Indemnification of Client. Subject to the terms and conditions of this Section 9, Provider, on its own behalf and on behalf of its successors and assigns, agrees to (a) indemnify and defend Client, DigiCat, and their respective Affiliates, successors and assigns (the “Client Indemnified Persons”) against, and shall hold each of them harmless from and against, any claim, action, suit or proceeding made by any non-Affiliated third party, including without limitation any Educational Agency or any student (a “Third-Party Claim”), against a Client Indemnified Person in respect of, arising out of or in connection with: (i) any inaccuracy in or breach of a representation or warranty made by Provider in this Agreement, or any failure by Provider to perform any covenant, agreement, or obligation to be performed by Provider pursuant to this Agreement, including) any failure by Provider to comply with Applicable Law, including any Educational Law, in the performance of its obligations under this Agreement, (ii) Provider’s and its Affiliates’ conduct of business activities that are unrelated to the activities contemplated by this Agreement; and (iii) any fraud, gross negligence, or willful misconduct by Provider or any of its officers, directors, employees, or agents, and (b) indemnify and hold harmless any such Client Indemnified Person from and against (i) any final award of damages paid to the third party initiating the Third-Party Claim against such Client Indemnified Person, or (ii) any settlement amount agreed to by Provider in writing and paid to the third party initiating the Third-Party Claim. In the event of a Third-Party Claim arising out of a breach of Section 8.4 (Non-Infringement by Provider), Provider has the right, at Provider’s sole option and expense, to either (A) procure the right for Client to continue using the allegedly infringing Provider Supplied Item, or (B) replace or modify the allegedly infringing Provider Supplied Item with a replacement that is substantially similar and that Provider believes would not infringe or misappropriate any third party’s Intellectual Property Rights. If Provider deems (A) or (B) not feasible or not commercially reasonable, Provider has the right to terminate the rights and licenses granted to Client with respect to that Provider Supplied Item, provided that the termination of such rights and licenses to that Provider Supplied Item shall not be deemed to relieve Provider, in whole or in part, of its obligations to perform the Services under this Agreement. Upon any such termination, Client shall cease all use of the Provider Supplied Item. THE TERMS IN THIS SECTION 9.1 (INDEMNIFICATION OF CLIENT) SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF AN IP CLAIM.
Appears in 2 contracts
Sources: Strategic Services Agreement (Zovio Inc), Asset Purchase and Sale Agreement (Zovio Inc)
Indemnification of Client. Subject Sigga agrees to indemnify, defend and hold harmless CLIENT (including the terms officers, directors and conditions of employees thereof) from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees), expenses and damages resulting from any claim by any third party that the SOFTWARE provided by Sigga pursuant to this Agreement infringes or misappropriates, as applicable, third party’s patent rights, or such third party’s copyrights or trade secret rights under applicable laws provided that, notwithstanding the foregoing, Sigga shall have no obligation under this Section 9, Provider, on its own behalf and on behalf of its successors and assigns, agrees to 11.1 if (a) indemnify and defend Client, DigiCat, and their respective Affiliates, successors and assigns (the “Client Indemnified Persons”) against, and shall hold each of them harmless from and against, any claim, action, suit or proceeding made by any non-Affiliated third party, including without limitation any Educational Agency or any student (a “Third-Party Claim”), against a Client Indemnified Person in respect of, arising out of or in connection with: (i) any inaccuracy in or breach of a representation or warranty made by Provider in this Agreement, or any failure by Provider to perform any covenant, agreement, or obligation to be performed by Provider pursuant to this Agreement, including) any failure by Provider to comply with Applicable Law, including any Educational Law, in the performance of its obligations under this Agreement, (ii) Provider’s and its Affiliates’ conduct of business activities that are unrelated to the activities contemplated by this Agreement; and (iii) any fraud, gross negligence, or willful misconduct by Provider or any of its officers, directors, employees, or agents, and (b) indemnify and hold harmless any such Client Indemnified Person from and against (i) any final award of damages paid to extent the third party initiating the Third-Party Claim against such Client Indemnified Person, or (ii) any settlement amount agreed to by Provider in writing and paid to the third party initiating the Third-Party Claim. In the event of a Third-Party Claim arising out of a breach of Section 8.4 (Non-Infringement by Provider), Provider has the right, at Provider’s sole option and expense, to either (A) procure the right for Client to continue using the allegedly infringing Provider Supplied Item, or (B) replace or modify the allegedly infringing Provider Supplied Item with a replacement that is substantially similar and that Provider believes would not infringe or misappropriate any third party’s Intellectual Property Rights. If Provider deems (A) or (B) not feasible or not commercially reasonable, Provider has the right to terminate the rights and licenses granted to Client with respect to that Provider Supplied Item, provided that the termination of such rights and licenses to that Provider Supplied Item shall not be deemed to relieve Provideralleged infringement arises, in whole or in part, due to a modification of its obligations to perform the Services SOFTWARE by CLIENT that is not allowed under this Agreement; or (b) if such alleged infringement arises, in whole or in part, due to the Third Party Software; or (c) if such alleged infringement arises, in whole or in part,
c) After the expiration of the term of 180 (one hundred and eighty) days set forth in item 4.5 for the CLIENT to implement the applicable updates and upgrades and the infringement could have been avoided by CLIENT using the latest version of the SOFTWARE. Upon As a condition of ▇▇▇▇▇’s obligations under this Section 11.1, if any claim for which indemnity is or may be sought hereunder is made or appears reasonably possible, CLIENT agrees (1) to promptly to notify Sigga in writing; (2) to cooperate with ▇▇▇▇▇, and to allow Sigga sole authority to control the defense and settlement of such claim, provided that ▇▇▇▇▇ shall not settle any claim or action on CLIENT’s behalf without CLIENT’s prior written permission, which shall not be unreasonably withheld; and (3) to permit Sigga, at Sigga’s sole discretion, to enable CLIENT to continue to use the SOFTWARE, or to modify or replace any such terminationinfringing material to make it non-infringing, Client shall provided that, such modification provides CLIENT with substantially similar functionality, except that, if Sigga determines that none of the foregoing alternatives is reasonably available, CLIENT shall, upon written request from Sigga, cease all use of such materials as are the Provider Supplied Itemsubject of the relevant infringement claim and receive from Sigga, as a pre-liquidated damages for the damages suffered by CLIENTS hereunder, a pro rata refund of the applicable fees, not to exceed the total amount of all fees then-paid to Sigga by CLIENT under Section 7, within thirty (30) days from the receipt by the CLIENT of such written request. THE TERMS IN THIS SECTION 9.1 (INDEMNIFICATION OF CLIENT may also employ separate counsel to provide input into the defense of any indemnification claim under this Section, at CLIENT) SHALL BE ’s own cost. This Section 11.1 states Sigga entire obligations and CLIENT’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF AN IP CLAIM’s sole remedy with respect to any third-party claim of infringement brought against CLIENT.
