Common use of Third Party Intellectual Property Claims Clause in Contracts

Third Party Intellectual Property Claims. 10.1.1. The Managed Service Provider shall defend the End User against claims brought against the End User in the Territory to the extent that such claim: (i) is brought by a third-party owner of the intellectual property giving rise to the claim; and (ii) alleges that the End User’s Use of the Software in accordance with the terms and conditions of this Agreement constitutes a direct infringement or misappropriation of a patent claim(s) or copyright. 10.1.2. The Managed Service Provider shall pay damages finally awarded against the End User (or the amount of any settlement the Managed Service Provider enters into) with respect to such claim. The Managed Service Provider’s obligations under this clause 10.1.1 and clause 10.1.2 are conditioned upon: 10.1.2.1. the End User notifying the Managed Service Provider in writing of any such alleged claim without undue delay; and 10.1.2.2. the End User authorizing the Managed Service Provider and/or the Licensor to have sole control over the defence or settlement of any such claim; and 10.1.2.3. the End User cooperating fully in the defence of such claim and providing the Managed Service Provider with all relevant information and reasonable support; and 10.1.2.4. the End User not undertaking any action in response to any infringement, or alleged infringement, of the Software that is prejudicial to the rights of the Licensor and/or the Managed Service Provider. 10.1.3. The Managed Service Provider and/or the Licensor expressly reserve the right to cease such defence of any claim(s) in the event that the Software is no longer alleged to infringe or misappropriate or is held not to infringe or misappropriate the third party’s rights. 10.1.4. The Managed Service Provider shall have no obligation under clause 10.1 if the claim results from (i) Software or Documentation that has been altered or Modified by anyone other than the Licensor; or (ii) failure to use a New Release promptly provided by the Licensor and/or the Managed Service Provider if such infringement or misappropriation could have been avoided by use of the New Release; or (iii) unlicensed activities by the End User; or (iv) failure to Use the Software in accordance with the terms of this Agreement. Further, the Managed Service Provider shall have no obligation under clause 10.1 for a claim that could have been avoided if the End User had not used the Software or the Licensed Materials in combination or conjunction with any software, data or systems not provided by the Licensor or stipulated in the Documentation. 10.1.5. The Managed Service Provider will not indemnify End User for any infringement claim based on: (i) a patent that End User was aware of prior to the effective date of this Agreement; or (ii) the End User’s actions prior to the effective date of this Agreement. 10.1.6. If an infringement or misappropriation of the intellectual property rights of a third party by the Software in accordance with clause 10.1 above is alleged or, in the reasonable opinion of the Managed Service Provider, an infringement or misappropriate of the intellectual property rights of a third party is likely to occur or be alleged, the Managed Service Provider may, at its discretion – 10.1.6.1. procure for the End User the continued right to Use the Software at no additional cost to the End User; or 10.1.6.2. modify the Software or substitute alternative substantially equivalent non-infringing programs and supporting Documentation for the Software; or 10.1.6.3. if none of the foregoing alternatives can be achieved at a reasonable cost, Managed Service Provider may terminate the Agreement and refund the prices paid by the End User less an appropriate amount covering the period of actual use of the Software by the End User.

