Common use of PROJECT TOOLS Clause in Contracts

PROJECT TOOLS. ‌ In this clause, a reference to: the customer shall include the customer's affiliates, and the provisions of this clause shall be for the benefit of the customer and each such affiliate, and shall be enforceable by each such affiliate, in addition to the customer; and the software is a reference to the software in its current state of development at the time when any relevant claim is made. The supplier shall indemnify the customer against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other [reasonable] professional costs and expenses) suffered or incurred by the customer arising out of or in connection with any claim made against the customer for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the use of any software or receipt of the benefit of any of the services. This indemnity shall not apply if the customer has been negligent or at fault. If any third party makes a claim, or notifies an intention to make a claim, against the customer which may reasonably be considered likely to give rise to a liability under this indemnity (a claim), the customer shall: as soon as reasonably practicable, give written notice of the claim to the supplier, specifying the nature of the claim in reasonable detail; not make any admission of liability, agreement or compromise in relation to the claim without the prior written consent of the supplier (such consent not to be unreasonably conditioned, withheld or delayed), provided that the customer may settle the claim (after giving prior written notice of the terms of settlement (to the extent legally possible) to the supplier, but without obtaining the supplier's consent) if the customer reasonably believes that failure to settle the claim would be prejudicial to it in any material respect; give the supplier access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the customer, so as to enable the supplier and its professional advisers to examine them and to take copies (at the supplier's expense) for the purpose of assessing the claim; and subject to the supplier providing security to the customer to the customer's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, take such action as the supplier may reasonably request to avoid, dispute, compromise or defend the claim. The supplier shall not in any circumstances have any liability for any claim of infringement of intellectual property rights caused by: the customer's use of the software in combination with software not supplied or approved in writing by the supplier (other than the operating system of the business systems, provided that the supplier was notified in writing of the identity of such operating system before this agreement was entered into); any unauthorised modification of the software made by, or on behalf of, the customer; the customer's use of any version of the software other than the latest version supplied by the supplier, if such claim could have been avoided by the use of such supplied version; the supplier's incorporation into the software of a feature expressly requested by the customer and not in accordance with the agile process or the agile change control process; or the supplier's use in connection with the project of any software, material, information, data, know-how, instructions or scripts provided by the customer or any of its affiliates that contain any s or omissions. If use of the supplier software or receipt of the benefit of the services becomes or, in the opinion of qualified legal counsel, is likely to become, the subject of any such claim, the supplier may: replace all or part of the software with functionally equivalent software or documents without any charge to the customer. Modify the software as necessary to avoid such claim, provided that the software (as amended) functions in substantially the same way as the software before modification; and procure for the customer a license from the relevant claimant to continue using the software, and in the case of clause 6.6(a) or clause 6.6(b) only, the supplier shall reimburse the customer all reasonable additional costs and expenses that they are required to incur in order to obtain software and hardware required to interact with such modified or replaced software and documents, and additional services from third parties, all of which would not have been incurred if the software had been non-infringing. If the software is determined in a court of law to be infringing the supplier is advised by a barrister of at least ten years' call that use or possession by the customer of the software in accordance with this agreement is likely to constitute infringement of a third party's rights; or if an injunction or similar order is granted in connection with any claim within the scope of clause 6.2 which prevents or restricts the use or possession by the customer of the software in accordance with this agreement; and the supplier is unable, after its best endeavors, to procure for the customer the right to continue using the software, or to provide the customer with functionally equivalent non- infringing software, this agreement shall be terminated, without prejudice to the customer's right to seek further remedies, including damages, for any loss or damage arising out of such termination. If a payment due from the supplier under this clause is subject to tax (whether by way of direct assessment or withholding at its source), the customer shall be entitled to receive from the supplier such amounts as shall ensure that the net receipt, after tax, to the customer in respect of the payment is the same as it would have been were the payment not subject to tax. Nothing in this clause shall restrict or limit the customer's general obligation at law to mitigate a loss it may suffer or incur because of an event that may give rise to a claim under this indemnity.

