By Mercatus Sample Clauses

By Mercatus. Mercatus will defend at its expense any suit brought against Customer, its Affiliates, and their respective shareholders, directors, officers, partners, members, managers, employees and agents, and will pay any settlement Mercatus makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Platform infringes, misappropriates or violates any third party intellectual property rights. If any portion of the Platform becomes, or in Mercatus’ opinion is likely to become, the subject of a claim of infringement, Mercatus may, at Mercatus’ option: (a) procure for Customer the right to continue using the Platform; (b) replace the Platform with non-infringing software or services which do not materially impair the functionality of the Platform; (c) modify the Platform so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid by Customer to Mercatus for the remainder of the Term then in effect, and upon such termination, Customer will immediately cease all use of the Platform. Notwithstanding the foregoing, Mercatus shall have no obligation under this Section 8(a) or otherwise with respect to any infringement claim based upon (x) any use of the Platform not in accordance with this Agreement or as specified by Mercatus in writing to Customer; (y) any use of the Platform in combination with other products, equipment, software or data not supplied or approved by Mercatus or its agents; or (z) any modification of the Platform by any person other than Mercatus or its authorized agents (collectively, “Exclusions”). This Section states Mercatus’ entire liability and Customer’s sole and exclusive remedy (subject to its termination rights) for the claims and actions described herein. • By Customer. Customer will defend at its expense any suit brought against Mercatus, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion; (b) Customer’s (or its user’s) unauthorized or unlawful use of the Platform, except to the extent the claim is subject to indemnification under Section 8(a) above or caused by Mercatus’s negligence or willful misconduct or breach of its obligations hereunder or the applicable Statement of Work or Service Order; (c) any breach of Customer’s representation and warranties hereunder; and (d) Customer Data, e...
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