available on a beta, test or evaluation basis; or
7.4.4 11.2.11 the Customer’s failure wilful misconduct or negligence.
11.3 The Customer shall afford the Supplier (at the Supplier’s cost and expense) an opportunity to procure rights which it ought participate in the defence of, and shall not without the prior written consent of the Supplier settle or otherwise dispose of, any:
11.3.1 IPR Claim where the Supplier does not elect or is unable (for whatever reason) to have procured for Frog or itself assume control of the defence of the claim; or
11.4 Subject always to clause 8.4, the Supplier’s entire liability under this Agreementclause 11 in respect of all losses, costs, interest and expenses (including legal costs) incurred by the Customer in respect of any IPR Claim shall in no event exceed £5,000,000 (five million pounds sterling).
11.5 If any IPR Claim is made or is reasonably likely to be made against the Customer, the Supplier may at its sole option and expense, and the Customer shall permit the Supplier to:
11.5.1 procure for the Customer the right to continue using and possessing the relevant Services or the Materials (or any part thereof);
11.5.2 modify or replace the infringing part of the Services or the Materials (or any part thereof) to avoid the infringement or alleged infringement; or
11.5.3 where neither clause 11.5.1 nor clause 11.5.2 is reasonably practicable, on written notice terminate this Agreement or the Customer’s licence and access to those parts of the Service or the Materials which are the subject of the IPR Claim concerned and refund any prepaid unused Charges paid by the Customer as at the date of the termination in respect of the affected Services or Materials.
11.6 In the event of termination pursuant to clause 11.5.3, at the Supplier’s request the Customer shall destroy and delete and certify in writing that it has destroyed or deleted all copies of the Services or Materials.
11.7 The remedies in this clause11 are the Customer’s sole and exclusive remedies and the Supplier’s sole liabilities in respect of any actual, alleged or reasonably likely IPR Claim.
11.8 Nothing in this Agreement shall restrict or limit the Customer’s general obligation at law to mitigate a loss it may suffer or incur as a result of any event that may give rise to a claim under this clause 11. At the Supplier’s request, the Customer shall demonstrate in writing to the Supplier that it has used its best endeavours to so mitigate.
11.9 The Customer warrants that any specification, design or instruction given by it to the Supplier will not infringe any Intellectual Property Rights or other rights of any third Party and the Customer indemnifies the Supplier in respect of any damages, losses, costs, expenses or claims arising in relation thereto in which case the provisions of this clause 11 shall apply mutatis mutandis. Subject always to clause 8.4, the Customer's entire liability under this clause 11 in respect of all losses, costs, interest and expenses (including legal costs) incurred by the Supplier in respect of any IPR Claim shall in no event exceed £5,000,000 (five million pounds sterling).
Appears in 1 contract
Samples: It Services Agreement
INTELLECTUAL PROPERTY RIGHTS INDEMNITY. 7.1 Frog 11.1 Subject to clause 11.4, the Supplier shall indemnify defend the Customer against all costs and damages awarded under any final judgment by a court of competent jurisdiction (or which are agreed by Frog in settlement) in respect of any third Party claim that the Customer’s use or possession or use of any of the Frog Software in accordance with Services or the Materials as authorised under this Agreement infringes the Intellectual Property Rights of a third Party (an "IPR Claim"), and indemnify and hold the Customer harmless from and against any third party.
