Common use of INTELLECTUAL PROPERTY RIGHTS INDEMNITY Clause in Contracts

INTELLECTUAL PROPERTY RIGHTS INDEMNITY. 41.1 The Service Provider warrants and undertakes that: 41.1.1 the provision and receipt of the Services; 41.1.2 the operation of the Service Systems (including without limitation use of Software); and 41.1.3 the use by TfL, the TfL Group, Other Service Providers, Third Parties, any New Service Provider or any other nominee of TfL or permitted sublicensee of the Service Materials, Deliverables, and Intellectual Property Rights assigned or licensed to TfL (or sublicensed to its sublicensee) in accordance with Clauses 38 (Ownership and Assignment of Intellectual Property Rights) and 39 (Licensing of Intellectual Property Rights), shall not infringe or otherwise misappropriate the Intellectual Property Rights of any Third Party. 41.2 The Service Provider shall indemnify each member of the TfL Group and keep each member of the TfL Group indemnified in full against all Losses howsoever arising (including without limitation in contract or tort) from or in connection with any claim or threatened claim which may be brought against any member of the TfL Group by a third party by reason of any infringement or other misappropriation or alleged infringement or other misappropriation of any Intellectual Property Rights in connection with the circumstances referred to in Clause 41.1.1, 41.1.2 or 41.1.3 (a "Claim" or together, "Claims"), save to the extent that such infringement is caused by TfL or another Service Provider acting outside the scope of its licence pursuant to Clause 39.1. 41.3 On receipt of notice of any Claim from TfL, the Service Provider shall provide TfL with relevant Information in respect of such Claim and the Service Provider’s initial assessment of the potential impact of the Claim on the Services and the operation of this Agreement ("Initial Claim Assessment"). The Service Provider shall regularly (and in any event no less than once per week following the date of the Initial Claim Assessment) report in writing to TfL in respect of developments in respect of each Claim. Such report shall include without limitation any Information in respect of the Claim not previously provided to TfL by the Service Provider and the Service Provider’s update to the Initial Claim Assessment. 41.4 The Service Provider shall at its own expense conduct any litigation arising from any infringement or other misappropriation or alleged infringement or other misappropriation of a Third Party’s Intellectual Property Rights and all negotiations in connection therewith in such a way as to minimise damage to the reputation of TfL. TfL hereby agrees to grant to the Service Provider the exclusive control of any such litigation and such negotiations save that the Service Provider shall consult with TfL (and take due account of matters raised by TfL) at all times in respect of the Service Provider’s conduct of any such litigation and save that in the event that the Service Provider refuses or has delayed in any way to solve or participate fully in any Claim or failed to consult with TfL in respect of the Service Provider’s conduct of any such litigation (and take due account of matters raised by TfL) or failed to minimise damage to TfL’s reputation resulting from a Claim (as required above), TfL may take over the conduct of the Claim by giving written notice to the Service Provider (at the cost and expense of the Service Provider including without limitation in respect of the amount of any settlement or judgment and reasonable legal fees and disbursements). 41.5 At the request of the Party that has control of the Claim, the other Party shall afford to it all reasonable assistance for the purpose of contesting any Claim and (in the case of such assistance by TfL) the Service Provider shall repay TfL all costs and expenses incurred by TfL in so doing including, without limitation, full legal costs and disbursements. 41.6 Unless permitted by the Service Provider and subject to TfL's rights to take over and conduct any Claim under Clause 41.4, TfL shall not make any admissions which may be prejudicial to the defence or settlement of any Claim. 41.7 Without limiting the indemnity in Clause 41.2, if a Claim is made or in the opinion of TfL or the Service Provider is likely to be made, the Service Provider shall at the Service Provider’s sole option (provided that the Service Provider shall consult with TfL (and take due account of matters raised by TfL) at all times in respect of the Service Provider’s exercise of such option, including without limitation so as to ensure minimal disruption to the provision of the Services and minimal damage to the reputation of TfL), and the Service Provider’s own expense: 41.7.1 modify any part or all of the Service Materials or Deliverables without reducing the performance and functionality of the same, or substitute alternative items or services of equivalent performance and functionality so as to avoid the infringement or other misappropriation or alleged infringement or other misappropriation, provided that the terms herein shall apply mutatis mutandis to such modified items or services; or 41.7.2 procure a licence for TfL to use the item(s) or Services on the same terms as Clause 39.1 (Licence from Service Provider). 