Common use of Indemnification by Us Clause in Contracts

Indemnification by Us. We shall defend or settle at Our expense any third party claim brought against You alleging that the Service, when used as authorized under this Agreement, infringes such third-party’s copyright, patent or trademark and We shall indemnify and hold You harmless from and against any damages and costs awarded against You or agreed in settlement by Us (including reasonable attorneys’ fees) resulting from such claim, provided that You immediately notify Us of such claim, allow Us to control the defense, litigation or settlement of such claim, and cooperate with Us in the investigation, defense, and/or settlement of such claim. If any infringement claim with respect to Your access to, or use of, the Service may be or has been asserted, We shall, at Our option and expense, (a) procure the right to continue accessing and using the Service or (b) replace or modify the Service to eliminate the infringement while providing functionally equivalent performance. If neither of (a) and (b) above are commercially feasible as determined in Our sole discretion, We may terminate this Agreement and Your subscription and refund to You the pro-rata amount of any prepaid fees for Your remaining then- current Subscription Term. We have no indemnity obligation to You to the extent any infringement or misappropriation claim results from (i) a correction or modification to the Service not provided by or on behalf of Us, (ii) materials provided by You in connection with requested customizations or modifications of the Service, (iii) Your Content, or (iv) use, combination, or incorporation of the Service, or improvements thereto, with products or services not provided by Us. You acknowledge that the indemnification in this section states Your exclusive remedy and Our sole liability in connection with any claim of infringement.

Indemnification by Us. We shall will defend You against any claim, demand, suit or settle at Our expense any third party claim proceeding made or brought against You by a third party alleging that Your licensed use of the Service, when used as authorized under this Agreement, Service infringes or misappropriates such third-third party’s copyrightintellectual property rights (a “Claim Against You”), patent or trademark and We shall will indemnify and hold You harmless from and against any damages damages, attorney fees and costs finally awarded against You as a result of, or agreed in for amounts paid by You under a settlement approved by Us (including reasonable attorneys’ fees) resulting from such claimin writing of, a Claim Against You, provided that You immediately notify (a) promptly give Us written notice of such claimthe Claim Against You, allow (b) give Us to sole control of the defense, litigation or defense and settlement of such claimthe Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and cooperate with (c) give Us in the investigation, defense, and/or settlement of such claim. If any infringement claim with respect to Your access to, or use of, the Service may be or has been asserted, We shallall reasonable assistance, at Our option and expense, (a) procure the right to continue accessing and using the Service or (b) replace or modify the Service to eliminate the infringement while providing functionally equivalent performance. If neither of (a) and (b) above are commercially feasible as determined in Our sole discretion, We may terminate this Agreement and Your subscription and refund to You the pro-rata amount of any prepaid fees for Your remaining then- current Subscription Term. We have no indemnity obligation to You to the extent any receive information about an infringement or misappropriation claim results from related to a Service, We may in Our discretion and at no cost to You (i) a correction modify the Services so that they are no longer claimed to infringe or modification to the Service not provided by or on behalf of Usmisappropriate, without breaching Our warranties under “RevenueWell Warranties” above, (ii) materials provided by You obtain a license for Your continued use of that Service in connection accordance with requested customizations this Agreement, or modifications of the Service, (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-RevenueWell Application or (iv) use, combination, or incorporation Your use of the ServiceServices in violation of this Agreement, the Documentation or improvements thereto, with products or services not provided by Us. You acknowledge that the indemnification in this section states Your exclusive remedy and Our sole liability in connection with any claim of infringementapplicable Order Forms.

Indemnification by Us. We shall defend or settle at Our expense any third party claim brought against You alleging that the Service, when used as authorized under this Agreement, infringes such third-party’s copyright, patent or trademark and We shall indemnify and hold You harmless from and against any damages and costs awarded against You or agreed in settlement by Us (including reasonable attorneys’ fees) resulting from such claim, provided that You immediately notify Us of such claim, allow Us to control the defense, litigation or settlement of such claim, and cooperate with Us in the investigation, defense, and/or settlement of such claim. If any infringement claim with respect to Your access to, or use of, the Service may be or has been asserted, We shall, at Our option and expense, (a) procure the right to continue accessing and using the Service or (b) replace or modify the Service to eliminate the infringement while providing functionally equivalent performance. If neither of (a) and (b) above are commercially feasible as determined in Our sole discretion, We may terminate this Agreement and Your subscription and refund to You the pro-rata amount of any prepaid fees for Your remaining then- then-current Subscription Term. We have no indemnity obligation to You to the extent any infringement or misappropriation claim results from (i) a correction or modification to the Service not provided by or on behalf of Us, (ii) materials provided by You in connection with requested customizations or modifications of the Service, (iii) Your Content, or (iv) use, combination, or incorporation of the Service, or improvements thereto, with products or services not provided by Us. You acknowledge that the indemnification in this section states Your exclusive remedy and Our sole liability in connection with any claim of infringement.

