Common use of INDEMINIFICATION Clause in Contracts

INDEMINIFICATION. Pavilion will defend at its own expense any action against End User brought by a third party to the extent that the action is based upon a claim that the Product infringes any patents, copyrights, trademarks or trade secrets, and Pavilion will pay those damages finally awarded against End User in any such action that are specificallyattributable to such claim or those damages agreed to by Pavilion in a monetary settlement of such action. The foregoing obligation is conditioned on: (i) End User notifying Pavilion promptly in writing of such action, (ii) End User giving Pavilion sole control of the defense thereof and any related settlement negotiations, and (iii) End User cooperating with Pavilion and, at Pavilion’s request and expense, assisting in such defense. If any Software becomes, or in Pavilion opinion is likely to become, the subject of an infringement claim, Pavilion may, at its option and expense, either (a) procure for End User the right to continue using the Software, (b) replace or modify the Software so that it becomes non-infringing, or (c) accept return of (1) the Product incorporating the affected Software and effect a refund to End User the fees actually paid by End User for the affected Products, reduced for depreciation, which is calculated on a straight-line basis over a three-year useful life, in which case End User’s right to use such affected Software will be terminated. Notwithstanding the foregoing, Pavilion will have no obligation under this Section 6 or otherwise with respect to any infringement claim based upon (i) any use of the Software not in accordance with these Terms or the applicable Documentation or for purposes not intended by Pavilion, (ii) any use of Software in combination with other products, equipment, software, or data not supplied by Pavilion, or (iii) any modification or alteration of the Software or Product by any person other than Pavilion or its authorizedrepresentatives.THIS SECTION 6 STATES PAVILION DATA’S ENTIRE LIABILITY, AND END USER’S SOLE AND EXCLUSIVE REMEDY, FOR INFRINGEMENT CLAIMS AND ACTIONS.