7.2 The indemnity set out in clause 7.1 is subject todamages finally awarded by a court of competent jurisdiction or required to be paid under the terms of a settlement as a direct result of the IPR Claim, provided that:
7.2.1 11.1.1 the Customer giving Frog prompt notice, promptly notifies the Supplier in writing, writing on becoming aware of any reasonably likely or actual IPR Claim (such notice to include full details as to the nature and basis of the details IPR Claim);
11.1.2 the Customer makes no admission of liability, communication or payment to the third Party making the IPR Claim or agrees any settlement or compromise of the claimrelevant IPR Claim without the prior written consent of the Supplier;
7.2.2 Frog having 11.1.3 the Supplier is granted the sole control and conduct and control of any claim or action which is within the scope of the indemnity including defence of the IPR Claim and of any related settlement or negotiations;; and Service Provider Agreement
7.2.3 11.1.4 the Customer not making any statement prejudicial to Frog; and
7.2.4 Customer, at the Customer giving Frog Supplier’s request and expense, provides the Supplier with all reasonable help assistance, information and authority, and acts in accordance with the reasonable instructions of the Supplier, in the circumstances described in this clause 11.
11.2 The Supplier shall not have any liability or obligation under this clause 11 in respect of any IPR Claim to the extent that it results from or arises in connection with the claim or action (in which case, Frog shall pay with:
11.2.1 the Customer’s proper and reasonable costs).breach of this Agreement;
7.3 If any claim is made against Frog or 11.2.2 the Customer that the Customer’s possession or use of the Frog Software infringes Materials or the Services (or any third party’s Intellectual Property Rights, Frog will at its option and expense have part of them) by anyone other than the right to:Customer
7.3.1 negotiate a licence for 11.2.3 the Customer for the continued possession or use of the Frog Software in accordance with Materials or the Agreement;
7.3.2 modify the Customer’s copy or copies of the Frog Software so as to perform in accordance with the current On-Line Documentation and Product Description in all material respects and to avoid the claim of infringement Services (or any interlocutory injunction or court order in respect part of the Frog Software; or
7.3.3 if none of the above are reasonably practicable, Frog may terminate the Agreement and refund to the Customer all Fees relating to the Frog Software paid by the Customer under this Agreement which for the avoidance of doubt excludes any Fees relating to the Equipment and the Services.
7.4 Frog’s obligations under this clause 7 shall not apply in the event that the claim or legal action results from:
7.4.1 use of an earlier release of the Software than Frog’s current release or the Customer’s failure to use updates and patches supplied by Frog;
7.4.2 use of the Software in combination with any other hardware, software except for the Equipment;
7.4.3 use of the Software them) other than in accordance with the Agreementterms of this Agreement or the terms of any Supplier documents or materials provided by the Supplier to the Customer;
11.2.4 a specific design, feature or modification provided by the Supplier at the Customer’s request;
11.2.5 any failure by the Customer to implement changes, replacements or new releases recommended by the Supplier where the infringement would have been avoided or mitigated by such changes, replacements or new releases;
11.2.6 the combination or use in combination of the Materials or the Services with any other products, services or items not supplied by the Supplier;
11.2.7 the modification of the Materials or the Services by anyone other than the Supplier or a third Party authorised by the Supplier;
11.2.8 any third-Party components or elements of the Materials or the Services licensed on an open source basis;
11.2.9 any failure by the Customer to obtain any required or relevant licence or pay any required or relevant participation charges;
11.2.10 the possession or use of any Materials or the Services (or any part thereof) by the Customer which is made available on a beta, test or evaluation basis; or
7.4.4 11.2.11 the Customer’s failure wilful misconduct or negligence.
11.3 The Customer shall afford the Supplier (at the Supplier’s cost and expense) an opportunity to procure rights participate in the defence of, and shall not without the prior written consent of the Supplier settle or otherwise dispose of, any:
11.3.1 IPR Claim where the Supplier does not elect or is unable (for whatever reason) to assume control of the defence of the claim; or
11.3.2 claim brought by a third Party in connection with this Agreement for breach of its Intellectual Property Rights, which it ought to have procured for Frog or itself is not covered by the indemnity in this clause 11.
11.4 The Supplier’s entire liability under this clause 11 in respect of all losses, costs, interest and expenses (including legal costs) incurred by the Customer in respect of any IPR Claim shall in no event exceed £5,000,000 (five million pounds sterling).
