Common use of Supplier’s Intellectual Property Indemnity Clause in Contracts

Supplier’s Intellectual Property Indemnity. Supplier will indemnify and defend the Embarq Indemnitees from and against all third party claims, damages, losses, liabilities, costs, expenses and reasonable legal fees arising out of any third party claim that the Services or Deliverables and any resulting use or sale of any Services or Deliverables constitutes an infringement of any third party patent, trademark, or copyright, or the misappropriation of any trade secret. In addition, if Embarq’s right to sell or use the Services or Deliverables is enjoined, Supplier will, at Supplier’s expense, in the following order as is commercially reasonable: (a.) procure for Embarq and its customers the right to use the Services and Deliverables; (b.) replace the Services and Deliverables with equivalent non-infringing Services and Deliverables; (c.) modify the Services and Deliverables so they become non-infringing; or (d.) remove the Services and Deliverables and refund the price paid by Embarq for the Services and Deliverables, including incidental charges, such as transportation, installation and removal. Supplier shall have no liability or obligation to Embarq hereunder with respect to any claim based upon (i) any use of the Deliverables not materially in accordance with this Agreement to the extent that compliance with this Agreement would have prevented the claim, (ii) use of any Deliverables in an application or environment or on a platform or with devices for which it was not designed or contemplated, (iii) alterations, combinations or enhancements of the Deliverables not created or approved by Supplier, (iv) that portion of any Deliverables which implements requirements specified in writing by Embarq, or (v) Embarq’s continuing allegedly infringing activity after being notified thereof or its continuing use of any version of the Deliverables after being provided modifications that would have avoided the alleged infringement. This Section 14.3 sets forth Supplier’s sole obligation and Embarq’s sole remedy against Supplier for any intellectual property infringement action.

Supplier’s Intellectual Property Indemnity. Supplier will indemnify and defend the Embarq Indemnitees from and against all third party claims, damages, losses, liabilities, costs, expenses and reasonable legal fees arising out of any third party claim that the Services or Deliverables and any resulting use or sale of any Services or Deliverables constitutes an infringement of any third party patent, trademark, or copyright, or the misappropriation of any trade secret. In addition, if Embarq’s right to sell or use the Services or Deliverables is enjoined, Supplier will, at Supplier’s expense, in the following order as is commercially reasonable: (a.) procure for Embarq and its customers the right to use the Services and Deliverables; (b.) replace the Services and Deliverables with equivalent non-infringing Services and Deliverables; (c.) modify the Services and Deliverables so they become non-infringing; or (d.) remove the Services and Deliverables and refund the price paid by Embarq for the Services and Deliverables, including incidental charges, such as transportation, installation and removal. Supplier shall have no liability or obligation to Embarq hereunder with respect to any claim based upon (i) any use of the Deliverables not materially in accordance with this Agreement to the extent that compliance with this Agreement would have prevented the claim, (ii) use of any Deliverables in an application or environment or on a platform or with devices for which it was not designed or contemplated, (iii) alterations, combinations or enhancements of the Deliverables not created or approved by Supplier, (iv) that portion of any Deliverables which implements requirements specified in writing by Embarq, or (v) Embarq’s continuing allegedly infringing activity after being notified thereof or its continuing use of any version of the Deliverables after being provided modifications that would have avoided the alleged infringement. This Section 14.3 sets forth Supplier’s sole obligation and EmbarqExxxxx’s sole remedy against Supplier for any intellectual property infringement action.