PROJECT TOOLS. ‌ 6.1 In this clause, a reference to: : (a) the customer Customer shall include the customerCustomer's affiliatesAffiliates, and the provisions of this clause shall be for the benefit of the customer Customer and each such affiliateAffiliate, and shall be enforceable by each such affiliateAffiliate, in addition to the customerCustomer; and and (b) the software Software is a reference to the software Software in its current state of development at the time when any relevant claim Claim is made. . 6.2 The supplier Supplier shall indemnify the customer Customer against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other [reasonable] professional costs and expenses) suffered or incurred by the customer Customer arising out of or in connection with any claim made against the customer Customer for actual or alleged infringement of a third party's intellectual property rights Intellectual Property Rights arising out of or in connection with the use of any software Software or receipt of the benefit of any of the services. Services. 6.3 This indemnity shall not apply if the customer Customer has been negligent or at fault. . 6.4 If any third party makes a claim, or notifies an intention to make a claim, against the customer Customer which may reasonably be considered likely to give rise to a liability under this indemnity (a claimClaim), the customer Customer shall: : (a) as soon as reasonably practicable, give written notice of the claim Claim to the supplierSupplier, specifying the nature of the claim Claim in reasonable detail; ; (b) not make any admission of liability, agreement or compromise in relation to the claim Claim without the prior written consent of the supplier Supplier (such consent not to be unreasonably conditioned, withheld or delayed), provided that the customer Customer may settle the claim Claim (after giving prior written notice of the terms of settlement (to the extent legally possible) to the supplierSupplier, but without obtaining the supplierSupplier's consent) if the customer Customer reasonably believes that failure to settle the claim Claim would be prejudicial to it in any material respect; ; (c) give the supplier Supplier access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the customerCustomer, so as to enable the supplier Supplier and its professional advisers to examine them and to take copies (at the supplierSupplier's expense) for the purpose of assessing the claimClaim; and and (d) subject to the supplier Supplier providing security to the customer Customer to the customerCustomer's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, take such action as the supplier Supplier may reasonably request to avoid, dispute, compromise or defend the claim. Claim. 6.5 The supplier Supplier shall not in any circumstances have any liability for any claim of infringement of intellectual property rights Intellectual Property Rights caused by: : (a) the customerCustomer's use of the software Software in combination with software not supplied or approved in writing by the supplier Supplier (other than the operating system of the business systemsBusiness Systems, provided that the supplier Supplier was notified in writing of the identity of such operating system before this agreement was entered into); ; (b) any unauthorised modification of the software Software made by, or on behalf of, the customer; Customer; (c) the customerCustomer's use of any version of the software Software other than the latest version supplied by the supplierSupplier, if such claim could have been avoided by the use of such supplied version; ; (d) the supplierSupplier's incorporation into the software Software of a feature expressly requested by the customer Customer and not in accordance with the agile process Agile Process or the agile change control processAgile Change Control Process; or or (e) the supplierSupplier's use in connection with the project Project of any software, material, information, data, know-how, instructions or scripts provided by the customer Customer or any of its affiliates Affiliates that contain any s or omissions. . 6.6 If use of the supplier software Supplier Software or receipt of the benefit of the services Services becomes or, in the opinion of qualified legal counsel, is likely to become, the subject of any such claim, the supplier Supplier may: : (a) replace all or part of the software Software with functionally equivalent software or documents without any charge to the customer. Modify Customer; (b) modify the software Software as necessary to avoid such claim, provided that the software Software (as amended) functions in substantially the same way as the software Software before modification; and and (c) procure for the customer Customer a license licence from the relevant claimant to continue using the softwareSoftware, and in the case of clause 6.6(a) or clause 6.6(b) only, the supplier Supplier shall reimburse the customer Customer all reasonable additional costs and expenses that they are required to incur in order to obtain software and hardware required to interact with such modified or replaced software and documents, and additional services from third parties, all of which would not have been incurred if the software Software had been non-infringing. If . 6.7 If: (a) the software Software is determined in a court of law to be infringing infringing; (b) the supplier Supplier is advised by a barrister of at least ten years' call that use or possession by the customer Customer of the software Software in accordance with this agreement is likely to constitute infringement of a third party's rights; or or (c) if an injunction or similar order is granted in connection with any claim within the scope of clause 6.2 which prevents or restricts the use or possession by the customer Customer of the software Software in accordance with this agreement; and the supplier Supplier is unable, after its best endeavorsendeavours, to procure for the customer Customer the right to continue using the softwareSoftware, or to provide the customer Customer with functionally equivalent non- infringing software, this agreement shall be terminated, without prejudice to the customerCustomer's right to seek further remedies, including damages, for any loss or damage arising out of such termination. . 6.8 If a payment due from the supplier Supplier under this clause is subject to tax (whether by way of direct assessment or withholding at its source), the customer Customer shall be entitled to receive from the supplier Supplier such amounts as shall ensure that the net receipt, after tax, to the customer Customer in respect of the payment is the same as it would have been were the payment not subject to tax. . 6.9 Nothing in this clause shall restrict or limit the customerCustomer's general obligation at law to mitigate a loss it may suffer or incur because as a result of an event that may give rise to a claim under this indemnity.