11.5 If any IPR Claim is made or is reasonably likely to be made against the Customer, the Supplier may at its sole option and expense, and the Customer shall permit the Supplier to:
11.5.1 procure for the Customer the right to continue using and possessing the relevant Services or the Materials (or any part thereof);
11.5.2 modify or replace the infringing part of the Services or the Materials (or any part thereof) to avoid the infringement or alleged infringement; or Service Provider Agreement
11.5.3 where neither clause 11.5.1 nor clause 11.5.2 is reasonably practicable, on written notice terminate this Agreement or the Customer’s licence and access to those parts of the Service or the Materials which are the subject of the IPR Claim concerned and refund any prepaid unused Charges paid by the Customer as at the date of the termination in respect of the affected Services or Materials.
11.6 In the event of termination pursuant to clause 11.5.3, at the Supplier’s request the Customer shall destroy and delete and certify in writing that it has destroyed or deleted all copies of the Services or Materials.
11.7 The remedies in this clause11 are the Customer’s sole and exclusive remedies and the Supplier’s sole liabilities in respect of any actual, alleged or reasonably likely IPR Claim.
11.8 Nothing in this Agreement shall restrict or limit the Customer’s general obligation at law to mitigate a loss it may suffer or incur as a result of any event that may give rise to a claim under this clause 11. At the Supplier’s request, the Customer shall demonstrate in writing to the Supplier that it has used its best endeavours to so mitigate.
11.9 The Customer warrants that any specification, design or instruction given by it to the Supplier will not infringe any Intellectual Property Rights or other rights of any third Party and the Customer indemnifies the Supplier in respect of any damages, losses, costs, expenses or claims arising in relation thereto in which case the provisions of this clause 11 shall apply mutatis mutandis.
Appears in 1 contract
Samples: Service Provider Agreement
INTELLECTUAL PROPERTY RIGHTS INDEMNITY. 7.1 Frog 11.1 Subject to clause 11.4, the Supplier shall indemnify defend the Customer against all costs and damages awarded under any final judgment by a court of competent jurisdiction (or which are agreed by Frog in settlement) in respect of any third Party claim that the Customer’s use or possession or use of any of the Frog Software in accordance with Services or the Materials as authorised under this Agreement infringes the Intellectual Property Rights of a third Party (an "IPR Claim"), and indemnify and hold the Customer harmless from and against any third party.
7.2 The indemnity set out in clause 7.1 is subject todamages finally awarded by a court of competent jurisdiction or required to be paid under the terms of a settlement as a direct result of the IPR Claim, provided that:
7.2.1 11.1.1 the Customer giving Frog prompt notice, promptly notifies the Supplier in writing, writing on becoming aware of any reasonably likely or actual IPR Claim (such notice to include full details as to the nature and basis of the details IPR Claim);
11.1.2 the Customer makes no admission of liability, communication or payment to the third Party making the IPR Claim or agrees any settlement or compromise of the claimrelevant IPR Claim without the prior written consent of the Supplier;
7.2.2 Frog having 11.1.3 the Supplier is granted the sole control and conduct and control of any claim or action which is within the scope of the indemnity including defence of the IPR Claim and of any related settlement or negotiations;
7.2.3 the Customer not making any statement prejudicial to Frog; and
7.2.4 11.1.4 the Customer giving Frog Customer, at the Supplier’s request and expense, provides the Supplier with all reasonable help assistance, information and authority, and acts in accordance with the reasonable instructions of the Supplier, in the circumstances described in this clause 11.
