Common use of Provider Indemnification Clause in Contracts

Provider Indemnification. Provider shall defend, indemnify and hold Customer harmless from and against any damages arising out of third party claims alleging that the Subscription when used as authorized under this Agreement infringes a patent, copyright, or trademark, including costs awarded or agreed in settlement by Provider (including reasonable attorneys’ fees) resulting from such claim, provided that Provider shall have received from Customer: (1) prompt written notice of such claim (but in any event notice in sufficient time for Provider to respond without prejudice); (2) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (3) all reasonably necessary cooperation from Customer. If Customer’s Subscription is (or in Provider’s opinion is likely to be) enjoined, if required by settlement or if Provider determines such actions are reasonably necessary to avoid liability, Provider may, in its sole discretion: (a) substitute for the Subscription substantially functionally similar programs and documentation; (b) procure for Customer the right to continue using the Subscription ; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund Customer any pre- paid and unearned Subscription fees. The foregoing obligations of Provider shall not apply: (i) if the Subscription is modified by any party other than Provider, but solely to the extent the alleged infringement is caused by such modification; (ii) if the Subscription is combined with products or processes not provided or authorized by Provider, but solely to the extent the alleged infringement is caused by such combination; (iii) to any unauthorized use of the Subscription ; (iv) to any unsupported release of the Subscription; (v) to any third-party code contained within the Subscription; or (vi) if Customer settles or makes any admissions with respect to a claim without Provider’s prior written consent. This Section 9.0 sets forth Provider’s and its Licensor’s sole liability and Customer’s sole and exclusive remedy with respect to any claim of intellectual property infringement .

Provider Indemnification. Provider shall indemnify, defend, indemnify and hold harmless Customer harmless from and against any damages arising out of third party claims alleging that the Subscription when used as authorized under this Agreement infringes a patentand all losses, copyrightdamages, or trademarkliabilities, including costs awarded or agreed in settlement by Provider (including reasonable attorneys’ ' fees) ("Losses") incurred by Customer resulting from such claim, provided that Provider shall have received from Customer: (1) prompt written notice of such claim (but in any event notice in sufficient time for Provider to respond without prejudice); (2) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (3) all reasonably necessary cooperation from Customer. If Customer’s Subscription is (or in Provider’s opinion is likely to be) enjoined, if required by settlement or if Provider determines such actions are reasonably necessary to avoid liability, Provider may, in its sole discretion: (a) substitute for the Subscription substantially functionally similar programs and documentation; (b) procure for Customer the right to continue using the Subscription ; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund Customer any pre- paid and unearned Subscription fees. The foregoing obligations of Provider shall not apply: (i) if the Subscription is modified by any party other than Provider, but solely to the extent the alleged infringement is caused by such modification; (ii) if the Subscription is combined with products or processes not provided or authorized by Provider, but solely to the extent the alleged infringement is caused by such combination; (iii) to any unauthorized use of the Subscription ; (iv) to any unsupported release of the Subscription; (v) to any third-party code contained within claim, suit, action, or proceeding ("Third-Party Claim") that the SubscriptionServices, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights, patents, copyrights, or trade secrets, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; or (viC) if Customer settles Data ; or makes any admissions with respect to a claim without (D) Third-Party Products. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s prior written consent. This Section 9.0 sets forth Provider’s 's option, defend Provider against all claims, liability, damages, losses, costs and its Licensor’s sole liability expenses, including legal fees, suffered by us and Customer’s sole and exclusive remedy with respect arising out of or related to any claim breach of intellectual property infringement this Agreement by you or any other liabilities incurred by us arising out of your use of the services, or use by any other person accessing the services using your user account, device or internet access account; or your violation of any law or rights of any third party. Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