Indemnification by Us. We shall defend or settle at Our expense any third party claim brought against You alleging that the Servicethis Software, when used as authorized under this Agreement, infringes such third-party’s intellectual property, copyright, patent or trademark and We shall indemnify and hold You harmless from and against any damages and costs awarded against You or agreed in settlement by Us (including reasonable attorneys’ fees) resulting from such claim, provided that You immediately notify Us of such claim, allow Us to control the defense, litigation or settlement of such claim, and cooperate with Us in the investigation, defense, and/or settlement of such claim. If any infringement claim with respect to Your access to, or use of, the Service of this Software may be or has been asserted, We shall, at Our option and expense, (a) procure the right to continue accessing and using the Service this Software, or (b) replace or modify the Service this Software to eliminate the infringement while providing functionally equivalent performance. If neither of (a) and or (b) above are commercially reasonably feasible as determined in Our sole discretion, We may terminate this Agreement and Your subscription license for this Software and refund to You the pro-rata amount of any prepaid license fees for Your remaining then- then-current Subscription Termterm for this Software. We have no indemnity obligation to You to the extent any infringement or misappropriation claim results from (i) a correction or modification to the Service this Software not provided by or on behalf of Us, (ii) materials provided by You in connection with requested customizations or modifications of the Service, (iii) Your Contentthis Software, or (iviii) use, combination, or incorporation of the Servicethis Software, or improvements thereto, with products or services not provided by Us. You acknowledge that the indemnification in this section Section states Your exclusive remedy and Our sole liability in connection with any claim of infringement.

Indemnification by Us. We shall will indemnify, defend or settle at Our expense any third party claim brought against You alleging that the Service, when used as authorized under this Agreement, infringes such third-party’s copyright, patent or trademark and We shall indemnify and hold You harmless from and against any claim brought by a third party against You by reason of Your use of a Service as permitted hereunder, alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages and costs finally awarded against You or agreed in settlement connection therewith, including the reasonable fees and expenses of the attorneys engaged by Us (including reasonable attorneys’ fees) resulting from Zendesk for such claimdefense, provided that (a) You immediately promptly notify Us Zendesk of the threat or notice of such claim, allow Us IP Claim; (b) We will have the sole and exclusive control and authority to control the defense, litigation or settlement of such claimselect defense attorneys, and defend and/or settle any such IP Claim (however, We shall not settle or compromise any claim that results in liability or admission of any liability by You without Your prior written consent); and (c) You fully cooperate with Us Zendesk in the investigation, defense, and/or settlement of such claimconnection therewith. If any infringement claim with respect use of a Service by You, Agents or End-Users has become, or, in Our opinion, is likely to Your access to, or use ofbecome, the Service may be or has been assertedsubject of any such IP Claim, We shallmay, at Our option and expense, (ai) procure for You the right to continue accessing and using the Service or Service(s) as set forth hereunder; (bii) replace or modify the a Service to eliminate make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Zendesk, terminate Your subscription to the infringement while providing functionally equivalent performance. If neither of (aService(s) and (b) above are commercially feasible as determined in Our sole discretionrepay You, We may terminate this Agreement and Your subscription and refund to You the on a pro-rata amount basis, any Subscription Charges previously paid to Zendesk for the corresponding unused portion of any prepaid fees Your Subscription Term for Your remaining then- current Subscription Termsuch Service(s). We will have no indemnity liability or obligation under this Section 14.1 with respect to any IP Claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by You; (y) modification of the Service(s) by anyone other than Zendesk or Zendesk Personnel; or (z) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing. The provisions of this Section 14.1 state the sole, exclusive and entire liability of Zendesk to You and constitute Your sole remedy with respect to the extent any infringement an IP Claim brought by reason of access to or misappropriation claim results from (i) use of a correction Service by You, Agents or modification to the Service not provided by or on behalf of Us, (ii) materials provided by You in connection with requested customizations or modifications of the Service, (iii) Your Content, or (iv) use, combination, or incorporation of the Service, or improvements thereto, with products or services not provided by Us. You acknowledge that the indemnification in this section states Your exclusive remedy and Our sole liability in connection with any claim of infringementEnd-Users.