Third Party Intellectual Property Claims. 10.1.1. The Managed Service Provider shall defend the End User against claims brought against the End User in the Territory to the extent that such claim: (i) is brought by a third-third party owner of the intellectual property giving rise to the claim; and (ii) alleges that the End User’s Use of the Software in accordance with the terms and conditions of this Agreement constitutes a direct infringement or misappropriation of a patent claim(s) ), copyright, trademark or copyrighttrade secrets rights. 10.1.2. The Managed Service Provider shall pay damages finally awarded against the End User (or the amount of any settlement the Managed Service Provider enters into) with respect to such claim. The Managed Service Provider’s obligations under this clause 10.1.1 and this clause 10.1.2 are conditioned upon: 10.1.2.1. the End User notifying the Managed Service Provider in writing of any such alleged claim without undue delay; and 10.1.2.2. the End User authorizing the Managed Service Provider and/or the Licensor to have sole control over the defence or settlement of any such claim; and 10.1.2.3. the End User cooperating fully in the defence of such claim and providing the Managed Service Provider with all relevant information and reasonable support; and 10.1.2.4. the End User not undertaking any action in response to any infringement, or alleged infringement, of the Software that is prejudicial to the rights of the Licensor and/or the Managed Service Provider. 10.1.3. The Managed Service Provider and/or the Licensor expressly reserve the right to cease such defence of any claim(s) in the event that the Software is no longer alleged to infringe or misappropriate or is held not to infringe or misappropriate the third party’s rights. 10.1.4. The Managed Service Provider shall have no obligation under clause 10.1 if the claim results from (i) Software or Documentation that has been altered or Modified by anyone other than the Licensor; or (ii) failure to use a New Release promptly provided by the Licensor and/or the Managed Service Provider if such infringement or misappropriation could have been avoided by use of the New Release; or (iii) unlicensed activities by the End User; or (iv) failure to Use the Software in accordance with the terms of this Agreement. Further, the Managed Service Provider shall have no obligation under clause 10.1 for a claim that could have been avoided if the End User had not used the Software or the Licensed Materials in combination or conjunction with any software, data or systems not provided by the Licensor or stipulated in the Documentation. 10.1.5. The Managed Service Provider will not indemnify End User for any infringement claim based on: (i) a patent that End User was aware of prior to the effective date of this Agreement; or (ii) the End User’s actions prior to the effective date of this Agreement. 10.1.6. If an infringement or misappropriation of the intellectual property rights of a third party by the Software in accordance with clause 10.1 above is alleged or, in the reasonable opinion of the Managed Service Provider, an infringement or misappropriate of the intellectual property rights of a third party is likely to occur or be alleged, the Managed Service Provider may, at its discretion – 10.1.6.1. procure for the End User the continued right to Use the Software at no additional cost to the End User; or 10.1.6.2. modify the Software or substitute alternative substantially equivalent non-non- infringing programs and supporting Documentation for the Software; or 10.1.6.3. if none of the foregoing alternatives can be achieved at a reasonable cost, Managed Service Provider may terminate the Agreement and refund the prices Fees paid by the End User less an appropriate amount covering the period of actual use of the Software by the End User.

Third Party Intellectual Property Claims. 10.1.1. The Managed Service Provider shall defend the End User against claims brought against the End User in the Territory to the extent that such claim: (i) is brought by a third-third party owner of the intellectual property giving rise to the claim; and (ii) alleges that the End User’s Use of the Software in accordance with the terms and conditions of this Agreement constitutes a direct infringement or misappropriation of a U.S.A. patent claim(s) ), copyright, trademark or copyrighttrade secrets rights. 10.1.2. The Managed Service Provider shall pay damages finally awarded against the End User (or the amount of any settlement the Managed Service Provider enters into) with respect to such claim. The Managed Service Provider’s obligations under this clause 10.1.1 and this clause 10.1.2 are conditioned upon: 10.1.2.1. the End User notifying the Managed Service Provider in writing of any such alleged claim without undue delay; and 10.1.2.2. the End User authorizing the Managed Service Provider and/or the Licensor to have sole control over the defence or settlement of any such claim; and 10.1.2.3. the End User cooperating fully in the defence of such claim and providing the Managed Service Provider with all relevant information and reasonable support; and 10.1.2.4. the End User not undertaking any action in response to any infringement, or alleged infringement, of the Software that is prejudicial to the rights of the Licensor and/or the Managed Service Provider. 10.1.3. The Managed Service Provider and/or the Licensor expressly reserve the right to cease such defence of any claim(s) in the event that the Software is no longer alleged to infringe or misappropriate or is held not to infringe or misappropriate the third party’s rights. 10.1.4. The Managed Service Provider shall have no obligation under clause 10.1 if the claim results from (i) Software or Documentation that has been altered or Modified by anyone other than the Licensor; or (ii) failure to use a New Release promptly provided by the Licensor and/or the Managed Service Provider if such infringement or misappropriation could have been avoided by use of the New Release; or (iii) unlicensed activities by the End User; or (iv) failure to Use the Software in accordance with the terms of this Agreement; or (v) instruction, designs, specifications or material not furnished by the Managed Service Provider. Further, the Managed Service Provider shall have no obligation under clause 10.1 for a claim that could have been avoided if the End User had not used the Software or the Licensed Materials in combination or conjunction with any software, data or systems not provided by the Licensor or stipulated in the Documentation. 10.1.5. The Managed Service Provider will not indemnify End User for any infringement claim based on: (i) a patent that End User was aware of prior to the effective date of this Agreement; or (ii) the End User’s actions prior to the effective date of this Agreement. 10.1.6. If Use of the Software is prevented by injunction or court order due to an infringement or misappropriation of the intellectual property rights of a third party by the Software as contemplated in accordance with clause 10.1 above is alleged orabove, or in the reasonable opinion of the Managed Service Provider, an infringement or misappropriate of the intellectual property rights of a third party is likely to occur or be alleged, the Managed Service Provider may, at its discretion – 10.1.6.1. procure for the End User the continued right to Use the Software at no additional cost to the End User; or 10.1.6.2. modify the Software or substitute alternative substantially equivalent non-infringing programs and supporting Documentation for the Software; or 10.1.6.3. if none of the foregoing alternatives can be achieved at a reasonable cost, Managed Service Provider may terminate the Agreement and refund the prices Fees paid by the End User less an appropriate amount covering the period of actual use of the Software by the End User.

