Common use of Shift Digital Infringement Indemnification Clause in Contracts

Shift Digital Infringement Indemnification. Shift Digital shall hold Dealer harmless from third party Claims that the Services infringe the United States patent or copyright of any third party, and will indemnify Dealer from any damages, reasonable attorney fees and costs finally awarded against Dealer as a result of such claim provided that Shift Digital is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over the defense and settlement thereof. Any settlement of such claim must be preapproved in writing by Shift Digital. The foregoing obligations do not apply with respect to portions or components of the Services (i) that are not supplied by Shift Digital or the Service Providers, (ii) that are made in whole or in part accordance with Dealer specifications, (iii) that are modified after delivery, (iv) that are combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Dealer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Dealer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Shift Digital to be infringing, Shift Digital may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Dealer a license to continue using the Services, or (c) terminate this Agreement and Dealer’s rights hereunder and provide Dealer a refund of any prepaid, unused fees for the applicable Services. The foregoing constitutes Dealer’s sole remedy and Shift Digital’s sole obligation with respect to infringement of intellectual property rights in connection with the Services.