Common use of Infringement of Fidelity Software Clause in Contracts

Infringement of Fidelity Software. Subject to Section 6, Fidelity shall defend, at its own expense, any claim or action brought by any third party against Customer or against its officers, directors, employees, Customer Affiliates, or agents for actual infringement of any patent, copyright or other intellectual property right (including, but not limited to, misappropriation of trade secrets) based upon the Software furnished hereunder by Fidelity to provide Services to Customer hereunder. Furthermore, Fidelity shall indemnify and hold Customer and the Customer Affiliates harmless from and against any and all liabilities, losses, costs, damages, and expenses (including reasonable attorneys’ fees) associated with any such claim or action incurred by Customer and the Customer Affiliates. Fidelity shall have the sole right to conduct and control the defense of any such claim or action and all negotiations for its settlement or compromise, unless otherwise mutually agreed to in writing between the parties hereto. Fidelity shall give Customer, and Customer shall give Fidelity, as appropriate, prompt written notice of any written threat, warning or notice of any such claim or action against Fidelity or Customer, as appropriate, or any other user or any supplier of components of the Software, which could have an adverse impact on Customer’s use of same, provided Fidelity or Customer, as appropriate, knows of such claim or action. If, in any such suit so defended, all or any part of the Software (or any component thereof) is held to constitute an infringement or violation of any other party’s intellectual property rights and is enjoined, or if in respect of any claim of infringement, and if Fidelity deems it advisable to do so, Fidelity shall at its sole option take one or more of the following actions at no additional cost to Customer: (a) procure the right to continue the use of the same without material interruption for Customer; (b) replace or modify the Software with non-infringing software or component thereof without adversely altering its function or performance in any material way; or (c) take back the infringing Software or component thereof and credit Customer with an amount equal to the license fee for such Software or component thereof paid by the Customer. The foregoing represents the sole and exclusive remedy of Customer with regard to any of the above infringements or alleged infringements.

Infringement of Fidelity Software. Subject to Section 613.2, Fidelity shall defend, defend at its own expense, any claim or action brought by any third party against Customer Client or against its officers, directors, employees, Customer AffiliatesClient affiliates, or and agents for actual or alleged infringement of any patent, copyright or other intellectual property right (including, but not limited to, misappropriation of trade secrets) based upon the Software any software furnished hereunder by Fidelity to provide Services to Customer Client hereunder. Furthermore, Fidelity shall indemnify and hold Customer Client and the Customer Affiliates Client affiliates harmless from and against any and all liabilities, losses, costs, damages, and expenses (including reasonable attorneys’ ' fees) associated with any such claim or action incurred by Customer Client and the Customer AffiliatesClient affiliates. Fidelity shall have the sole right to conduct and control the defense of any such claim or action and all negotiations for its settlement or compromise, unless otherwise mutually agreed to in writing between the parties hereto. Fidelity shall give CustomerClient, and Customer Client shall give Fidelity, as appropriate, prompt written notice of any written threat, warning or notice of any such claim or action against Fidelity or CustomerClient, as appropriate, or any other user or any supplier of components of the Softwaresuch software, which could have an adverse impact on Customer’s Client's use of same, provided Fidelity or CustomerClient, as appropriate, knows of such claim or action. If, in any such suit so defended, all or any part of the Software such software (or any component thereof) is held to constitute an infringement or violation of any other party’s 's intellectual property rights and is enjoined, or if in respect of any claim of infringement, and if Fidelity deems it advisable to do so, Fidelity shall at its sole option take one or more of the following actions at no additional cost to CustomerClient: (a) procure the right to continue the use of the same without material interruption for CustomerClient; (b) replace or modify the Software same with non-infringing software or component thereof; (c) modify such software or component thereof without adversely altering its function or performance in any material wayso as to be non-infringing; or (cd) take back the infringing Software software or component thereof and credit Customer Client with an amount equal to the license fee for such Software or component thereof paid by the Customerits appropriate fee. The foregoing represents the sole and exclusive remedy of Customer Client with regard to any of the above infringements or alleged infringements.

Infringement of Fidelity Software. Subject to Section 6, Fidelity shall defend, defend at its own expense, any claim or action brought by any third party against Customer Client or against its officers, directors, employees, Customer AffiliatesClient affiliates, or and agents for actual or alleged infringement of any patent, copyright or other intellectual property right (including, but not limited to, misappropriation of trade secrets) based upon the Software furnished hereunder by Fidelity to provide Services to Customer Client hereunder. For the purposes of this Section, "Software" includes Licensed Software. Furthermore, Fidelity shall indemnify and hold Customer Client and the Customer Affiliates Client affiliates harmless from and against any and all liabilities, losses, costs, damages, and expenses (including reasonable attorneys’ ' fees) associated with any such claim or action incurred by Customer Client and the Customer AffiliatesClient affiliates. Fidelity shall have the sole right to conduct and control the defense of any such claim or action and all negotiations for its settlement or compromise, unless otherwise mutually agreed to in writing between the parties hereto. Fidelity shall give CustomerClient, and Customer Client shall give Fidelity, as appropriate, prompt written notice of any written threat, warning or notice of any such claim or action against Fidelity or CustomerClient, as appropriate, or any other user or any supplier of components of the Software, which could have an adverse impact on Customer’s Client's use of same, provided Fidelity or CustomerClient, as appropriate, knows of such claim or action. If, in any such suit so defended, all or any part of the Software (or any component thereof) is held to constitute an infringement or violation of any other party’s 's intellectual property rights and is enjoined, or if in respect of any claim of infringement, and if Fidelity deems it advisable to do so, . Fidelity shall at its sole option take one o~e or more of the following actions at no additional cost to CustomerClient: (a) procure the right to continue the use of the same without \\without material interruption for CustomerClient; (b) replace or modify the Software same with non-infringing software or component thereof; (c) modify)r said Software or component thereof without adversely altering its function or performance in any material wayso as to be non-infringing; or (cd) take back the infringing Software or component thereof and credit Customer Client with an amount equal to the license fee for such Software or component thereof paid by the Customerits appropriate fee. The foregoing represents the sole and exclusive remedy of Customer Client with regard to any of the above infringements or alleged infringements.

