Common use of BY MOOGSOFT Clause in Contracts

BY MOOGSOFT. Moogsoft agrees to defend, at its expense, End User against any third party claim to the extent such claim alleges that a Product Offering infringes or misappropriates any patent, copyright, trademark or trade secret of a third party, and Moogsoft shall pay all costs and damages finally awarded against End User by a court of competent jurisdiction as a result of any such claim. In the event that the use of a Product Offering is, or in Moogsoft’s sole opinion is likely to become, subject to such a claim, Moogsoft, at its option and expense, may (a) replace the applicable Product Offering with functionally equivalent non-infringing technology, (b) obtain a license for End User’s continued use of the applicable Product Offering, or (c) terminate the license and provide a pro-rata refund of the Product Offering license fees that have been paid in advance for the remainder of the License Term for the applicable Product Offering (beginning on the date of termination). The foregoing indemnification obligation of Moogsoft will not apply: (i) if the Product Offering is modified by End User; (ii) if the Product Offering is combined with other non-Moogsoft products, applications, or processes, but solely to the extent the alleged infringement is caused by such combination; (iii) to any unauthorized use of the Product Offering; or (iv) to any Product Offering licensed for Evaluation Use. The foregoing shall be End User’s sole remedy with respect to any claim of infringement of third party intellectual property rights.

BY MOOGSOFT. Moogsoft agrees to defend, at its expense, End User against any third party claim to the extent such claim alleges that a Product Offering infringes or misappropriates any patent, copyright, trademark or trade secret of a third party, and Moogsoft shall pay all costs and damages finally awarded against End User by a court of competent jurisdiction as a result of any such claim. In the event that the use of a Product Offering is, or in Moogsoft’s sole opinion is likely to become, subject to such a claim, Moogsoft, at its option and expense, may (a) replace the applicable Product Offering with functionally equivalent non-infringing technology, (b) obtain a license licence for End User’s continued use of the applicable Product Offering, or (c) terminate the license licence and provide a pro-rata refund of the Product Offering license licence fees that have been paid in advance for the remainder of the License Licence Term for the applicable Product Offering (beginning on the date of termination). The foregoing indemnification obligation of Moogsoft will not apply: (i) if the Product Offering is modified by End User; (ii) if the Product Offering is combined with other non-Moogsoft products, applications, or processes, but solely to the extent the alleged infringement is caused by such combination; (iii) to any unauthorized unauthorised use of the Product Offering; or (iv) to any Product Offering licensed for Evaluation Use. .. The foregoing shall be End User’s sole remedy with respect to any claim of infringement of third party intellectual property rightsIntellectual Property Rights.

BY MOOGSOFT. Moogsoft agrees to defend, at its expense, End User against any third party claim to the extent such claim alleges that a Product Offering infringes or misappropriates any patent, copyright, trademark or trade secret of a third party, and Moogsoft shall pay all costs and damages finally awarded against End User by a court of competent jurisdiction as a result of any such claim. In the event that the use of a Product Offering is, or in Moogsoft’s sole opinion is likely to become, subject to such a claim, Moogsoft, at its option and expense, may (a) replace the applicable Product Offering with functionally equivalent non-infringing technology, (b) obtain a license licence for End User’s continued use of the applicable Product Offering, or (c) terminate the license licence and provide a pro-rata refund of the Product Offering license licence fees that have been paid in advance for the remainder of the License Licence Term for the applicable Product Offering (beginning on the date of termination). The foregoing indemnification obligation of Moogsoft will not apply: (i) if the Product Offering is modified by End User; (ii) if the Product Offering is combined with other non-Moogsoft products, applications, or processes, but solely to the extent the alleged infringement is caused by such combination; (iii) to any unauthorized unauthorised use of the Product Offering; or (iv) to any Product Offering licensed for Evaluation Use. The foregoing shall be End User’s sole remedy with respect to any claim of infringement of third party intellectual property rightsIntellectual Property Rights.

