BY APPDYNAMICS. AppDynamics agrees at its expense to defend End User against (or, at AppDynamics’ option, settle) any third party claim to the extent such claim alleges that the Software infringes or misappropriates any patent, copyright, trademark or trade secret of a third party, and AppDynamics shall pay all costs and damages finally awarded against End User by a court of competent jurisdiction as a result of any such claim. In the event that the use of the Software is, or in AppDynamics’ sole opinion is likely to become, subject to such a claim, AppDynamics, at its option and expense, may (a) replace the applicable Software with functionally equivalent non-infringing technology, (b) obtain a licence for End User’s continued use of the applicable Software, or (c) terminate the licence and provide a pro-rata refund of the Software licence fees (or Maintenance and Support Fees, for perpetual licences) that have been paid in advance for the remainder of the Licence Term for the applicable Software (beginning on the date of termination). The foregoing indemnity obligation of AppDynamics will not apply: (1) if the Software is modified by End User or its agent; (2) if the Software is combined with other non- AppDynamics products, applications, or processes, but solely to the extent the alleged infringement is caused by such combination; or (3) to any unauthorised use of the Software. The foregoing shall be End User’s sole remedy with respect to any claim of infringement of third party intellectual property rights.
BY APPDYNAMICS. AppDynamics agrees to defend, at its expense, End User against any third party claim to the extent such claim alleges that the Software infringes or misappropriates any patent, copyright, trademark or trade secret of a third party, and AppDynamics shall pay all costs and damages finally awarded against End User by a court of competent jurisdiction as a result of any such claim. In the event that the use of the Software is, or in AppDynamics’ sole opinion is likely to, become subject to such a claim, AppDynamics, at its option and expense, may (a) replace the applicable Software with functionally equivalent non-infringing technology, (b) obtain a license for End User’s continued use of the applicable Software, or (c) terminate this Agreement and refund any sums prepaid for the unused Term, if any. The foregoing indemnification obligation of AppDynamics will not apply: (1) if the Software is modified by End User; (2) if the Software is combined with other non-AppDynamics products, applications, or processes not authorized by AppDynamics, but solely to the extent the alleged infringement is caused by such combination; or (3) to any unauthorized use of the Software. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND ALL OBLIGATIONS OF APPDYNAMICS AND THE EXCLUSIVE REMEDY OF END USER, WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO THE SOFTWARE.
BY APPDYNAMICS. AppDynamics agrees at its expense to defend End User against (or, at AppDynamics’ option, settle), any third party claim to the extent such claim alleges that the Software infringes or misappropriates any patent, copyright, trademark or trade secret of a third party, and AppDynamics shall pay all costs and damages finally awarded against End User by a court of competent jurisdiction as a result of any such claim. In the event that the use of the Software is, or in AppDynamics’ sole opinion is likely to become, subject to such a claim, AppDynamics, at its option and expense, may (a) replace the applicable Software with functionally equivalent non- infringing technology, (b) obtain a license for End User’s continued use of the applicable Software, or (c) terminate the license and provide a pro-rata refund of the Software license fees (or Maintenance and Support Fees, for perpetual licenses) that have been paid in advance for the remainder of the License Term for the applicable Software (beginning on the date of termination). The foregoing indemnification obligation of AppDynamics will not apply:
BY APPDYNAMICS. Subject to clause 8.2 and End User’s compliance with clause 8.4, AppDynamics agrees at its expense to defend End User against (or, at AppDynamics’ option, settle) any third party claim to the extent such claim alleges that the Software infringes or misappropriates any patent, copyright, trademark or trade secret of a third party, and AppDynamics shall pay all costs and damages finally awarded against End User by a court of competent jurisdiction as a result of any such claim. If the use of the Software is, or in AppDynamics’ sole opinion is likely to become, subject to such a claim, AppDynamics, at its option and expense, may: (a) replace the applicable Software with functionally equivalent non-infringing technology; (b) obtain a licence for End User’s continued use of the applicable Software; or (c) terminate the licence and provide a pro-rata refund of the Software licence fees (or Maintenance and Support Fees, for perpetual licences) that have been paid in advance for the remainder of the Licence Term for the applicable Software (beginning on the date of termination).
BY APPDYNAMICS. Subject to Section 7.2 and End User’s compliance with Section 7.3, AppDynamics agrees at its expense to defend End User against (or, at AppDynamics’ option, settle), any third party claim to the extent such claim alleges that the Software infringes or misappropriates any patent, copyright, trademark or trade secret of a third party, and AppDynamics shall pay all costs and damages finally awarded against End User by a court of competent jurisdiction as a result of any such claim. If the use of the Software is, or in AppDynamics’ sole opinion is likely to become, subject to such a claim, AppDynamics, at its option and expense, may (a) replace the applicable Software with functionally equivalent non-infringing technology, (b) obtain a license for End User’s continued use of the applicable Software, or (c) terminate the license and provide a pro-rata refund of the Software license fees (or Maintenance and Support Fees, for perpetual licenses) that have been paid in advance for the remainder of the License Term for the applicable Software (beginning on the date of termination). The foregoing indemnification obligation of AppDynamics will not apply: (a) if the Software AppDynamics Proprietary & Confidential * September 2019 Page 4 of 9 is modified by End User or its agent; (b) if the Software is combined with other non-AppDynamics products, applications, or processes, but solely to the extent the alleged infringement is caused by such combination; or
