Common use of IP Infringement Clause in Contracts

IP Infringement. Subject to the limitations in Xxxxxxx 00, XXX shall indemnify and defend Customer from any damages, costs, liabilities, expenses (including reasonable attorney’s fees) (“Damages”) actually incurred or finally adjudicated as to any third-party claim or action alleging that the Software delivered pursuant to this Agreement infringe or misappropriate any third party’s patent, copyright, trade secret, or other intellectual property rights enforceable in the applicable jurisdiction (each, an “Indemnified Claim”). If Customer makes an Indemnified Claim under this Section or if ESO determines that an Indemnified Claim may occur, ESO shall at its option: (a) obtain a right for Customer to continue using such Software; (b) modify such Software to make it a non-infringing equivalent or (c) replace such Software with a non-infringing equivalent. If (a), (b), or (c) above are not reasonably practicable, either party may, at its option, terminate the relevant Addendum, in which case ESO will refund any pre-paid Fees on a pro-rata basis for such Addendum. Notwithstanding the foregoing, ESO shall have no obligation hereunder for any claim resulting or arising from (x) Customer’s breach of this Agreement; (y) modifications made to the Software not performed or provided by or on behalf of ESO or (z) the combination, operation or use by Customer (and/or anyone acting on Customer’s behalf) of the Software in connection with any other product or service (the combination or joint use of which causes the alleged infringement). This Section 11 states ESO’s sole obligation and liability, and Customer’s sole remedy, for potential or actual intellectual property infringement by the Software.

IP Infringement. Subject to the limitations in Xxxxxxx 00, XXX shall defend and indemnify and defend Customer from any damages, costs, liabilities, expenses (including reasonable attorney’s fees) (“Damages”) actually incurred or finally adjudicated as to any third-party claim or action alleging that the Software delivered pursuant to this Agreement infringe or misappropriate any third party’s patent, copyright, trade secret, or other intellectual property rights enforceable in the applicable jurisdiction (each, an “Indemnified Claim”). If Customer makes an Indemnified Claim under this Section or if ESO determines that an Indemnified Claim may occur, ESO shall at its option: (a) obtain a right for Customer to continue using such Software; (b) modify such Software to make it a non-infringing equivalent or (c) replace such Software with a non-infringing equivalent. If (a), (b), or (c) above are not reasonably practicable, either party may, at its option, terminate the relevant Addendum, in which case ESO will refund any pre-paid Fees on a pro-rata basis for such Addendum. Notwithstanding the foregoing, ESO shall have no obligation hereunder for any claim resulting or arising from (x) Customer’s breach of this Agreement; (y) modifications made to the Software not performed or provided by or on behalf of ESO or (z) the combination, operation or use by Customer (and/or anyone acting on Customer’s behalf) of the Software in connection with any other product or service (the combination or joint use of which causes the alleged infringement). This Section 11 states ESO’s sole obligation and liability, and Customer’s sole remedy, for potential or actual intellectual property infringement by the Software.

IP Infringement. Subject to the limitations in Xxxxxxx 00, XXX shall defend and indemnify and defend Customer from any damages, costs, liabilities, expenses (including reasonable attorney’s fees) (“DamagesDamages ”) actually incurred or finally adjudicated as to any third-party claim or action alleging that the Software delivered pursuant to this Agreement infringe or misappropriate any third party’s patent, copyright, trade secret, or other intellectual property rights enforceable in the applicable jurisdiction (each, an “Indemnified ClaimClaim ”). If Customer makes an Indemnified Claim under this Section or if ESO determines that an Indemnified Claim may occur, ESO shall at its option: (a) obtain a right for Customer to continue using such Software; (b) modify such Software to make it a non-infringing equivalent or (c) replace such Software with a non-infringing equivalent. If (a), (b), or (c) above are not reasonably practicable, either party may, at its option, terminate the relevant AddendumSoftware Schedule, in which case ESO will refund any pre-paid Fees on a pro-rata basis for such AddendumSoftware Schedule. Notwithstanding the foregoing, ESO shall have no obligation hereunder for any claim resulting or arising from (x) Customer’s breach of this Agreement; (y) modifications made to the Software that were not performed or provided by or on behalf of ESO or (z) the combination, operation or use by Customer (and/or anyone acting on Customer’s behalf) of the Software in connection with any other product or service (the combination or joint use of which causes the alleged infringement). This Section 11 states ESO’s sole obligation and liability, and Customer’s sole remedy, for potential or actual intellectual property infringement by the Software.

IP Infringement. Subject to the limitations in Xxxxxxx 00Section 12, XXX ESO shall defend and indemnify and defend Customer from any damages, costs, liabilities, expenses (including reasonable attorney’s fees) (“Damages”) actually incurred or finally adjudicated as to any third-third- party claim or action alleging that the Software delivered pursuant to this Agreement infringe or misappropriate any third party’s patent, copyright, trade secret, or other intellectual property rights enforceable in the applicable jurisdiction (each, an “Indemnified Claim”). If Customer makes an Indemnified Claim under this Section or if ESO determines that an Indemnified Claim may occur, ESO shall may at its option: (a) obtain a right for Customer to continue using such Software; (b) modify such Software to make it a non-infringing equivalent or (c) replace such Software with a non-infringing equivalent. If (a), (b), or (c) above are not reasonably practicable, either party may, at its option, terminate the relevant AddendumOrder, in which case ESO will refund any pre-paid Fees on a pro-rata basis for such AddendumOrder. Notwithstanding the foregoing, ESO shall have no obligation hereunder for any claim resulting or arising from (x) Customer’s breach of this Agreement; (y) modifications made to the Software not performed or provided by or on behalf of ESO or (z) the combination, operation or use by Customer (and/or anyone acting on Customer’s behalf) of the Software in connection with any other product or service (the combination or joint use of which causes the alleged infringement). This Section 11 states ESO’s sole obligation and liability, and Customer’s sole remedy, for potential or actual intellectual property infringement by the Software.