Indemnification by Us. We shall defend or settle at Our expense any third party claim brought against You alleging that the Service, when used as authorized under this Agreement, infringes such third-party’s intellectual property, copyright, patent or trademark and We shall indemnify and hold You harmless from and against any damages and costs awarded against You or agreed in settlement by Us (including reasonable attorneys’ fees) resulting from such claim, provided that You immediately notify Us of such claim, allow Us to control the defense, litigation or settlement of such claim, and cooperate with Us in the investigation, defense, and/or settlement of such claim. If any infringement claim with respect to Your access to, or use of, the Service may be or has been asserted, We shall, at Our option and expense, (a) procure the right to continue accessing and using the Service or (b) replace or modify the Service to eliminate the infringement while providing functionally equivalent performance. If neither of (a) and or (b) above are commercially reasonably feasible as determined in Our sole discretion, We may terminate this Agreement and Your subscription for this Service and refund to You the pro-rata amount of any prepaid fees for Your remaining then- then-current Subscription Termterm for this Service. We have no indemnity obligation to You to the extent any infringement or misappropriation claim results from (i) a correction or modification to the Service not provided by or on behalf of Us, (ii) materials provided by You in connection with requested customizations or modifications of the Service, (iii) Your Content, or (iv) use, combination, or incorporation of the Service, or improvements thereto, with products or services not provided by Us. You acknowledge that the indemnification in this section Section states Your exclusive remedy and Our sole liability in connection with any claim of infringement.

Indemnification by Us. We shall will defend You against any claim, demand, suit or settle at Our expense any third party claim proceeding made or brought against You by a third party alleging that any Service that You purchased materially infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, reasonable attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You: (a) promptly give Us written notice of the ServiceClaim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability); and (c) give Us all reasonable assistance, when used as authorized under at Our expense. The above defense and indemnification obligations do not apply to Your: (a) use of the Services in violation of this Agreement, infringes such third-partyServices Schedule(s), the Documentation or applicable Order Forms; (b) to the extent that a Claim Against You relates to Your willful misconduct or gross negligence; (c) relates to the incorporation of any Service or software that You purchased is combined, operated with or used with, any technology (including any software, hardware, firmware, system or network) or service not provided by Licensor or specified for Licensee’s copyright, patent use in the Documentation; and (d) relates to the modification of any Service or trademark and We shall indemnify and hold software that You harmless purchased from and against any damages and costs awarded against You or agreed in settlement Us other than: (i) by Us in connection with this Agreement; or (including reasonable attorneys’ feesii) resulting from such claim, provided that You immediately notify Us of such claim, allow Us to control the defense, litigation or settlement of such claim, with Our express written authorization and cooperate in strict accordance with Us in the investigation, defense, and/or settlement of such claimLicensor’s written directions and specification. If any infringement claim Claim Against You is made or is reasonably likely to be made against You with respect to Your access to, or use of, the Service may be or has been assertedintellectual property rights infringement, We shall, shall promptly and at Our option and expense, own expense either: (a) procure for the You the right to continue accessing using and using possessing the Service relevant intellectual property rights; or (b) modify or replace or modify the Service infringing part of the intellectual property rights and without adversely affecting the functionality of the Services as set out in this Agreement so as to eliminate avoid the infringement while providing functionally equivalent performance. If or alleged infringement, provided that if We, having used Our reasonable endeavours, neither of (a) and (b) the above are can be accomplished on commercially feasible as determined in Our sole discretionreasonable terms, We may terminate this Agreement and Your subscription and refund to You the pro-rata amount of any prepaid fees for Your remaining then- current Subscription Term. We have no indemnity obligation to You shall (without prejudice to the extent any infringement or misappropriation claim results from (iindemnity above) a correction or modification to refund the Service not provided by or on behalf of Us, (ii) materials provided Fees paid by You in connection with requested customizations or modifications respect of the Service, (iii) Your Content, or (iv) use, combination, or incorporation of the Service, or improvements thereto, with products or services not provided by Us. You acknowledge that the indemnification in this section states Your exclusive remedy and Our sole liability in connection with any claim of infringementaffected Services.