Appears in 1 contract
Sources: Master Software Agreement
Indemnification of Client. Subject to the terms and conditions of this Section 9, Provider, on its own behalf and on behalf of its successors and assigns, DALECHEK agrees to (a) indemnify indemnify, defend, and defend hold harmless Client, DigiCatits Affiliates, and each of their respective Affiliatesdirectors, successors and assigns (the “Client Indemnified Persons”) againstofficers, employees, and shall hold each of them harmless agents, from and againstagainst any and all judgments, settlements, penalties, costs and expenses (including reasonable attorney's fees) paid or incurredin connection with any claimthird-party claim(s) relating to: the infringement or misappropriation of any valid third-party intellectual property rights by ▇▇▇▇▇▇▇▇ in connection with its performance of the Services; provided, actionhowever, suit or proceeding that in the event any such claim is made by any non-Affiliated third party, including without limitation any Educational Agency or any student (a “Third-Party Claim”), against a Client Indemnified Person in respect of, arising out of or in connection with: (i) any inaccuracy in or breach of a representation or warranty made by Provider in this Agreement, or any failure by Provider to perform any covenant, agreement, or obligation to be performed by Provider party pursuant to this Agreementthe foregoing, including) any failure by Provider to comply with Applicable Law, including any Educational Law, in the performance of its obligations under this Agreement, (ii) Provider’s and its Affiliates’ conduct of business activities that are unrelated to the activities contemplated by this Agreement; and (iii) any fraud, gross negligence, or willful misconduct by Provider or any of its officers, directors, employees, or agents, and (b) indemnify and hold harmless any such Client Indemnified Person from and against (i) any final award of damages paid to the third party initiating the Third-Party Claim against such Client Indemnified Person, or (ii) any settlement amount agreed to by Provider in writing and paid to the third party initiating the Third-Party Claim. In the event of a Third-Party Claim arising out of a breach of Section 8.4 (Non-Infringement by Provider), Provider has DALECHEK shall have the right, at Provider’s its sole option and expenseas Client’s sole matter of recourse in respect thereof, to either (Aa) modify the Services to make them non-infringing or (b) procure the right for Client to continue using receiving the allegedly infringing Provider Supplied ItemServices as provided in the Agreement, or (B) replace or modify the allegedly infringing Provider Supplied Item with a replacement provided further that is such modified Services provide substantially similar functionality and that Provider believes would not infringe or misappropriate any third party’s Intellectual Property Rightsotherwise comply with the terms of this Agreement. If Provider DALECHEK deems (Aa) or (Bb) not feasible or not commercially reasonable, Provider DALECHEK has the right to terminate the rights and licenses granted applicable Service Agreement. In the event of any such termination, DALECHEK will refund to Client with respect to that Provider Supplied Itemthe unused portion of any amounts paid by Client for the affected Service. In addition, provided that the termination of such rights and licenses to that Provider Supplied Item shall not be deemed to relieve Provider, in whole or in part, of its obligations to perform the Services under this Agreement. Upon upon any such termination, Client shall cease all the use of the Provider Supplied Itemapplicable Service. THE TERMS IN THIS SECTION 9.1 Notwithstanding any language to the contrary, DALECHEK shall have no obligation with respect to any claims of infringement that arise from: (INDEMNIFICATION OF CLIENTi) SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF AN IP CLAIMmodifications to the Services (other than by or on behalf of DALECHEK); (ii) combinations of the Services with other software or products not provided or authorized by DALECHEK; (iii) any modifications to the Services made at Client's request if such claim would not have occurred but for the requested modification; (iv) any unauthorized use of the Services by Client or otherwise under Client's account; (v) any Products; (vi) Client's breach of, or failure to perform under, the Agreement; or (vii) Client’s gross negligence or willful misconduct.
Appears in 1 contract
Sources: General Terms and Conditions