41.8 If the Service Provider has not, within twenty (20) Working Days of a written request by TfL to do so, modified or supplied substitute item(s) or services under Clause 41.7.1 or procured a licence in accordance with Clause 41.7.2, then (without limiting the indemnity in Clause 41.2), TfL may terminate this Agreement by written notice to the Service Provider with immediate effect. 41.9 Without limiting the indemnity in Clause 41.2, if a modification or substitution in accordance with Clause 41.7.1 above is not possible so as to avoid the infringement or alleged infringement or the Service Provider has been unable to procure a licence in accordance with Clause 41.7.2 (and TfL has not terminated this Agreement pursuant to Clause 41.8) the Service Provider shall be liable for all unavoidable costs of substitute items or services pursuant to the terms of this Agreement. 41.10 TfL will defend and indemnify the Service Provider against any claim that TfL Background IPR used by the Service Provider as permitted by the terms of this Agreement infringes or misappropriates a Third Party’s Intellectual Property Rights, except for any item or thing the subject of the indemnity in Clause 41.2, and provided that the Service Provider: 41.10.1 notifies TfL in writing within five (5) Working Days of the Service Provider first becoming aware of the claim; 41.10.2 permits TfL to conduct the defence of any such claim using legal counsel of TfL's own choosing; 41.10.3 provides TfL with all assistance and information as reasonably requested by TfL in connection with the claim; 41.10.4 does not make any admission of liability, not settle or conclude any agreement in relation to such liability or make any compromise with any person, body or authority in relation to such liability without the prior written consent of TfL; and 41.10.5 consents to any settlement of such claim which TfL deems acceptable. This Clause 41.10 does not apply to Deliverables created by the Service Provider, or Services provided by the Service Provider, using the TfL Background IPR, as it is at the Service Provider’s discretion to choose the manner in which it creates such Deliverables or provides such Services.

INTELLECTUAL PROPERTY RIGHTS INDEMNITY. 41.1 ‌ 43.1 The Service Provider warrants and undertakes that: 41.1.1 (A) the provision to and receipt of the ServicesServices by TfL; 41.1.2 (B) the operation of the Service Systems Enforcement Infrastructure (including without limitation use of Software); and 41.1.3 the use by TfL(C) subject to clause 43.2, the use, copying, modification and adaptation by TfL Group, Other Service Providers, Third Parties, any New Service Provider (or any other nominee its permitted sub-licensors) of TfL or permitted sublicensee of the Service Materials, Deliverables, and all Intellectual Property Rights licensed or assigned or licensed to TfL under clauses 42.1(B) or 42.2(E) to 42.2(G) (or sublicensed to its sublicenseeincluding without limitation all Software, Source Code, Documentation, Systems and Data in which those Intellectual Property Rights subsist) in accordance with Clauses 38 clause 42 (Ownership and Assignment of Intellectual Property Rights) and 39 (Licensing of Intellectual Property Rights), shall not infringe or otherwise misappropriate the Intellectual Property Rights of any Third Party. 41.2 43.2 The warranty in clause 43.1(C) shall: (A) in relation to the Service Provider’s Solution, be deemed to apply from the date of the commencement of the TDE; (B) not apply to the extent that such infringement arises as a result of any enhancement, modification or adaptation made other than by the Service Provider or without the Service Provider’s consent; and (C) not apply to any use, copying, enhancement, modification or adaptation for the purposes envisaged under clause 42.2(E)(3) other than such use, copying, enhancement, modification or adaptation as is otherwise necessary for TfL to enjoy the full benefit of the Services in accordance with the provisions of this Agreement. 43.3 The Service Provider shall on demand fully indemnify each member of the TfL Group and shall keep each member of the TfL Group indemnified in full against all Losses howsoever arising any expense, cost, liability, loss, damage, actions, claims or proceedings whatsoever (including without limitation in contract or tortreasonable legal fees and disbursements on a solicitor and own client basis) arising from or in connection with any claim or threatened claim which may be brought against any member of the TfL Group by a third party incurred by reason of any infringement or other misappropriation or alleged infringement or other misappropriation of any Intellectual Property Rights Rights: (A) in connection with the circumstances referred to in Clause 41.1.1clause 43.1(A), 41.1.2 43.1(B) or 41.1.3 43.1(C) (a "Claim" in the case of the Service Provider’s Solution from the date of commencement of the TDE); or (B) used in connection with the Services or the Enforcement Infrastructure, (together, "“Claims"”), save . The indemnity in this clause is not subject to the limits or exclusions set out in clause 49 (Indemnities and Limitations of Liability) other than those set out in clause Error! Reference source not found.. 