Infringement of Fidelity Software. Subject to Section 6, Fidelity shall defend, at its own expense, any claim or action brought by any third party against Customer or against its officers, directors, employees, Customer Customer’s Affiliates, or agents for actual infringement of any patent, copyright or other intellectual property right (including, but not limited to, misappropriation of trade secrets) based upon the Software furnished hereunder by Fidelity to provide Services to Customer hereunder. Furthermore, Fidelity shall indemnify and hold Customer and the Customer Customer’s Affiliates harmless from and against any and all liabilities, losses, costs, damages, and expenses (including reasonable attorneys’ ' fees) associated with any such claim or action incurred by Customer and the Customer Customer’s Affiliates. Fidelity shall have the sole right to conduct and control the defense of any such claim or action and all negotiations for its settlement or compromise, unless otherwise mutually agreed to in writing between the parties hereto. Fidelity shall give Customer, and Customer shall give Fidelity, as appropriate, prompt written notice of any written threat, warning or notice of any such claim or action against Fidelity or Customer, as appropriate, or any other user or any supplier of components of the Software, which could have an adverse impact on Customer’s use of same, provided Fidelity or Customer, as appropriate, knows of such claim or action. If, in any such suit so defended, all or any part of the Software (or any component thereof) is held to constitute an infringement or violation of any other party’s 's intellectual property rights and is enjoined, or if in respect of any claim of infringement, and if Fidelity deems it advisable to do so, Fidelity shall at its sole option take one or more of the following actions at no additional cost to Customer: (a) procure the right to continue the use of the same without material interruption for Customer; (b) replace or modify the Software with non-infringing software or component thereof without adversely altering its function or performance in any material way; or (c) take back the infringing Software or component thereof and credit Customer with an amount equal to the license fee for such Software or component thereof paid by the Customer. The foregoing represents the sole and exclusive remedy of Customer with regard to any of the above infringements or alleged infringements.

Infringement of Fidelity Software. Subject Fidelity agrees to Section 6, Fidelity shall defend, defend at its own expense, any claim or action brought by any third party against Customer Client or against its Affiliates or any of its or their officers, directors, employees, Customer Affiliatesadvisors, representatives or agents agent (each an “Indemnified Person”) for actual or alleged infringement of any patent, copyright or other intellectual property right (including, but not limited to, misappropriation of trade secrets) based upon the Software or the Products and Services furnished hereunder by Fidelity to provide Services to Customer hereunder. Furthermore, Fidelity shall further agrees to indemnify and hold Customer each *** Confidential material redacted and submitted separately to the Customer Affiliates Commission Indemnified Person harmless from and against any and all liabilities, losses, costs, direct damages, and expenses (including including, without limitation, reasonable attorneys’ fees) associated with any such claim or action incurred by Customer and the Customer Affiliatessuch Indemnified Person. Fidelity shall have the sole right to conduct and control the defense of any such claim or action and all negotiations for its settlement or compromise, unless otherwise mutually agreed to in writing between the parties hereto; provided, however, that no settlement or compromise may include any acknowledgement or admission of liability by, or the entry of any judgment against, such Indemnified Person without such Indemnified Person’s consent, which consent shall not be unreasonably delayed, conditioned or withheld. Fidelity shall agrees to give CustomerClient, and Customer shall Client agrees to give Fidelity, as appropriate, prompt written notice of any written threat, warning or notice of any such claim or action against Fidelity or CustomerClient, as appropriate, or any other user or any supplier of components of the SoftwareSoftware covered hereunder, which could have an adverse impact on CustomerClient’s use of same, provided Fidelity or CustomerClient, as appropriate, knows of such claim or action. If, If in any such suit so defended, all or any part of the Software (or any component thereof) is held to constitute an infringement or violation of any other party’s intellectual property rights and is enjoined, or if in respect of any claim of infringement, and if Fidelity deems it advisable to do so, Fidelity shall at its sole option take one or more of the following actions at no additional cost to CustomerClient: (a) procure the right to continue the use of the same without material interruption for CustomerClient; (b) replace or modify the Software same with non-infringing software or component thereof without adversely altering its function or performance in any material waythat meets the same specifications as the infringing software; or (c) take back modify said Fidelity Software so as to be non-infringing, provided that the Software as modified meets the same specifications as the infringing Software or component thereof and credit Customer with an amount equal to the license fee for such Software or component thereof paid by the Customersoftware. The foregoing represents the sole and exclusive remedy of Customer Client with regard to any of the above infringements or alleged infringements.