Common use of NetBrain’s Indemnification Obligations Clause in Contracts

NetBrain’s Indemnification Obligations. Subject to the limitations set forth in Section 8.2, NetBrain agrees, at its own expense, to defend and indemnify Customer, its Affiliates, and their respective directors, officers, employees, and agents for, and at NetBrain’s option to settle, in its sole discretion, any and all Claims brought against Customer alleging that the Programs, as used within the scope of this Agreement, infringe any valid and enforceable patent of the United States or European Union. NetBrain has the right, in its sole discretion, to: (a) procure for Customer the right to use the allegedly infringing Programs as provided herein; (b) replace the allegedly infringing Programs with non-infringing, functionally equivalent products; (c) suitably modify the allegedly infringing Programs to eliminate the Claims of infringement, with no material loss of functionality; or (d) in the event NetBrain determines, in its sole discretion, that (a), (b), and/or (c) are not possible or commercially reasonable, NetBrain may terminate the License and accept return of the infringing Programs and refund to Customer any remaining prepaid Maintenance and Support Fee therefor. Notwithstanding the foregoing, NetBrain assumes no liability for infringement Claims arising from: (v) combination of the Programs with any other products not provided, or authorized, by NetBrain; (w) any modifications to the Programs by any person other than, or authorized by, NetBrain; (x) any continued use of the version of the Programs in Customer’s possession following notice by NetBrain that such Programs are the subject of a third party Claim of infringement; (y) use of any version of the Programs other than the most recent two versions that NetBrain has made available to Customer, or without additional cost to Customer, if the infringement would have been avoided by using one of the two most recent versions; or (z) the Customer’s specific business use of the Programs which is the basis of the Claim, where the Programs used for a different business use would not be the basis of the Claim. THE FOREGOING PROVISIONS OF THIS SECTION 7.2 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF NETBRAIN, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE PROGRAMS.

NetBrain’s Indemnification Obligations. Subject to the limitations set forth in Section 8.2, NetBrain agrees, at its own expense, to defend and indemnify Customer, its Affiliates, and their respective directors, officers, employees, and agents for, and at NetBrain’s option to settle, in its sole discretion, any and all Claims brought against Customer alleging that the Programs, as used within the scope of this Agreement, infringe any valid and enforceable patent of the United States or European Union. NetBrain has the right, in its sole discretion, to: (a) procure for Customer the right to use the allegedly infringing Programs as provided herein; (b) replace the allegedly infringing Programs with non-infringing, functionally equivalent products; (c) suitably modify the allegedly infringing Programs to eliminate the Claims of infringement, with no material loss of functionality; or (d) in the event NetBrain determines, in its sole discretion, that (a), (b), and/or (c) are not possible or commercially reasonable, NetBrain may terminate the License and accept return of the infringing Programs and refund to Customer any remaining prepaid Maintenance and Support Subscription Fee therefor. Notwithstanding the foregoing, NetBrain assumes no liability for infringement Claims arising from: (v) combination of the Programs with any other products not provided, or authorized, by NetBrain; (w) any modifications to the Programs by any person other than, or authorized by, NetBrain; (x) any continued use of the version of the Programs in Customer’s possession following notice by NetBrain that such Programs are the subject of a third party Claim of infringement; (y) use of any version of the Programs other than the most recent two versions that NetBrain has made available to Customer, or without additional cost to Customer, if the infringement would have been avoided by using one of the two most recent versions; or (z) the Customer’s specific business use of the Programs which is the basis of the Claim, where the Programs used for a different business use would not be the basis of the Claim. THE FOREGOING PROVISIONS OF THIS SECTION 7.2 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF NETBRAIN, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE PROGRAMS.

NetBrain’s Indemnification Obligations. Subject to the limitations set forth in Section 8.29, NetBrain agrees, at its own expense, to defend and indemnify Customer, its Affiliates, and their respective directors, officers, employees, and agents for, and at NetBrain’s option to settle, in its sole discretion, any and all Claims brought against Customer alleging that the ProgramsDeliverables, as used within the scope of this Agreement, infringe any valid and enforceable patent of the United States or European Union. NetBrain has the right, in its sole discretion, to: (a) procure for Customer the right to use the allegedly infringing Programs Deliverables as provided herein; (b) replace the allegedly infringing Programs Deliverables with non-infringing, functionally equivalent products; (c) suitably modify the allegedly infringing Programs Deliverables to eliminate the Claims of infringement, with no material loss of functionality; or (d) in the event NetBrain determines, in its sole discretion, that (a), (b), and/or (c) are not possible or commercially reasonable, NetBrain may terminate the License and license hereunder to the Deliverables, accept return of the infringing Programs Deliverables and refund to Customer any remaining prepaid Maintenance and Support Fee the Professional Services fee paid therefor. Notwithstanding the foregoing, NetBrain assumes no liability for infringement Claims arising from: (vx) combination of the Programs Deliverables with any other products not provided, or authorized, by NetBrain; (wy) any modifications to the Programs Deliverables by any person other than, or authorized by, NetBrain; (x) any continued use of the version of the Programs in Customer’s possession following notice by NetBrain that such Programs are the subject of a third party Claim of infringement; (y) use of any version of the Programs other than the most recent two versions that NetBrain has made available to Customer, or without additional cost to Customer, if the infringement would have been avoided by using one of the two most recent versions; or (z) the Customer’s specific business use of the Programs Deliverables which is the basis of the Claim, where the Programs Deliverables used for a different business use would not be the basis of the Claim. THE FOREGOING PROVISIONS OF THIS SECTION 7.2 8.2 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF NETBRAIN, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE PROGRAMSDELIVERABLES.