43.4 The indemnity in clause 43.3 shall: (A) not apply to the extent that TfL has modified, adapted, enhanced or copied the Intellectual Property Rights and such infringement would not have occurred but for that modification; enhancement adaptation or copy; and (B) not apply to any use of the Intellectual Property Rights for the purposes envisaged under clause 42.2(E)(3), other than such use as is caused by TfL otherwise in accordance with or another Service Provider acting outside permitted under the scope provisions of its licence pursuant to Clause 39.1this Agreement. 41.3 On receipt of notice of any Claim from TfL, the Service Provider shall provide TfL with relevant Information in respect of such Claim and the Service Provider’s initial assessment of the potential impact of the Claim on the Services and the operation of this Agreement ("Initial Claim Assessment"). 43.5 The Service Provider shall regularly (and in forthwith notify TfL if any event no less than once per week following the date of the Initial Claim Assessment) report in writing to TfL in respect of developments in respect of each Claim. Such report shall include without limitation any Information in respect of the Claim not previously provided to TfL by the Service Provider and is made or brought against the Service Provider’s update to the Initial Claim Assessment. 41.4 43.6 The Service Provider shall at its own expense conduct any litigation arising from any infringement or other misappropriation or alleged infringement or other misappropriation of a Third Party’s Intellectual Property Rights and all negotiations in connection therewith in such a way as to minimise damage to the reputation of TfL. and TfL hereby agrees to grant to the Service Provider the exclusive control of any such litigation and such negotiations save that the Service Provider shall consult with TfL (and take due account of matters raised by TfL) at all times in respect of the Service Provider’s conduct of any such litigation and save that in the event that the Service Provider refuses or has delayed in any way to solve or participate fully in any Claim or failed to consult with TfL in respect of the Service Provider’s conduct of any such litigation (and take due account of matters raised by TfL) or failed to minimise damage to TfL’s reputation resulting from a Claim (as required above), TfL may take over the conduct of the Claim by giving written notice to the Service Provider (at the cost and expense of the Service Provider including without limitation in respect of the amount of any settlement or judgment and reasonable legal fees and disbursements)negotiations. 41.5 43.7 At the request of the Party that has control of the ClaimService Provider, the other Party TfL shall afford to it all reasonable assistance for the purpose of contesting any Claim made or brought against TfL for infringement or alleged infringement of any Intellectual Property Rights and (in the case of such assistance by TfL) the Service Provider shall repay TfL be repaid all reasonable costs and expenses incurred by TfL in so doing including, without limitation, full legal costs and disbursementsdisbursements on a solicitor and own client basis. 41.6 43.8 Unless permitted in writing by the Service Provider and subject to TfL's rights to take over and conduct any Claim under Clause 41.4Provider, TfL shall not make any admissions which may be prejudicial to the defence or settlement of any Claim.Claim for infringement or alleged infringement of any Intellectual Property Rights by TfL. 41.7 43.9 Without limiting the indemnity in Clause 41.2clause 43.3, if a Claim for infringement or alleged infringement of any Intellectual Property Rights is made in connection with any items or Services supplied by the Service Provider under this Agreement or in the reasonable opinion of TfL or the Service Provider is likely to be made, the Service Provider shall may at the Service Provider’s its sole option (provided that the Service Provider shall consult with TfL (and take due account of matters raised by TfL) at all times in respect of the Service Provider’s exercise of such option, including without limitation so as to ensure minimal disruption to the provision of the Services and minimal damage to the reputation of TfL), and the Service Provider’s own expense: 41.7.1 (A) modify any part or all of the Service Materials item(s) or Deliverables Services without reducing the performance and functionality of the same, or substitute alternative items or services of equivalent performance and functionality so as to avoid the infringement or other misappropriation or the alleged infringement or other misappropriationinfringement, provided that the terms herein shall apply mutatis mutandis to such modified items or services; or; 41.7.2 (B) procure a licence for TfL to use the item(s) or Services; or (C) take such other action as the Service Provider may propose and TfL may agree to avoid or settle such Claim, provided that where such items or Services on directly affect or directly interface with the same terms as Clause 39.1 (Licence from public such action shall not be at the Service Provider)'s sole option but shall require the prior written approval of TfL, such approval not to be unreasonably withheld or delayed. 