11.2 The Supplier shall not have any liability or obligation under this clause 11 in respect of any IPR Claim to the extent that it results from or arises in connection with the claim or action (in which case, Frog shall pay with:
11.2.1 the Customer’s proper and reasonable costs).breach of this Agreement;
7.3 If any claim is made against Frog or 11.2.2 the Customer that the Customer’s possession or use of the Frog Software infringes Materials or the Services (or any third party’s Intellectual Property Rights, Frog will at its option and expense have part of them) by anyone other than the right to:Customer
7.3.1 negotiate a licence for 11.2.3 the Customer for the continued possession or use of the Frog Software in accordance with Materials or the Agreement;
7.3.2 modify the Customer’s copy or copies of the Frog Software so as to perform in accordance with the current On-Line Documentation and Product Description in all material respects and to avoid the claim of infringement Services (or any interlocutory injunction or court order in respect part of the Frog Software; or
7.3.3 if none of the above are reasonably practicable, Frog may terminate the Agreement and refund to the Customer all Fees relating to the Frog Software paid by the Customer under this Agreement which for the avoidance of doubt excludes any Fees relating to the Equipment and the Services.
7.4 Frog’s obligations under this clause 7 shall not apply in the event that the claim or legal action results from:
7.4.1 use of an earlier release of the Software than Frog’s current release or the Customer’s failure to use updates and patches supplied by Frog;
7.4.2 use of the Software in combination with any other hardware, software except for the Equipment;
7.4.3 use of the Software them) other than in accordance with the Agreementterms of this Agreement or the terms of any Supplier documents or materials provided by the Supplier to the Customer;
11.2.4 a specific design, feature or modification provided by the Supplier at the Customer’s request;
11.2.5 any failure by the Customer to implement changes, replacements or new releases recommended by the Supplier where the infringement would have been avoided or mitigated by such changes, replacements or new releases;
11.2.6 the combination or use in combination of the Materials or the Services with any other products, services or items not supplied by the Supplier;
11.2.7 the modification of the Materials or the Services by anyone other than the Supplier or a third Party authorised by the Supplier;
11.2.8 any third-Party components or elements of the Materials or the Services licensed on an open source basis;
11.2.9 any failure by the Customer to obtain any required or relevant licence or pay any required or relevant participation charges;
11.2.10 the possession or use of any Materials or the Services (or any part thereof) by the Customer which is made available on a beta, test or evaluation basis; or
7.4.4 11.2.11 the Customer’s failure wilful misconduct or negligence.
11.3 The Customer shall afford the Supplier (at the Supplier’s cost and expense) an opportunity to procure rights participate in the defence of, and shall not without the prior written consent of the Supplier settle or otherwise dispose of, any:
11.3.1 IPR Claim where the Supplier does not elect or is unable (for whatever reason) to assume control of the defence of the claim; or
11.3.2 claim brought by a third Party in connection with this Agreement for breach of its Intellectual Property Rights, which it ought is not covered by the indemnity in this clause 11.
11.4 Subject always to have procured for Frog or itself clause 8.5, the Supplier’s entire liability under this Agreementclause 11 in respect of all losses, costs, interest and expenses (including legal costs) incurred by the Customer in respect of any IPR Claim shall in no event exceed £5,000,000 (five million pounds sterling).
11.5 If any IPR Claim is made or is reasonably likely to be made against the Customer, the Supplier may at its sole option and expense, and the Customer shall permit the Supplier to:
11.5.1 procure for the Customer the right to continue using and possessing the relevant Services or the Materials (or any part thereof);
11.5.2 modify or replace the infringing part of the Services or the Materials (or any part thereof) to avoid the infringement or alleged infringement; or
11.5.3 where neither clause 11.5.1 nor clause 11.5.2 is reasonably practicable, on written notice terminate this Agreement or the Customer’s licence and access to those parts of the Service or the Materials which are the subject of the IPR Claim concerned and refund any prepaid unused Charges paid by the Customer as at the date of the termination in respect of the affected Services or Materials.
11.6 In the event of termination pursuant to clause 11.5.3, at the Supplier’s request the Customer shall destroy and delete and certify in writing that it has destroyed or deleted all copies of the Services or Materials.