Indemnification by Us. We shall defend You against any claim, demand, suit, or settle at Our expense any third party claim proceeding ("Claim") made or brought against You by a third party alleging that the Serviceuse of the Purchased Services as permitted hereunder infringes or misappropriates the intellectual property rights of that third party, when used as authorized under this Agreement, infringes such third-party’s copyright, patent or trademark and We shall indemnify and hold You harmless from and against for any damages and costs finally awarded against You You, or those sums agreed to in settlement by Us (including reasonable attorneys’ fees) resulting from such claim, provided that You immediately notify Us of such claim, allow Us to control the defense, litigation or a monetary settlement of such claimaction, and cooperate for reasonable legal fees incurred by You, in connection with any such Claim; provided, that You (a) promptly give Us in written notice of the investigation, defense, and/or Claim; (b) give Us sole control of the defence and settlement of such claimthe Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. If any infringement claim with respect to Your access tothe Services become, or use ofin Our reasonable opinion are likely to become, the Service may be or has been assertedsubject of a Claim, We shallmay, at Our option and expense, either (ai) procure for You the right to continue accessing and using the Service or allegedly infringing materials; (bii) replace or modify the Service to eliminate the infringement while providing functionally equivalent performance. If neither of (a) and (b) above are commercially feasible as determined in Our sole discretion, We may terminate this Agreement and Your subscription and refund to You the prosame so that they become non-rata amount of any prepaid fees for Your remaining then- current Subscription Term. We have no indemnity obligation to You to the extent any infringement infringing; or misappropriation claim results from (i) a correction or modification to the Service not provided by or on behalf of Us, (ii) materials provided by You in connection with requested customizations or modifications of the Service, (iii) terminate Your Contentright to use all or part of the Services and give You a refund or credit for the fees You actually paid to Us for the prior twelve-month period for the relevant Services as of the date of termination. Notwithstanding the foregoing, We will have no obligation of defence or indemnification or otherwise with respect to any Claim based upon (w) any use of the Services not in accordance with this Agreement; (x) a Third-Party Application, (y) any modification of the Services made by or content provided by any person other than Us; (z) any continuation of the allegedly infringing activity after being notified thereof and provided modifications, replacements, or (iv) use, combination, or incorporation of other remedies that would have avoided the Service, or improvements thereto, with products or services not provided by Us. You acknowledge that the indemnification in this section states Your exclusive remedy and Our sole liability in connection with any claim of alleged infringement.

Indemnification by Us. We shall defend or settle at Our expense any third party claim brought against You alleging that the Service, when used as authorized under this Agreement, infringes such third-party’s copyright, patent or trademark and We shall will indemnify and hold You harmless from and against any claim brought by a third party against You by reason of Your use of a Service as permitted hereunder, alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages and costs finally awarded against You or agreed in settlement connection therewith, including the reasonable fees and expenses of the attorneys engaged by Us (including reasonable attorneys’ fees) resulting from Zendesk for such claimdefense, provided that (a) You immediately promptly notify Us Zendesk of the threat or notice of such claim, allow Us IP Claim; (b) We will have the sole and exclusive control and authority to control the defense, litigation or settlement of such claimselect defense attorneys, and defend and/or settle any such IP Claim (however, We shall not settle or compromise any claim that results in liability or admission of any liability by You without Your prior written consent); and (c) You fully cooperate with Us Zendesk in the investigation, defense, and/or settlement of such claimconnection therewith. If any infringement claim with respect use of a Service by You, Agents or End- Users has become, or, in Our opinion, is likely to Your access to, or use ofbecome, the Service may be or has been assertedsubject of any such IP Claim, We shallmay, at Our option and expense, (ai) procure for You the right to continue accessing and using the Service or Service(s) as set forth hereunder; (bii) replace or modify the a Service to eliminate make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Zendesk, terminate Your subscription to the infringement while providing functionally equivalent performance. If neither of (aService(s) and (b) above are commercially feasible as determined in Our sole discretionrepay You, We may terminate this Agreement and Your subscription and refund to You the on a pro-rata amount basis, any Subscription Charges previously paid to Zendesk for the corresponding unused portion of any prepaid fees Your Subscription Term for Your remaining then- current Subscription Termsuch Service(s). We will have no indemnity liability or obligation under this Section 14.1 with respect to any IP Claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by You; (y) modification of the Service(s) by anyone other than Zendesk or Zendesk Personnel; or (z) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing. The provisions of this Section 14.1 state the sole, exclusive and entire liability of Zendesk to You and constitute Your sole remedy with respect to the extent any infringement an IP Claim brought by reason of access to or misappropriation claim results from (i) use of a correction Service by You, Agents or modification to the Service not provided by or on behalf of Us, (ii) materials provided by You in connection with requested customizations or modifications of the Service, (iii) Your Content, or (iv) use, combination, or incorporation of the Service, or improvements thereto, with products or services not provided by Us. You acknowledge that the indemnification in this section states Your exclusive remedy and Our sole liability in connection with any claim of infringementEnd-Users.