41.8 43.10 If the Service Provider has not, within twenty (20availed itself of its rights to modify the item(s) Working Days of a written request by TfL or Services or to do so, modified or supplied supply substitute item(s) or services under Clause 41.7.1 clause 43.9(A) or procured to procure a licence in accordance with Clause 41.7.2clause 43.9(B) and such exercise of the said rights has avoided any Claim for infringement or alleged infringement, or if the Service Provider has otherwise avoided or settled the Claim for infringement or alleged infringement in accordance with clause 43.9(C), then (without limiting the indemnity in Clause 41.2clause 43.3 in relation to loss or damage sustained by TfL before the time of modification, or avoidance or settlement of the Claim), TfL may terminate this Agreement by written notice to the Service Provider with immediate effectshall have no further liability thereafter under this clause 43 in respect of the said Claim. 41.9 43.11 Without limiting the indemnity in Clause 41.2clause 43.3, if a modification or substitution in accordance with Clause 41.7.1 clause 43.9(A) above is not possible so as to avoid the infringement or alleged infringement or the Service Provider has been unable to procure a licence in accordance with Clause 41.7.2 (and TfL clause 43.9(B) or if the Service Provider has not terminated this Agreement pursuant otherwise been unable to Clause 41.8avoid or settle the infringement or alleged infringement in accordance with clause 43.9(C) the Service Provider shall be liable for all unavoidable costs of substitute items or services pursuant to the terms of this Agreement. 41.10 43.12 Subject to the provisions of clauses 43.13 and 43.14, TfL will defend and fully indemnify the Service Provider and keep the Service Provider indemnified against any claim that any material furnished by TfL Background IPR and used by the Service Provider as permitted by the terms of this Agreement (“TfL Furnished Material”) infringes a Third Party’s Intellectual Property Rights provided that: (A) the Service Provider notifies TfL in writing within twenty (20) Working Days of the claim; (B) TfL has sole control of the defence and all related settlement negotiations; and (C) the Service Provider provides TfL with the assistance, information and authority necessary to perform the above. Reasonable out-of-pocket expenses incurred by the Service Provider in providing such assistance will be reimbursed by TfL, including, without limitation, full legal costs and disbursements on a solicitor and client basis. 43.13 Clause 43.12 does not apply to the extent the relevant infringement arises as a result of any enhancement, modification or misappropriates adaptation of TfL Furnished Material and such infringement would not have arisen had such enhancement, modification or adaptation not been made. 43.14 If some or all of the TfL Furnished Material is held or is believed by TfL to infringe a Third Party’s Intellectual Property Rights, except for any item TfL shall have the option, at its expense: (A) to modify the material to be non-infringing or thing the subject of the indemnity in Clause 41.2, and provided that supply substitute non-infringing material to the Service Provider:; 41.10.1 notifies TfL in writing within five (5B) Working Days of to obtain for the Service Provider first becoming aware the right to continue using TfL Furnished Material; or (C) to require return of the claim; 41.10.2 permits infringing material from the Service Provider and terminate all rights thereto. If such return materially affects either party’s ability to meet its obligations under this Agreement, and TfL is unable to conduct obtain a reasonable substitute for such material and the defence of any such claim using legal counsel of TfL's own choosing; 41.10.3 provides TfL with all assistance and information as reasonably requested by Service Provider is unable to assist TfL in connection obtaining a reasonable substitute for such material, then the parties shall enter good faith discussions using the Change Control Request Procedure to make such amendments to this Agreement, the Services or the Enforcement Infrastructure as may be necessary to maintain the provision of the Services with the claim; 41.10.4 does not make any admission minimum of liability, not settle or conclude any agreement in relation to such liability or make any compromise with any person, body or authority in relation to such liability without the prior written consent of TfL; and 41.10.5 consents to any settlement of such claim which TfL deems acceptable. This Clause 41.10 does not apply to Deliverables created by the Service Provider, or Services provided by the Service Provider, using the TfL Background IPR, as it is at the Service Provider’s discretion to choose the manner in which it creates such Deliverables or provides such Servicesdisruption.