Provider Indemnification. Provider shall indemnify, defend, indemnify and hold harmless Customer harmless from and against any damages arising out of third party claims alleging that the Subscription when used as authorized under this Agreement infringes a patentand all losses, copyrightdamages, or trademarkliabilities, including costs awarded or agreed in settlement by Provider (including reasonable attorneys’ ' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this S-a-a-S Agreement, infringes or misappropriates such claimthird party's US patents, copyrights, or trade secrets, provided that Customer promptly notifies Provider shall have received from Customer: (1) prompt written notice in writing of such claim (but in any event notice in sufficient time for the claim, cooperates with Provider, and allows Provider to respond without prejudice); (2) the exclusive right sole authority to control and direct the investigation, defense, defense and settlement (if applicable) of such claim; and (3) all reasonably necessary cooperation from Customer. If Customer’s Subscription such a claim is made or appears possible, Customer agrees to permit Provider, at Provider's sole discretion, to (A) modify or in Provider’s opinion is likely replace the Services, or component or part thereof, to bemake it non-infringing, or (B) enjoined, if required by settlement or if obtain the right for Customer to continue use. If Provider determines such actions are that neither alternative is reasonably necessary to avoid liabilityavailable, Provider maymay terminate this S-a-a-S Agreement, in its sole discretionentirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; or (C) Customer Data. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this S-a-a-S Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-Party Claims based on Customer's or any Authorized System User's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this S-a-a-S Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice. Sole Remedy. THIS SECTION SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER'S LIABILITY UNDER THIS SECTION 9 EXCEED $25,000.00. Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) substitute for the Subscription substantially functionally similar programs and documentationCONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) procure for Customer the right to continue using the Subscription INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund Customer any pre- paid and unearned Subscription fees. The foregoing obligations of Provider shall not apply: (i) if the Subscription is modified by any party other than Provider, but solely to the extent the alleged infringement is caused by such modificationLOSS OF GOODWILL OR REPUTATION; (iid) if the Subscription is combined with products or processes not provided or authorized by ProviderUSE, but solely to the extent the alleged infringement is caused by such combinationINABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (iiie) to any unauthorized use of the Subscription ; COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (iv) to any unsupported release of the Subscription; (v) to any third-party code contained within the Subscription; or (vi) if Customer settles or makes any admissions with respect to a claim without Provider’s prior written consentINCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED 3 TIMES THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $25,000.00, WHICHEVER IS LESS. This Section 9.0 sets forth Provider’s Term and its Licensor’s sole liability and Customer’s sole and exclusive remedy with respect to any claim of intellectual property infringement Termination.

Provider Indemnification. Provider shall indemnify, defend, indemnify and hold Customer harmless Podcaster from and against any damages arising out of third party claims alleging that the Subscription when used as authorized under this Agreement infringes a patentand all losses, copyrightdamages, or trademarkliabilities, including costs awarded or agreed in settlement by Provider (including reasonable attorneys’ ' fees) ("Losses") incurred by Podcaster resulting from any third party claim, suit, action, or proceeding ("Third Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such claimthird party's US intellectual property rights/US patents, copyrights, or trade secrets, provided that Podcaster promptly notifies Provider shall have received from Customer: (1) prompt written notice in writing of such claim (but in any event notice in sufficient time for the claim, cooperates with Provider, and allows Provider to respond without prejudice); (2) the exclusive right sole authority to control and direct the investigation, defense, defense and settlement (if applicable) of such claim. Podcaster Indemnification. Podcaster shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any Losses resulting from any Third Party Claim that the Podcaster IP, or any use of the Podcaster IP in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any Third Party Claims based on Podcaster's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Podcaster may not settle any Third Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third Party Claim or to participate in the defense thereof by counsel of its own choice. Sole Remedy. THIS SECTION 10 SETS FORTH PODCASTER’S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (3) all reasonably necessary cooperation from Customer. If Customer’s Subscription is (or in Provider’s opinion is likely to be) enjoinedINCLUDING NEGLIGENCE), if required by settlement or if Provider determines such actions are reasonably necessary to avoid liabilitySTRICT LIABILITY, Provider mayAND OTHERWISE, in its sole discretionFOR ANY: (a) substitute for the Subscription substantially functionally similar programs and documentationCONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) procure for Customer the right to continue using the Subscription INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund Customer any pre- paid and unearned Subscription fees. The foregoing obligations of Provider shall not apply: (i) if the Subscription is modified by any party other than Provider, but solely to the extent the alleged infringement is caused by such modificationLOSS OF GOODWILL OR REPUTATION; (iid) if the Subscription is combined with products or processes not provided or authorized by ProviderUSE, but solely to the extent the alleged infringement is caused by such combinationINABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (iiie) to any unauthorized use of the Subscription ; COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (ivINCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED TWO (2) to any unsupported release of the Subscription; TIMES THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (v12) to any third-party code contained within the Subscription; or (vi) if Customer settles or makes any admissions with respect to a claim without Provider’s prior written consent. This Section 9.0 sets forth Provider’s and its Licensor’s sole liability and Customer’s sole and exclusive remedy with respect to any claim of intellectual property infringement MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Provider Indemnification. Provider shall defend, indemnify and hold Customer harmless from and against any damages arising out of third party claims alleging that the Subscription when used as authorized under this Agreement infringes a patent, copyright, or trademark, including costs awarded or agreed in settlement by Provider (including reasonable attorneys’ fees) resulting from such claim, provided that Provider shall have received from Customer: (1) prompt written notice of such claim (but in any event notice in sufficient time for Provider to respond without prejudice); (2) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (3) all reasonably necessary cooperation from Customer. If Customer’s Subscription is (or in Provider’s opinion is likely to be) enjoined, if required by settlement or if Provider determines such actions are reasonably necessary to avoid liability, Provider may, in its sole discretion: (a) substitute for the Subscription substantially functionally similar programs and documentation; (b) procure for Customer the right to continue using the Subscription ; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund Customer any pre- pre-paid and unearned Subscription fees. The foregoing obligations of Provider shall not apply: (i) if the Subscription is modified by any party other than Provider, but solely to the extent the alleged infringement is caused by such modification; (ii) if the Subscription is combined with products or processes not provided or authorized by Provider, but solely to the extent the alleged infringement is caused by such combination; (iii) to any unauthorized use of the Subscription ; (iv) to any unsupported release of the Subscription; (v) to any third-party code contained within the Subscription; or (vi) if Customer settles or makes any admissions with respect to a claim without Provider’s prior written consent. This Section 9.0 sets forth Provider’s and its Licensor’s sole liability and Customer’s sole and exclusive remedy with respect to any claim of intellectual property infringement infringement.