Indemnification by Us. We shall defend or settle at Our expense any third party claim brought against You alleging that the Servicethis Software, when used as authorized under this Agreement, infringes such third-party’s copyright, patent or trademark and We shall indemnify and hold You harmless from and against any damages and costs awarded against You or agreed in settlement by Us (including reasonable attorneys’ fees) resulting from such claim, provided that You immediately notify Us of such claim, allow Us to control the defense, litigation or settlement of such claim, and cooperate with Us in the investigation, defense, and/or settlement of such claim. The foregoing indemnification obligation excludes any obligation with respect to any component of this Software that is Publicly Available Software, as defined below. If any infringement claim with respect to Your access to, or use of, the Service of this Software may be or has been asserted, We shall, at Our option and expense, (a) procure the right to continue accessing and using the Service this Software, or (b) replace or modify the Service this Software to eliminate the infringement while providing functionally equivalent performance. If neither of (a) and or (b) above are commercially reasonably feasible as determined in Our sole discretion, We may terminate Your license for this Agreement and Your subscription Software and refund to You the pro-rata amount of any prepaid fees for Your the remaining then- then-current Subscription Termterm for this Software. We have no indemnity obligation to You to the extent any infringement or misappropriation claim results from (i) a correction or modification to the Service this Software not provided by or on behalf of Us, (ii) materials provided by You in connection with requested customizations or modifications of the Service, (iii) Your Contentthis Software, or (iviii) use, combination, or incorporation of the Servicethis Software, or improvements thereto, with products or services not provided by Us. You acknowledge that the indemnification in this section states Your exclusive remedy and Our sole liability in connection with any claim of infringement.

Indemnification by Us. We shall will defend You against any claim, demand, suit or settle at Our expense any third party claim proceeding made or brought against You by a third-party alleging that the Service, when used as authorized under this Agreement, any Service infringes or misappropriates such third-party’s copyrightintellectual property rights (a “Claim Against You”), patent or trademark and We shall will indemnify and hold You harmless from and against any damages damages, attorney fees and costs finally awarded against You as a result of, or agreed in for amounts paid by You under a settlement approved by Us (including reasonable attorneys’ fees) resulting from such claimin writing of, a Claim Against You, provided that You immediately notify (a) promptly give Us written notice of such claimthe Claim Against You, allow (b) give Us to sole control of the defense, litigation or defense and settlement of such claimthe Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and cooperate with (c) give Us in the investigation, defense, and/or settlement of such claim. If any infringement claim with respect to Your access to, or use of, the Service may be or has been asserted, We shallall reasonable assistance, at Our option and expense, (a) procure the right to continue accessing and using the Service or (b) replace or modify the Service to eliminate the infringement while providing functionally equivalent performance. If neither of (a) and (b) above are commercially feasible as determined in Our sole discretion, We may terminate this Agreement and Your subscription and refund to You the pro-rata amount of any prepaid fees for Your remaining then- current Subscription Term. We have no indemnity obligation to You to the extent any receive information about an infringement or misappropriation claim results from related to a Service, We may in Our discretion and at no cost to You (i) a correction modify the Services so that they are no longer claimed to infringe or modification to the Service not provided by or on behalf of Usmisappropriate, without breaching Our warranties under “SmartSimple Warranties” above, (ii) materials provided by You obtain a license for Your continued use of that Service in connection accordance with requested customizations this Agreement, or modifications of the Service, (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-SmartSimple Application or (iv) use, combination, or incorporation Your use of the ServiceServices in violation of this Agreement, the Documentation or improvements thereto, with products or services not provided by Us. You acknowledge that the indemnification in this section states Your exclusive remedy and Our sole liability in connection with any claim of infringementapplicable Order Forms.