INTELLECTUAL PROPERTY RIGHTS INDEMNITY. 41.1 40.1 The Service Provider warrants and undertakes that: 41.1.1 40.1.1 the provision and receipt of the Services; 41.1.2 40.1.2 the operation of the Service D&EI Systems (including without limitation use of Software); and 41.1.3 40.1.3 the use by TfL, the TfL Group, Other Service Providers, Third Parties, any New Service Provider or any other nominee of TfL or permitted sublicensee of the Service Provider Materials, Deliverables, and Intellectual Property Rights Rig ts assigned or licensed icensed to TfL (or sublicensed sub icensed to its sublicenseesub icensee) in accordance with Clauses 38 wit C auses 37 (Ownership and Assignment of Intellectual Property Rights) and 39 38 (Licensing of Intellectual Property Rights), shall not infringe or otherwise misappropriate the Intellectual Property Rights of any Third Party. 41.2 40.2 The Service Provider shall indemnify each member of the TfL Group and keep each member of the TfL Group indemnified in full against all Losses howsoever arising (including without limitation in contract or tort) from or in connection with any claim or threatened claim which may be brought against any member of the TfL Group Group, Other Service Providers, or any New Service Provider by a third party Third Party by reason of any infringement or other misappropriation or alleged infringement or other misappropriation of any Intellectual Property Rights in connection with the circumstances referred to in Clause 41.1.1Clauses 40.1.1, 41.1.2 40.1.2 or 41.1.3 40.1.3 (a "Claim" or together, "Claims"), save to the extent that such infringement is caused by a member of the TfL or another Service Provider Group acting outside the scope of its licence pursuant to Clause 39.138.1 (Licensing of Intellectual Property Rights). 41.3 40.3 On receipt of notice of any Claim from TfL, the Service Provider shall provide TfL with relevant Information wit re evant Infor ation in respect res ect of such Claim suc C ai and the t e Service Provider’s initial initia assessment of the potential impact of the Claim on the Services and the operation of this Agreement ("Initial Claim Assessment"). The Service Provider shall regularly (and in any event no less than once per week following the date of the Initial Claim Assessment) report in writing to TfL in respect of developments in respect of each Claim. Such report shall include without limitation any Information information in respect of the Claim not previously provided to TfL by the Service Provider and the t e Service Provider’s update u date to the Initial Claim Assessmentt e Initia C ai Assess ent. 41.4 40.4 The Service Provider shall at its own expense conduct any litigation arising from any infringement or other misappropriation or alleged infringement or other misappropriation of a Third Party’s Intellectual Property Rights Claim and all negotiations in connection therewith in such a way as to minimise damage to the reputation of TfL. TfL hereby agrees to grant to the Service Provider the exclusive control of any such litigation and such negotiations save that the Service Provider shall consult with TfL (and take due account of matters atters raised by TfL) at all times a ti es in respect res ect of the t e Service Provider’s conduct of any such litigation and save that in the event that the Service Provider refuses or has delayed in any way to solve or participate fully in any Claim or failed to consult with wit TfL in respect res ect of the t e Service Provider’s conduct of any such litigation suc itigation (and take due account of matters raised by TfL) or failed to minimise damage ini ise da age to TfL’s reputation resulting from a Claim (as required above), TfL may take over the conduct of the Claim by giving written notice to the Service Provider (at the cost and expense of the Service Provider including without limitation in respect of the amount of any settlement or judgment and reasonable legal fees and disbursements). 41.5 40.5 At the request of the Party that has control of the Claim, the other Party shall afford to it all reasonable assistance for the purpose of contesting any Claim and (in the case of such assistance by TfL) the Service Provider shall repay TfL all costs and expenses incurred by TfL in so doing including, without limitation, full legal costs and disbursements. 41.6 40.6 Unless permitted by the Service Provider and subject to TfL's rights TfL s rig ts to take over and conduct any Claim C ai under Clause 41.4C ause 40.4, TfL shall not make any admissions which may be prejudicial to the defence or settlement of any Claim. 