Common use of INDEMNIFICATION FOR INFRINGEMENT Clause in Contracts

INDEMNIFICATION FOR INFRINGEMENT. a. The following indemnification provisions set forth the entire obligation of KMC with respect to infringement of proprietary rights arising directly from the Qwest-Required Equipment used to provide MGS Services; provided, however, notwithstanding the foregoing, that KMC shall have no indemnification or other obligation to Qwest whatever with respect to infringement of proprietary rights arising directly from the Qwest-Required Equipment except to the extent, if any, that KMC possesses the right to be indemnified by the vendor or manufacturer of the Qwest-Required Equipment from time to time for infringement of proprietary rights: i. KMC or its suppliers will defend any claim, suit or proceeding brought against Qwest insofar as it is based on a claim that any Qwest-Required Equipment used hereunder infringes a United States copyright or an existing United States patent (issued as of August 31, 1999). Qwest shall notify KMC promptly in writing of the claim and give KMC and its suppliers full authority, information, and assistance for the defense. If such claim has occurred, or in KMC's opinion is likely to occur, Qwest agrees to permit KMC and its suppliers, at KMC's option and expense, either to procure for Qwest the right to continue using the Qwest- Required Equipment or to replace or modify the same so that it becomes noninfringing, or, if neither of the foregoing alternatives is reasonably available, remove the Equipment and refund Qwest the portion of the price for the MGS Services reasonably attributable to such Equipment depreciated or amortized by an equal annual amount over the lifetime of the Qwest-Required Equipment as established by Cisco or Nortel. ii. KMC and its suppliers have no liability under this Section 11 for any claim based upon the combination, operation, or use of any Qwest-Required Equipment used hereunder with equipment, devices, or software not supplied by the vendor of such Qwest-Required Equipment. KMC and its suppliers have no liability for any claim under this Section 11 based upon alteration or modification by Qwest or a third party of any Qwest-Required Equipment supplied hereunder. Further, KMC and its suppliers shall have no liability for any claim based upon compliance with Qwest's designs, specifications, or instructions. b. The following provisions relate to all Equipment other than Qwest-Required Equipment and all combinations of Equipment: i. KMC agrees to defend and/or handle at its own expense, and to indemnify and hold Qwest harmless from and against any and all liabilities, losses, costs, damages and expenses (including reasonable attorneys' fees attributable to such claim) associated with, any claim or action against Qwest by any third party based upon any actual or alleged infringement or violation of a United States patent, or any trademark, copyright, or trade secret of a third party enforceable in the United States related to KMC's provision of the MGS Services ("Infringement Claim"), provided that Qwest shall approve the terms of any settlement or compromise unless KMC demonstrates its financial capacity to satisfy the settlement or compromise. ii. KMC shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise. Qwest shall promptly notify KMC of the subject claim and provide reasonable information in connection with such claim. iii. KMC warrants that it has the full power and authority to deliver, convey and grant to Qwest the related license and other rights granted under this Agreement; and that KMC's provision of MGS Services under this Agreement and Qwest's use of the MGS Services related to the Equipment will not constitute a misappropriation of any trade secrets or constitute a patent, copyright or trademark infringement. iv. This indemnity shall not extend to any claim of infringement resulting from Qwest's unauthorized modification of equipment of KMC or the combination of the Equipment or MGS Services with services or equipment not provided by KMC or by or for Qwest with KMC's express written approval.

INDEMNIFICATION FOR INFRINGEMENT. a. The following indemnification provisions set forth the entire obligation of KMC with respect to infringement of proprietary rights arising directly from the Qwest-Required Equipment used to provide Upgraded MGS Services; provided, however, notwithstanding the foregoing, that KMC shall have no indemnification or other obligation to Qwest whatever with respect to infringement of proprietary rights directly arising directly from the Qwest-Required Equipment except to the extent, if any, that KMC possesses the right to be indemnified by the vendor or manufacturer of the Qwest-Required Equipment from time to time for infringement of proprietary rights: i. KMC or its suppliers will defend any claim, suit or proceeding brought against Qwest insofar as it is based on a claim that any Qwest-Required Equipment used hereunder infringes a United States copyright or an existing United States patent (issued as of August March 31, 19992001). Qwest shall notify KMC promptly in writing of the claim and give KMC and its suppliers full authority, information, and assistance for the defense. If such claim has occurred, or in KMC's opinion is likely to occur, Qwest agrees to permit KMC and its suppliers, at KMC's option and expense, either to procure for Qwest the right to continue using the Qwest- Qwest-Required Equipment or to replace or modify the same so that it becomes noninfringing, or, if neither of the foregoing alternatives is reasonably available, remove the Equipment and refund Qwest the portion of the price for the Upgraded MGS Services reasonably attributable to such Equipment depreciated or amortized by an equal annual amount over the lifetime of the Qwest-Required Equipment as established by Cisco or NortelEquipment. ii. KMC and its suppliers have no liability under this Section 11 for any claim based upon the combination, operation, or use of any Qwest-Required Equipment used hereunder with equipment, devices, or software not supplied by the vendor of such Qwest-Required Equipment. KMC and its suppliers have no liability for any claim under this Section 11 based upon alteration or modification by Qwest or a third party of any Qwest-Required Equipment supplied hereunder. Further, KMC and its suppliers shall have no liability for any claim based upon compliance with Qwest's designs, specifications, or instructions. b. The following provisions relate to all Equipment other than Qwest-Required Equipment and all combinations of Equipment: i. KMC agrees to defend and/or handle at its own expense, and to indemnify and hold Qwest harmless from and against any and all liabilities, losses, costs, damages and expenses (including reasonable attorneys' fees attributable to such claim) associated with, any claim or action against Qwest by any third party based upon any actual or alleged infringement or violation of a United States patent, or any trademark, copyright, or trade secret of a third party enforceable in the United States related to KMC's provision of the Upgraded MGS Services ("Infringement Claim"), provided that Qwest shall approve the terms of any settlement or compromise unless KMC demonstrates its financial capacity to satisfy the settlement or compromise. ii. KMC shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise. Qwest shall promptly notify KMC of the subject claim and provide reasonable information in connection with such claim. iii. KMC warrants that it has the full power and authority to deliver, convey and grant to Qwest the related license and other rights granted under this Agreement; and that KMC's provision of Upgraded MGS Services under this Agreement and Qwest's use of the Upgraded MGS Services related to the Equipment will not constitute a misappropriation of any trade secrets or constitute a patent, copyright or trademark infringement. iv. This indemnity shall not extend to any claim of infringement resulting from Qwest's unauthorized modification of equipment of KMC or the combination of the Equipment or Upgraded MGS Services with services or equipment not provided by KMC or by or for Qwest with KMC's express written approval.