11.7 The remedies in this clause11 are the Customer’s sole and exclusive remedies and the Supplier’s sole liabilities in respect of any actual, alleged or reasonably likely IPR Claim.
11.8 Nothing in this Agreement shall restrict or limit the Customer’s general obligation at law to mitigate a loss it may suffer or incur as a result of any event that may give rise to a claim under this clause 11. At the Supplier’s request, the Customer shall demonstrate in writing to the Supplier that it has used its best endeavours to so mitigate.
11.9 The Customer warrants that any specification, design or instruction given by it to the Supplier will not infringe any Intellectual Property Rights or other rights of any third Party and the Customer indemnifies the Supplier in respect of any damages, losses, costs, expenses or claims arising in relation thereto in which case the provisions of this clause 11 shall apply mutatis mutandis. Subject always to clause 8.5, the Customer's entire liability under this clause 11 in respect of all losses, costs, interest and expenses (including legal costs) incurred by the Supplier in respect of any IPR Claim shall in no event exceed £5,000,000 (five million pounds sterling).
Appears in 1 contract
Samples: It Services Agreement
INTELLECTUAL PROPERTY RIGHTS INDEMNITY. 7.1 Frog 12.1 Subject to clause 12.4, the Supplier shall indemnify defend the Customer Reseller against all costs and damages awarded under any final judgment by a court of competent jurisdiction (or which are agreed by Frog in settlement) in respect of any third Party claim that the CustomerReseller’s use or possession or use of any of the Frog Software in accordance with Services or the Materials as authorised under this Agreement infringes the Intellectual Property Rights of a third Party (an "IPR Claim"), and indemnify and hold the Reseller harmless from and against any third party.
7.2 The indemnity set out in clause 7.1 is subject todamages finally awarded by a court of competent jurisdiction or required to be paid under the terms of a settlement as a direct result of the IPR Claim, provided that:
7.2.1 12.1.1 the Customer giving Frog prompt notice, Reseller promptly notifies the Supplier in writing, writing on becoming aware of any reasonably likely or actual IPR Claim (such notice to include full details as to the nature and basis of the details IPR Claim);
12.1.2 the Reseller makes no admission of liability, communication or payment to the third Party making the IPR Claim or agrees any settlement or compromise of the claimrelevant IPR Claim without the prior written consent of the Supplier;
7.2.2 Frog having 12.1.3 the Supplier is granted the sole control and conduct and control of any claim or action which is within the scope of the indemnity including defence of the IPR Claim and of any related settlement or negotiations;
7.2.3 the Customer not making any statement prejudicial to Frog; and
7.2.4 12.1.4 the Customer giving Frog Reseller, at the Supplier’s request and expense, provides the Supplier with all reasonable help assistance, information and authority, and acts in accordance with the reasonable instructions of the Supplier, in the circumstances described in this clause 12.
12.2 The Supplier shall not have any liability or obligation under this clause 12 in respect of any IPR Claim to the extent that it results from or arises in connection with with:
12.2.1 the claim or action (in which case, Frog shall pay Reseller’s breach of this Agreement;
12.2.2 the Customer’s proper and reasonable costs).
7.3 If any claim is made against Frog or the Customer that the Customer’s possession or use of the Frog Software infringes Materials or the Services (or any third party’s Intellectual Property Rights, Frog will at its option and expense have part of them) by anyone other than the right to:Reseller
7.3.1 negotiate a licence for 12.2.3 the Customer for the continued possession or use of the Frog Software in accordance with Materials or the Agreement;
7.3.2 modify the Customer’s copy or copies of the Frog Software so as to perform in accordance with the current On-Line Documentation and Product Description in all material respects and to avoid the claim of infringement Services (or any interlocutory injunction or court order in respect part of the Frog Software; or
7.3.3 if none of the above are reasonably practicable, Frog may terminate the Agreement and refund to the Customer all Fees relating to the Frog Software paid by the Customer under this Agreement which for the avoidance of doubt excludes any Fees relating to the Equipment and the Services.