41.7 Without limiting the indemnity 40.7 Wit out i iting t e inde nity in Clause 41.2C ause 40.2, if a Claim is made or in the opinion of TfL or the Service Provider is likely to be made, the Service Provider shall at the Service Provider’s sole option (provided that the so e o tion ( rovided t at t e Service Provider shall consult with s a consu t wit TfL (and take due account of matters raised by TfL) at all times in respect of the Service Provider’s exercise e ercise of such optionsuc o tion, including without limitation inc xxxxx wit out i itation so as to ensure minimal disruption to the provision of the Services and minimal damage to the reputation of TfL), and the Service Provider’s own expensee ense: 41.7.1 40.7.1 modify any part or all of the Service Provider Materials or Deliverables without reducing the performance and functionality of the same, or substitute alternative items or services of equivalent performance and functionality so as to avoid the any infringement or other misappropriation or alleged infringement or other misappropriationmisappropriation of a T ird Party’s Inte ectua Pro erty Rig ts, provided that the terms herein shall apply mutatis mutandis to such modified items or services; or 41.7.2 40.7.2 procure a licence icence for TfL to use the item(st e ite (s) or Services on the same terms t e sa e ter s as Clause 39.1 C ause 38.1 (Licence from Service ProviderLicensing of Intellectual Property Rights). 41.8 40.8 If the Service Provider has not, within twenty (20) Working Days of a written request by TfL to do soClaim being made, modified or supplied su ied substitute item(site (s) or services under Clause 41.7.1 C ause 40.7.1 or procured rocured a licence icence in accordance with Clause 41.7.2wit C ause 40.7.2, then (without limiting the indemnity in Clause 41.240.2), TfL may terminate this Agreement by written notice to the Service Provider with immediate effect. 41.9 Without limiting the indemnity 40.9 Wit out i iting t e inde nity in Clause 41.2C ause 40.2, if a modification odification or substitution in accordance with Clause 41.7.1 wit C ause 40.7.1 above is not possible so as to avoid the infringement Claim or alleged infringement or the t e Service Provider has as been unable unab e to procure rocure a licence icence in accordance with Clause 41.7.2 wit C ause 40.7.2 (and TfL has not terminated this Agreement pursuant to Clause 41.840.8) the Service Provider shall be liable for all unavoidable costs of substitute items or services pursuant to the terms of this Agreement. 41.10 TfL will defend and indemnify the Service Provider against any claim that TfL Background IPR used by the Service Provider as permitted by the terms of this Agreement infringes or misappropriates a Third Party’s Intellectual Property Rights, except for any item or thing the subject of the indemnity in Clause 41.2, and provided that the Service Provider: 41.10.1 notifies TfL in writing within five (5) Working Days of the Service Provider first becoming aware of the claim; 41.10.2 permits TfL to conduct the defence of any such claim using legal counsel of TfL's own choosing; 41.10.3 provides TfL with all assistance and information as reasonably requested by TfL in connection with the claim; 41.10.4 does not make any admission of liability, not settle or conclude any agreement in relation to such liability or make any compromise with any person, body or authority in relation to such liability without the prior written consent of TfL; and 41.10.5 consents to any settlement of such claim which TfL deems acceptable. This Clause 41.10 does not apply to Deliverables created by the Service Provider, or Services provided by the Service Provider, using the TfL Background IPR, as it is at the Service Provider’s discretion to choose the manner in which it creates such Deliverables or provides such Services.

INTELLECTUAL PROPERTY RIGHTS INDEMNITY. 41.1 The 53.1 Subject to clause 53.2, the Service Provider warrants and undertakes that: 41.1.1 (A) the provision and receipt of the Services; 41.1.2 (B) the operation of the Service Systems (including without limitation use of Software); and 41.1.3 (C) the use by TfL, the TfL Group, Other Service Providers, Third Parties, any New Service Provider or any other nominee of TfL or permitted sublicensee of the Service MaterialsSoftware, DeliverablesHardware, Systems, Documentation, Data, Information, and other Intellectual Property Rights Rights, in each case assigned or licensed to TfL it (or sublicensed to its sublicensee) in accordance with Clauses 38 clauses 50 (Ownership and Assignment of Intellectual Property Rights) and 39 51 (Licensing of Intellectual Property Rights), shall not infringe or otherwise misappropriate the Intellectual Property Rights of any Third Party. 41.2 53.2 The Parties agree that the warranties in clause 53.1 shall not apply if and to the extent that any infringement arises in respect of: (A) TfL’s and/or its permitted sublicensees’ use of the TfL Materials or Licensed Materials in combination with specific Hardware or Software (not provided or recommended by the Service Provider (including as part of the Services Materials)), provided that the Service Provider shall expressly notify TfL in writing where the Service Provider is aware that the combination of relevant TfL Materials or Licensed Materials with specific Hardware or Software would lead to an infringement or an alleged infringement; and/or (B) use of the Licensed Materials in contravention of the terms of the licence granted under clause Error! Reference source not found. (Licensing of Intellectual Property Rights). 