Indemnification by Us. We shall will defend You against any claim, demand, suit or settle at Our expense any third party claim proceeding made or brought against You by a third party alleging that the Service, when used as authorized under this Agreement, any Service infringes or misappropriates such third-third party’s copyrightintellectual property rights (a “Claim Against You”), patent or trademark and We shall will indemnify and hold You harmless from and against any damages damages, legal fees and costs finally awarded against You as a result of, or agreed in for amounts paid by You under a settlement approved by Us (including reasonable attorneys’ fees) resulting from such claimin writing of, a Claim Against You, provided that You immediately notify (a) promptly give Us written notice of such claimthe Claim Against You, allow (b) give Us to sole control of the defense, litigation or defence and settlement of such claimthe Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and cooperate with (c) give Us in the investigation, defense, and/or settlement of such claim. If any infringement claim with respect to Your access to, or use of, the Service may be or has been asserted, We shallall reasonable assistance, at Our option and expense, (a) procure the right to continue accessing and using the Service or (b) replace or modify the Service to eliminate the infringement while providing functionally equivalent performance. If neither of (a) and (b) above are commercially feasible as determined in Our sole discretion, We may terminate this Agreement and Your subscription and refund to You the pro-rata amount of any prepaid fees for Your remaining then- current Subscription Term. We have no indemnity obligation to You to the extent any receive information about an infringement or misappropriation claim results from related to a Service, We may in Our discretion and at no cost to You (i) a correction modify the Services so that they are no longer claimed to infringe or modification to the Service not provided by or on behalf of Usmisappropriate, without breaching Our warranties under “Axiapac Warranties” above, (ii) materials provided by You obtain a license for Your continued use of that Service in connection accordance with requested customizations this Agreement, or modifications of the Service, (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defence and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-Axiapac Application or (iv) use, combination, or incorporation Your use of the ServiceServices in violation of this Agreement, the Documentation or improvements thereto, with products or services not provided by Us. You acknowledge that the indemnification in this section states Your exclusive remedy and Our sole liability in connection with any claim of infringementapplicable Sales Invoice.

Indemnification by Us. We shall will defend You against any claim, demand, suit or settle at Our expense any third party claim proceeding made or brought against You by a third party alleging that any Service that You purchased materially infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, reasonable attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You: (a) promptly give Us written notice of the ServiceClaim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability); and (c) give Us all reasonable assistance, when used as authorized under at Our expense. The above defense and indemnification obligations do not apply to: (a) Your use of the Services in violation of this Agreement, infringes such third-partyServices Schedule(s), the Documentation or applicable Order Forms; (b) to the extent that a Claim Against You relates to Your willful misconduct or gross negligence; (c) relates to the incorporation of any Service or software that You purchased is combined, operated with or used with, any technology (including any software, hardware, firmware, system or network) or service not provided by Licensor or specified for Licensee’s copyright, patent use in the Documentation; and (d) relates to the modification of any Service or trademark and We shall indemnify and hold software that You harmless purchased from and against any damages and costs awarded against You or agreed in settlement Us other than: (i) by Us in connection with this Agreement; or (including reasonable attorneys’ feesii) resulting from such claim, provided that You immediately notify Us of such claim, allow Us to control the defense, litigation or settlement of such claim, with Our express written authorization and cooperate in strict accordance with Us in the investigation, defense, and/or settlement of such claimLicensor’s written directions and specification. If any infringement claim Claim Against You is made or is reasonably likely to be made against You with respect to Your access to, or use of, the Service may be or has been assertedintellectual property rights infringement, We shall, shall promptly and at Our option and expense, own expense either: (a) procure for the You the right to continue accessing using and using possessing the Service relevant intellectual property rights; or (b) modify or replace or modify the Service infringing part of the intellectual property rights and without adversely affecting the functionality of the Services as set out in this Agreement so as to eliminate avoid the infringement while providing functionally equivalent performance. If or alleged infringement, provided that if We, having used Our reasonable endeavours, neither of (a) and (b) the above are can be accomplished on commercially feasible as determined in Our sole discretionreasonable terms, We may terminate this Agreement and Your subscription and refund to You the pro-rata amount of any prepaid fees for Your remaining then- current Subscription Term. We have no indemnity obligation to You shall (without prejudice to the extent any infringement or misappropriation claim results from (iindemnity above) a correction or modification to refund the Service not provided by or on behalf of Us, (ii) materials provided Fees paid by You in connection with requested customizations or modifications respect of the Service, (iii) Your Content, or (iv) use, combination, or incorporation of the Service, or improvements thereto, with products or services not provided by Us. You acknowledge that the indemnification in this section states Your exclusive remedy and Our sole liability in connection with any claim of infringementaffected Services.