7.4 Frog’s obligations under this clause 7 shall not apply in the event that the claim or legal action results from:
7.4.1 use of an earlier release of the Software than Frog’s current release or the Customer’s failure to use updates and patches supplied by Frog;
7.4.2 use of the Software in combination with any other hardware, software except for the Equipment;
7.4.3 use of the Software them) other than in accordance with the Agreementterms of this Agreement or the terms of any Supplier documents or materials provided by the Supplier to the Reseller;
12.2.4 a specific design, feature or modification provided by the Supplier at the Reseller’s request;
12.2.5 any failure by the Reseller to implement changes, replacements or new releases recommended by the Supplier where the infringement would have been avoided or mitigated by such changes, replacements or new releases;
12.2.6 the combination or use in combination of the Materials or the Services with any other products, services or items not supplied by the Supplier;
12.2.7 the modification of the Materials or the Services by anyone other than the Supplier or a third Party authorised by the Supplier;
12.2.8 any third-Party components or elements of the Materials or the Services licensed on an open source basis;
12.2.9 any failure by the Reseller to obtain any required or relevant licence or pay any required or relevant participation charges;
12.2.10 the possession or use of any Materials or the Services (or any part thereof) by the Reseller which is made available on a beta, test or evaluation basis; or
7.4.4 12.2.11 the CustomerReseller’s failure wilful misconduct or negligence.
12.3 The Reseller shall afford the Supplier (at the Supplier’s cost and expense) an opportunity to procure rights which it ought participate in the defence of, and shall not without the prior written consent of the Supplier settle or otherwise dispose of, any:
12.3.1 IPR Claim where the Supplier does not elect or is unable (for whatever reason) to have procured for Frog or itself assume control of the defence of the claim; or
12.4 The Supplier’s entire liability under this Agreementclause 12 in respect of all losses, costs, interest and expenses (including legal costs) incurred by the Reseller in respect of any IPR Claim shall in no event exceed £5,000,000 (five million pounds sterling).
12.5 If any IPR Claim is made or is reasonably likely to be made against the Reseller, the Supplier may at its sole option and expense, and the Reseller shall permit the Supplier to:
12.5.1 procure for the Reseller the right to continue using and possessing the relevant Services or the Materials (or any part thereof);
12.5.2 modify or replace the infringing part of the Services or the Materials (or any part thereof) to avoid the infringement or alleged infringement; or
12.5.3 where neither clause 12.5.1 nor clause 12.5.2 is reasonably practicable, on written notice terminate this Agreement or the Reseller’s licence and access to those parts of the Service or the Materials which are the subject of the IPR Claim concerned and refund any prepaid unused Charges paid by the Reseller as at the date of the termination in respect of the affected Services or Materials.
12.6 In the event of termination pursuant to clause 12.5.3, at the Supplier’s request the Reseller shall destroy and delete and certify in writing that it has destroyed or deleted all copies of the Services or Materials.
12.7 The remedies in this clause 12 are the Reseller’s sole and exclusive remedies and the Supplier’s sole liabilities in respect of any actual, alleged or reasonably likely IPR Claim.
12.8 Nothing in this Agreement shall restrict or limit the Reseller’s general obligation at law to mitigate a loss it may suffer or incur as a result of any event that may give rise to a claim under this clause 12. At the Supplier’s request, the Reseller shall demonstrate in writing to the Supplier that it has used its best endeavours to so mitigate.
12.9 The Reseller warrants that any specification, design or instruction given by it to the Supplier will not infringe any Intellectual Property Rights or other rights of any third Party and the Reseller indemnifies the Supplier in respect of any damages, losses, costs, expenses or claims arising in relation thereto in which case the provisions of this clause 12 shall apply mutatis mutandis.
Appears in 1 contract
Samples: Reseller Agreement