Third Party Intellectual Property Claims. 10.1.1. The Managed Service Provider shall defend the End User against claims brought against the End User in the Territory to the extent that such claim: (i) is brought by a third-third party owner of the intellectual property giving rise to the claim; and (ii) alleges that the End User’s Use of the Software in accordance with the terms and conditions of this Agreement constitutes a direct infringement or misappropriation of a patent claim(s) ), copyright, trademark or copyrighttrade secrets rights. 10.1.2. The Managed Service Provider shall pay damages finally awarded against the End User (or the amount of any settlement the Managed Service Provider enters into) with respect to such claim. The Managed Service Provider’s obligations under this clause 10.1.1 and this clause 10.1.2 are conditioned upon: 10.1.2.1. the End User notifying the Managed Service Provider in writing of any such alleged claim without undue delay; and 10.1.2.2. the End User authorizing the Managed Service Provider and/or the Licensor to have sole control over the defence or settlement of any such claim; and 10.1.2.3. the End User cooperating fully in the defence of such claim and providing the Managed Service Provider with all relevant information and reasonable support; and 10.1.2.4. the End User not undertaking any action in response to any infringement, or alleged infringement, of the Software that is prejudicial to the rights of the Licensor and/or the Managed Service Provider. 10.1.3. The Managed Service Provider and/or the Licensor expressly reserve the right to cease such defence of any claim(s) in the event that the Software is no longer alleged to infringe or misappropriate or is held not to infringe or misappropriate the third party’s rights. 10.1.4. The Managed Service Provider shall have no obligation under clause 10.1 if the claim results from (i) Software or Documentation that has been altered or Modified by anyone other than the Licensor; or (ii) failure to use a New Release promptly provided by the Licensor and/or the Managed Service Provider if such infringement or misappropriation could have been avoided by use of the New Release; or (iii) unlicensed activities by the End User; or (iv) failure to Use the Software in accordance with the terms of this Agreement. Further, the Managed Service Provider shall have no obligation under clause 10.1 for a claim that could have been avoided if the End User had not used the Software or the Licensed Materials in combination or conjunction with any software, data or systems not provided by the Licensor or stipulated in the Documentation. 10.1.5. The Managed Service Provider will not indemnify End User for any infringement claim based on: (i) a patent that End User was aware of prior to the effective date of this Agreement; or (ii) the End User’s actions prior to the effective date of this Agreement. 10.1.6. If an infringement or misappropriation of the intellectual property rights of a third party by the Software in accordance with clause 10.1 above is alleged or, in the reasonable opinion of the Managed Service Provider, an infringement or misappropriate of the intellectual property rights of a third party is likely to occur or be alleged, the Managed Service Provider may, at its discretion – 10.1.6.1. procure for the End User the continued right to Use the Software at no additional cost to the End User; or 10.1.6.2. modify the Software or substitute alternative substantially equivalent non-infringing programs and supporting Documentation for the Software; or 10.1.6.3. if none of the foregoing alternatives can be achieved at a reasonable cost, Managed Service Provider may terminate the Agreement and refund the prices Fees paid by the End User less an appropriate amount covering the period of actual use of the Software by the End User.