Common use of Indemnification By Publisher Clause in Contracts

Indemnification By Publisher. 8.2.1. Subject to the other terms and conditions set forth herein, Publisher agrees to defend Customer, its employees, officers, directors and Affiliates at Publisher’s sole cost and indemnify Customer (by paying for damages finally awarded against Customer or any amounts payable in any settlement entered into in compliance with this Agreement) from and against any claims, demands, actions or proceedings by any unaffiliated third party alleging that the Software as provided hereunder infringes or violates such third party’s United States patent, copyright or trade secret rights; provided that: (i) Publisher is notified promptly in writing of the claim; (ii) Publisher controls the defense, settlement and approval of the claim; and (iii) Customer reasonably cooperates, assists and gives all necessary authority to Publisher and reasonably required information in connection with the defense or settlement of the claim. 8.2.2. Publisher’s indemnity obligations under subsection 8.2.1 hereof will not apply if and to the extent that they arise from or relate to: (i) the use of the Software in any form or substance other than as provided by Publisher hereunder and as required to be used by Customer hereunder; (ii) use of a superseded version of some or all of the Software if the infringement or violation would have been avoided or mitigated by the use of a subsequent version (and/or Update) of the Software that is provided to Customer; (iii) the modification of the Software by Customer or any third party not authorized in writing by Publisher to do so; (iv) the use of the Software in combination with any intellectual property, services, reports, documentation, hardware, software, data or technology not supplied by Publisher; or (v) any data or information, or other intellectual property supplied by Customer, an Authorized User or any third party. 8.2.3. If the Software becomes, or in Publisher’s opinion, is likely to become, the subject of a third party claim covered by Publisher’s indemnification obligations under subsection 8.2.1, then Publisher may, in its sole discretion and at its sole cost and expense: (i) procure for Customer the right to continue using such Software; (ii) modify the infringing portion of the Software so as to render it non-infringing but still appropriate for its intended use under this Agreement; or (iii) replace the infringing portion of the Software with non-infringing items with substantially similar functionality. If Publisher reasonably determines that none of the foregoing is commercially practicable, then Publisher may elect to terminate this Agreement and grant Customer a refund of the Fees paid for the affected Software less an allocation for use made by Customer prior to the termination. 8.2.4. This Section 8.2 states Publisher’s entire liability and the sole and exclusive remedy of Customer, its employees, officers, directors and Affiliates and any Authorized User with respect to any actual or claimed infringement or other violation of any third party’s intellectual property rights.