Provider Indemnification. Subject to Section 9 above, Provider shall defendwill defend you from any written claim or legal proceedings brought by a third party (each, a “Claim”), and indemnify and hold Customer you harmless from the resulting liabilities, damages, penalties, fines, costs, and against any damages arising out of third party claims alleging that the Subscription when used as authorized under this Agreement infringes a patent, copyright, or trademark, including costs awarded or agreed in settlement by Provider expenses (including reasonable attorneys’ fees) resulting from (“Liabilities”), to the extent such claimClaim alleges that the Services infringe any United States patent, provided registered trademark, or copyright or that Provider shall have received from Customer: (1) prompt written notice misappropriated such third party’s trade secrets enforceable in the United States in the development of such claim (but in any event notice in sufficient time for Provider to respond without prejudice); (2) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (3) all reasonably necessary cooperation from CustomerServices. If Customer’s Subscription a Claim is (made or in Provider’s opinion is appears likely to be) enjoinedoccur, if required by settlement or if Provider determines such actions are reasonably necessary to avoid liability, then Provider may, in its sole discretion: , (a) substitute for the Subscription substantially functionally similar programs and documentation; (b) procure for Customer you the right to continue using the Subscription Services; or if (a) and (b) replace or modify the Services so that they are not commercially reasonable, infringing; or (c) terminate this Agreement with respect to the Agreement infringing portion of the Services and refund Customer any pre- paid and unearned Subscription feesprepaid, unused fees for such portion of the Services from the date of termination through the end of the prepaid subscription period. The foregoing obligations of Provider shall This Section 10.1 will not apply: (i) if the Subscription is modified by any party other than Provider, but solely apply to the extent that the alleged infringement is caused by such modificationarises from: (A) use of the Services against Provider’s written instructions; (iiB) if modifications to the Subscription is combined with products or processes Services not provided or authorized made by Provider; (C) Your Content or Third-Party Content; (D) Free Services, but solely to Beta Services, or Third-Party Services; (E) your continued use of the extent Services after notice of allegedly infringing material or being informed of modifications that would have avoided the alleged infringement is caused by such combinationin whole or in part; and (iiiF) to any unauthorized use your illegal conduct or breach of the Subscription ; (iv) to any unsupported release of the Subscription; (v) to any third-party code contained within the Subscription; or (vi) if Customer settles or makes any admissions with respect to a claim without Provider’s prior written consentthis Agreement. This Section 9.0 sets forth Provider’s and its Licensor’s sole liability and Customer’s sole and exclusive remedy with respect to any claim of intellectual property infringement THIS SECTION 10.1 DESCRIBES PROVIDER’S ENTIRE LIABILITY TO YOU AND YOUR EXCLUSIVE REMEDY FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.