53.3 The Service Provider shall fully indemnify each member of the TfL Group and keep TfL indemnified against each member of the TfL Group indemnified in full against all Losses howsoever arising and every action, proceeding, demand, liability, cost, claim, loss, expense (including without limitation in contract reasonable legal fees and disbursements on an indemnity basis under clause 53.5 or tort53.6) and demand arising from or in connection with any claim or threatened claim which may be brought against any member of incurred by TfL, the TfL Group by a third party Group, Other Service Providers, Third Parties, any New Service Provider or any other nominee of TfL or permitted sublicensee by reason of any infringement or other misappropriation or alleged infringement or other misappropriation of any Intellectual Property Rights in connection with the circumstances referred to in Clause 41.1.1clause 53.1(A), 41.1.2 53.1(B) or 41.1.3 53.1(C) (a "“Claim" ” or together, "“Claims"”), save to the extent that such infringement is caused by TfL or another . 53.4 The Service Provider acting outside shall forthwith notify TfL if any Claim is made or brought against the scope Service Provider. At the same time as notifying TfL of its licence pursuant to Clause 39.1. 41.3 On any such Claim or on receipt of notice of any other Claim from TfL, the Service Provider shall provide TfL with relevant Information in respect of such Claim and the Service Provider’s initial assessment of the potential impact of the Claim on the Services and the operation of this Agreement ("“Initial Claim Assessment"”). The Service Provider shall regularly (and in any event no less than once per week following the date of the Initial Claim Assessment) report in writing to TfL in respect of developments in respect of each Claim. Such report shall include without limitation any Information in respect of the Claim not previously provided to TfL by the Service Provider and the Service Provider’s update to the Initial Claim Assessment. 41.4 53.5 The Service Provider shall at its own expense conduct any litigation arising from any infringement or other misappropriation or alleged infringement or other misappropriation of a Third Party’s Intellectual Property Rights and all negotiations in connection therewith in such a way as to minimise damage to the reputation of TfL. TfL hereby agrees to grant to the Service Provider the exclusive control of any such litigation and such negotiations save that the Service Provider shall consult with TfL (and take due account of matters raised by TfL) at all times in respect of the Service Provider’s conduct of any such litigation and save that in the event that the Service Provider refuses or has delayed in any way to solve or participate fully in any Claim or failed to consult with TfL in respect of the Service Provider’s conduct of any such litigation (and take due account of matters raised by TfL) or failed to minimise damage to TfL’s reputation resulting from a Claim (as required above), TfL may take over the conduct of the Claim by giving written notice to the Service Provider (at the cost and expense of the Service Provider including without limitation in respect of the amount of any settlement or judgment and reasonable legal fees and disbursementsdisbursements on a solicitor and own client basis). 41.5 53.6 At the request of the Party that has control of the Claim, the other Party shall afford to it all reasonable assistance for the purpose of contesting any Claim and (in the case of such assistance by TfL) the Service Provider shall repay TfL all costs and expenses incurred by TfL in so doing including, without limitation, full legal costs and disbursementsdisbursements on a solicitor and own client basis. 41.6 53.7 Unless permitted by the Service Provider and subject to TfL's TfL rights to take over and conduct any Claim under Clause 41.4clause 53.5, TfL shall not make any admissions which may be prejudicial to the defence or settlement of any Claim.Claim for infringement or alleged infringement of any Intellectual Property Rights by TfL. 41.7 53.8 Without limiting the indemnity in Clause 41.2clause 53.3, if a Claim is made or in the opinion of TfL or the Service Provider is likely to be made, the Service Provider shall at the Service Provider’s sole option (provided that the Service Provider shall consult with TfL (and take due account of matters raised by TfL) at all times in respect of the Service Provider’s exercise of such option, including without limitation so as to ensure minimal disruption to the provision of the Services and minimal damage to the reputation of TfL), and the Service Provider’s own expense: 41.7.1 (A) modify any part or all of the Service Materials Software, Hardware, Systems, Services, Documentation, Data, Information or Deliverables other Intellectual Property Rights without reducing the performance and functionality of the same, or substitute alternative items or services of equivalent performance and functionality so as to avoid the infringement or other misappropriation or the alleged infringement or other misappropriationinfringement, provided that the terms herein shall apply mutatis mutandis to such modified items or services; or; 41.7.2 (B) procure a licence for TfL to use the item(s) or Services on the same terms as Clause 39.1 clause Error! Reference source not found. (Licence from Service Provider); or (C) take such other action as the Service Provider may propose and TfL may agree to avoid or settle such Claim. 