Indemnification by Us. We shall defend You against any claim, demand, suit, or settle at Our expense any third party claim proceeding ("Claim") made or brought against You by a third party alleging that the Serviceuse of the Purchased Services as permitted hereunder infringes or misappropriates the intellectual property rights of that third party, when used as authorized under this Agreement, infringes such third-party’s copyright, patent or trademark and We shall indemnify and hold You harmless from and against for any damages and costs finally awarded against You You, or those sums agreed to in settlement by Us (including reasonable attorneys’ fees) resulting from such claim, provided that You immediately notify Us of such claim, allow Us to control the defense, litigation or a monetary settlement of such claimaction, and cooperate for reasonable legal fees incurred by You, in connection with any such Claim; provided, that You (a) promptly give Us in written notice of the investigation, defense, and/or Claim; (b) give Us sole control of the defence and settlement of such claimthe Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. If any infringement claim with respect to Your access tothe Services become, or use ofin Our reasonable opinion are likely to become, the Service may be or has been assertedsubject of a Claim, We shallmay, at Our option and expense, either (ai) procure for You the right to continue accessing and using the Service or allegedly infringing materials; (bii) replace or modify the Service to eliminate the infringement while providing functionally equivalent performance. If neither of (a) and (b) above are commercially feasible as determined in Our sole discretion, We may terminate this Agreement and Your subscription and refund to You the pro-rata amount of any prepaid fees for Your remaining then- current Subscription Term. We have no indemnity obligation to You to the extent any infringement same so that they become non­infringing; or misappropriation claim results from (i) a correction or modification to the Service not provided by or on behalf of Us, (ii) materials provided by You in connection with requested customizations or modifications of the Service, (iii) terminate Your Contentright to use all or part of the Services and give You a refund or credit for the fees You actually paid to Us for the prior twelve­month period for the relevant Services as of the date of termination. Notwithstanding the foregoing, We will have no obligation of defence or indemnification or otherwise with respect to any Claim based upon (w) any use of the Services not in accordance with this Agreement; (x) a Third­Party Application, (y) any modification of the Services made by or content provided by any person other than Us; (z) any continuation of the allegedly infringing activity after being notified thereof and provided modifications, replacements, or (iv) use, combination, or incorporation of other remedies that would have avoided the Service, or improvements thereto, with products or services not provided by Us. You acknowledge that the indemnification in this section states Your exclusive remedy and Our sole liability in connection with any claim of alleged infringement.

Indemnification by Us. We shall defend or settle at Our expense any third party claim brought against You alleging that the Serviceindemnify, when used as authorized under this Agreementdefend, infringes such third-party’s copyright, patent or trademark and We shall indemnify and hold You harmless from and against any damages and costs awarded claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Custom Services as permitted hereunder infringes or agreed in settlement by Us misappropriates any patent, copyright, or other intellectual property right of a third party or violates similar applicable law (including reasonable attorneys’ fees) resulting from such claim, provided that You immediately notify Us of such claim, allow Us to control the defense, litigation or settlement of such claima "Claim Against You"), and cooperate with Us in the investigationshall indemnify You for any losses, defensecosts, and/or settlement of such claim. If any infringement claim with respect to Your access todamages, expenses, and liabilities, including court costs and reasonable legal fees, suffered or use of, the Service may be or has been asserted, We shall, at Our option and expense, (a) procure the right to continue accessing and using the Service or (b) replace or modify the Service to eliminate the infringement while providing functionally equivalent performance. If neither of (a) and (b) above are commercially feasible as determined in Our sole discretion, We may terminate this Agreement and Your subscription and refund to You the pro-rata amount of any prepaid fees for Your remaining then- current Subscription Term. We have no indemnity obligation to You to the extent any infringement or misappropriation claim results from (i) a correction or modification to the Service not provided by or on behalf of Us, (ii) materials provided incurred by You in connection with requested customizations any claim, demand, suit, or modifications proceeding as a result of, and/or for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the ServiceClaim Against You upon Your obtaining knowledge of the Claim; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You without Your express written consent unless the settlement unconditionally releases You of all liability and does not impose any obligations or require any affirmative action on Your part); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Infrastructure may infringe or misappropriate, We may in Our discretion and at no cost to You (iiii) Your Contentmodify the Custom Services so that they no longer infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, or (ivii) use, combination, or incorporation obtain a license for Your continued use of the Service, or improvements thereto, Custom Service in accordance with products or services not provided by Us. You acknowledge that the indemnification in this section states Your exclusive remedy and Our sole liability in connection with any claim of infringementAgreement.