BY MOOGSOFT. Moogsoft agrees to defend, at its expense, End User against any third party claim to the extent such claim alleges that a Product Offering infringes or misappropriates any patent, copyright, trademark or trade secret of a third party, and Moogsoft shall pay all costs and damages finally awarded against End User by a court of competent jurisdiction as a result of any such claim. In the event that the use of a Product Offering is, or in Moogsoft’s sole opinion is likely to become, subject to such a claim, Moogsoft, at its option and expense, may (a) replace the applicable Product Offering with functionally equivalent non-non- infringing technology, (b) obtain a license licence for End User’s continued use of the applicable Product Offering, or (c) terminate the license licence and provide a pro-rata refund of the Product Offering license licence fees that have been paid in advance for the remainder of the License Licence Term for the applicable Product Offering (beginning on the date of termination). The foregoing indemnification obligation of Moogsoft will not apply: (i) if the Product Offering is modified by End User; (ii) if the Product Offering is combined with other non-Moogsoft products, applications, or processes, but solely to the extent the alleged infringement is caused by such combination; (iii) to any unauthorized unauthorised use of the Product Offering; or (iv) to any Product Offering licensed for Evaluation Use. .. The foregoing shall be End User’s sole remedy with respect to any claim of infringement of third party intellectual property rightsIntellectual Property Rights.

BY MOOGSOFT. Moogsoft Xxxxxxxx agrees to defend, at its expense, End User against any third party claim to the extent such claim alleges that a Product Offering infringes or misappropriates any patent, copyright, trademark or trade secret of a third party, and Moogsoft shall pay all costs and damages finally awarded against End User by a court of competent jurisdiction as a result of any such claim. In the event that the use of a Product Offering is, or in Moogsoft’s sole opinion is likely to become, subject to such a claim, Moogsoft, at its option and expense, may (a) replace the applicable Product Offering with functionally equivalent non-non- infringing technology, (b) obtain a license licence for End User’s continued use of the applicable Product Offering, or (c) terminate the license licence and provide a pro-rata refund of the Product Offering license licence fees that have been paid in advance for the remainder of the License Licence Term for the applicable Product Offering (beginning on the date of termination). The foregoing indemnification obligation of Moogsoft will not apply: (i) if the Product Offering is modified by End User; (ii) if the Product Offering is combined with other non-Moogsoft products, applications, or processes, but solely to the extent the alleged infringement is caused by such combination; (iii) to any unauthorized unauthorised use of the Product Offering; or (iv) to any Product Offering licensed for Evaluation Use. .. The foregoing shall be End User’s sole remedy with respect to any claim of infringement of third party intellectual property rightsIntellectual Property Rights.

BY MOOGSOFT. Moogsoft agrees to defend, at its expense, End User against any third party claim to the extent such claim alleges that a Product Offering infringes or misappropriates any patent, copyright, trademark or trade secret of a third party, and Moogsoft shall pay all costs and damages finally awarded against End User by a court of competent jurisdiction as a result of any such claim. In the event that the use of a Product Offering is, or in Moogsoft’s sole opinion is likely to become, subject to such a claim, Moogsoft, at its option and expense, may (a) replace the applicable Product Offering with functionally equivalent non-non- infringing technology, (b) obtain a license for End User’s continued use of the applicable Product Offering, or (c) terminate the license and provide a pro-rata refund of the Product Offering license fees that have been paid in advance for the remainder of the License Term for the applicable Product Offering (beginning on the date of termination). The foregoing indemnification obligation of Moogsoft will not apply: (i) if the Product Offering is modified by End User; (ii) if the Product Offering is combined with other non-Moogsoft products, applications, or processes, but solely to the extent the alleged infringement is caused by such combination; (iii) to any unauthorized use of the Product Offering; or (iv) to any Product Offering licensed for Evaluation Use. The foregoing shall be End User’s sole remedy with respect to any claim of infringement of third party intellectual property rights.