41.8 53.9 If the Service Provider has not, within twenty (20) Working Days of a written request by TfL to do so, modified or supplied substitute item(s) or services under Clause 41.7.1 clause 53.8(A) or procured a licence in accordance with Clause 41.7.2clause 53.8(B) and this has not avoided any Claim for infringement or alleged infringement, and if the Service Provider has otherwise failed to avoid or settle the Claim for infringement or alleged infringement in accordance with clause 53.8(C), then (without limiting the indemnity in Clause 41.2clause 53.3), TfL may terminate this Agreement by written notice to with immediate effect and the Service Provider shall be liable for all reasonable and unavoidable costs of such modifications and substitution, including without limitation any costs associated with immediate effectthe implementation and maintenance of such modifications and substitution. 41.9 53.10 Without limiting the indemnity in Clause 41.2clause 53.3, if a modification or substitution in accordance with Clause 41.7.1 clause 53.8(A) above is not possible so as to avoid the infringement or alleged infringement or the Service Provider has been unable to procure a licence in accordance with Clause 41.7.2 clause 53.8(B) or if the Service Provider has otherwise been unable to avoid or settle the infringement or alleged infringement in accordance with clause 53.8(C) (and TfL has not terminated this Agreement pursuant to Clause 41.8clause 53.9) the Service Provider shall be liable for all unavoidable costs of substitute items or services pursuant to the terms of this Agreement. 41.10 53.11 Subject to the provisions of clause 53.12, TfL will defend and indemnify the Service Provider against any claim that TfL Background IPR and TfL Materials (where the Intellectual Property Rights in those TfL Materials were created by or on behalf of TfL (other than by or on behalf of the Service Provider) and those TfL Materials have been provided by TfL to the Service Provider) used by the Service Provider as permitted by the terms of this Agreement (“TfL Furnished Material”) infringes or misappropriates a Third Party’s Intellectual Property Rights, except for any item or thing the subject of the indemnity in Clause 41.2, clause 53.3 and provided that that: (A) the Service Provider: 41.10.1 Provider notifies TfL in writing within five twenty (520) Working Days of the Service Provider first becoming aware of the claim; 41.10.2 permits (B) TfL to conduct has sole control of the defence of any such claim using legal counsel of TfL's own choosing;and all related settlement negotiations; and 41.10.3 (C) the Service Provider provides TfL with all the assistance, Information and authority necessary to perform the above. Reasonable out-of-pocket expenses incurred by the Service Provider in providing such assistance will be reimbursed by TfL, including, without limitation, full legal costs and information as reasonably requested by TfL in connection with the claim; 41.10.4 does not make any admission of liability, not settle or conclude any agreement in relation to such liability or make any compromise with any person, body or authority in relation to such liability without the prior written consent of TfL; and 41.10.5 consents to any settlement of such claim which TfL deems acceptabledisbursements on a solicitor and client basis. This Clause 41.10 clause 53.11 does not apply to Deliverables created by the Service Provider, or Services provided by the Service Provider, using the arising out of TfL Background IPRFurnished Material, as it is at the Service Provider’s discretion to choose the manner in which it creates such Deliverables or provides such Services. 53.12 If some or all of TfL Furnished Material is held or is believed by TfL to infringe a Third Party’s Intellectual Property Rights, TfL shall have the option, at its expense: (A) to modify the material to be non-infringing or supply substitute non-infringing material to the Service Provider; (B) to obtain for the Service Provider the right to continue using TfL Furnished Material; or (C) to require return of the infringing material from the Service Provider and terminate all rights thereto. If such return materially affects either Party’s ability to meet its obligations under this Agreement, and TfL is unable to obtain a reasonable substitute for such material and the Service Provider is unable to assist TfL in obtaining a reasonable substitute for such material, then the Parties shall enter good faith discussions using the Change Control Request Procedure to make such amendments to this Agreement, the Services or the Service Systems as may be necessary to maintain the provision of the Services with the minimum of disruption.