Indemnification by Us. We shall will indemnify, defend or settle at Our expense any third party claim brought against You alleging that the Service, when used as authorized under this Agreement, infringes such third-party’s copyright, patent or trademark and We shall indemnify and hold You harmless from and against any claim brought by a third party against You by reason of Your use of a Service as permitted hereunder, alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages and costs finally awarded against You or agreed in settlement connection therewith, including the reasonable fees and expenses of the attorneys engaged by Us (including reasonable attorneys’ fees) resulting from BoatTrack for such claimdefense, provided that (a) You immediately promptly notify Us BoatTrack of the threat or notice of such claim, allow Us IP Claim; (b) We will have the sole and exclusive control and authority to control the defense, litigation or settlement of such claimselect defense attorneys, and defend and/or settle any such IP Claim (however, We shall not settle or compromise any claim that results in liability or admission of any liability by You without Your prior written consent); and (c) You fully cooperate with Us BoatTrack in the investigation, defense, and/or settlement of such claimconnection therewith. If any infringement claim with respect use of a Service by You, Agents or End-Users has become, or, in Our opinion, is likely to Your access to, or use ofbecome, the Service may be or has been assertedsubject of any such IP Claim, We shallmay, at Our option and expense, (ai) procure for You the right to continue accessing and using the Service or Service(s) as set forth hereunder; (bii) replace or modify the a Service to eliminate make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by BoatTrack, terminate Your subscription to the infringement while providing functionally equivalent performance. If neither of (aService(s) and (b) above are commercially feasible as determined in Our sole discretionrepay You, We may terminate this Agreement and Your subscription and refund to You the on a pro-rata amount basis, any Subscription Charges previously paid to BoatTrack for the corresponding unused portion of any prepaid fees Your Subscription Term for Your remaining then- current Subscription Termsuch Service(s). We will have no indemnity liability or obligation under this Section 14.1 with respect to any IP Claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by You; (y) modification of the Service(s) by anyone other than BoatTrack or BoatTrack Personnel; or (z) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing. The provisions of this Section 14.1 state the sole, exclusive and entire liability of BoatTrack to You and constitute Your sole remedy with respect to the extent any infringement an IP Claim brought by reason of access to or misappropriation claim results from (i) use of a correction Service by You, Agents or modification to the Service not provided by or on behalf of Us, (ii) materials provided by You in connection with requested customizations or modifications of the Service, (iii) Your Content, or (iv) use, combination, or incorporation of the Service, or improvements thereto, with products or services not provided by Us. You acknowledge that the indemnification in this section states Your exclusive remedy and Our sole liability in connection with any claim of infringementEnd-Users.

Indemnification by Us. We shall will defend You against any claim, demand, suit or settle at Our expense any third party claim proceeding made or brought against You by a third party alleging that the Service, when used as authorized under use of Licensed SOFTWARE in accordance with this Agreement, Agreement infringes or misappropriates such third-third party’s copyrightintellectual property rights (a “Claim Against You”), patent or trademark and We shall will indemnify and hold You harmless from and against any damages damages, attorney fees and costs finally awarded against You as a result of, or agreed in for amounts paid by You under a court-approved settlement by Us (including reasonable attorneys’ fees) resulting from such claimof, a Claim Against You, provided that You immediately notify (a) promptly give Us written notice of such claimthe Claim Against You, allow (b) give Us to sole control of the defense, litigation or defense and settlement of such claimthe Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and cooperate with (c) give Us in the investigation, defense, and/or settlement of such claim. If any infringement claim with respect to Your access to, or use of, the Service may be or has been asserted, We shallall reasonable assistance, at Our option and expense, (a) procure the right to continue accessing and using the Service or (b) replace or modify the Service to eliminate the infringement while providing functionally equivalent performance. If neither of (a) and (b) above are commercially feasible as determined in Our sole discretion, We may terminate this Agreement and Your subscription and refund to You the pro-rata amount of any prepaid fees for Your remaining then- current Subscription Term. We have no indemnity obligation to You to the extent any receive information about an infringement or misappropriation claim results from related to SOFTWARE, We may in Our discretion and at no cost to You (i) a correction modify the SOFTWARE so that it no longer infringes or modification to the Service not provided by or on behalf of Usmisappropriates, without breaching Our warranties under Section 9.2 (Our Warranties), (ii) materials provided by You obtain a license for Your continued use of that SOFTWARE in connection accordance with requested customizations this Agreement, or modifications of the Service, (iii) terminate Your subscriptions for that SOFTWARE upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Third-Party Application or (iv) use, combination, or incorporation Your breach of the Service, or improvements thereto, with products or services not provided by Us. You acknowledge that the indemnification in this section states Your exclusive remedy and Our sole liability in connection with any claim of infringementAgreement.