Common use of Provider Indemnification Clause in Contracts

Provider Indemnification. ‌ (i) Provider shall indemnify, defend, and hold Customer harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees ("Losses"), incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Cloud Services, or any use of the Cloud Services in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights, provided that Customer promptly notifies Provider in writing of the Third-Party Claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Third-Party Claim. (ii) If Customer is enjoined from using the Cloud Services as a result of a Third- Party Claim, Customer agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Cloud 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 10(a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Cloud Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. (iii) This Section 10(a) will not apply to the extent that any such Third-Party Claim arises from Customer Data or Third-Party Products or any modifications or use of the Cloud Services that is not authorized or directed by Provider. (iv) THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND LICENSOR'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

Provider Indemnification. ‌ (i) Provider shall indemnify, defend, and hold Customer harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees ("Losses"), incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Cloud Services, or any use of the Cloud Services in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights, provided that Customer promptly notifies Provider in writing of the Third-Party Claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Third-Party Claim. (ii) If Customer such a Third-Party Claim is enjoined from using the Cloud Services as made or Provider reasonably anticipates such a result of a Third- Third-Party ClaimClaim will be made, Customer agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Cloud 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, and will refund you the unused portion of the Fees you have paid for the Cloud Services. This Section 10(a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Cloud Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. (iii) This Section 10(a) will not apply to the extent that any such Third-Party Claim arises from Customer Data or Third-Party Products or any modifications or use of the Cloud Services that is not authorized or directed by ProviderProducts. (iv) THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND LICENSOR'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

Provider Indemnification. ‌ (i) Provider shall indemnify, defend, and hold Customer harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees ("Losses"), incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Cloud Services, or any use of the Cloud Services in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rightsUS patents, copyrights, or trade secrets, provided that Customer promptly notifies Provider in writing of the Third-Party Claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Third-Party Claim. (ii) If Customer such a Third-Party Claim is enjoined from using the Cloud Services as made or either party reasonably anticipates such a result of a Third- Third-Party ClaimClaim will be made, Customer agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Cloud 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 commercially or 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 10(a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Cloud Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. (iii) This Section 10(a) will not apply to the extent that any such Third-Third- Party Claim arises from Customer Data or Third-Party Products or any modifications or use of the Cloud Services that is not authorized or directed by ProviderProducts. (iv) THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND LICENSOR'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

Provider Indemnification. ‌ (i) Provider shall indemnify, defend, indemnify and hold Customer harmless from and against any and all lossesdamages arising out of third party claims alleging that the Subscription when used as authorized under this Agreement infringes a patent, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costscopyright, or expenses of whatever kindtrademark, including costs awarded or agreed in settlement by Provider (including reasonable attorneys' fees ("Losses"), incurred by Customer ’ 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 claim, suit, action, or proceeding ("Third-Party Claim") that code contained within the Cloud Services, or any use of the Cloud Services in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights, provided that Customer promptly notifies Provider in writing of the Third-Party Claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Third-Party Claim. (ii) If Customer is enjoined from using the Cloud Services as a result of a Third- Party Claim, Customer agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Cloud Services, or component or part thereof, to make it non-infringing, Subscription; or (Bvi) obtain the right for if Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety settles or makes any admissions with respect to the affected component or part, effective immediately on a claim without Provider’s prior written notice to Customerconsent. This Section 10(a)(ii) 9.0 sets forth your sole remedies Provider’s and our its Licensor’s sole liability and obligation for Customer’s sole and exclusive remedy with respect to any actual, threatened, or alleged Third-Party Claims that the Cloud Services infringe, misappropriate, or otherwise violate any claim of intellectual property rights of any third partyinfringement . (iii) This Section 10(a) will not apply to the extent that any such Third-Party Claim arises from Customer Data or Third-Party Products or any modifications or use of the Cloud Services that is not authorized or directed by Provider. (iv) THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND LICENSOR'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

Provider Indemnification. ‌ (i) Provider shall indemnify, defend, and hold harmless Customer harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' legal fees ("“Losses"”), incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("“Third-Party Claim"”) that the Cloud Services, or any use of the Cloud Services in accordance with this Agreement, infringes or misappropriates such third party's ’s Canadian intellectual property rights, ; provided that Customer promptly notifies Provider in writing of the Third-Party Claim, cooperates with Provider, and allows Provider sole authority to control the defense defence and settlement of such Third-Party Claim. (ii) If Customer such a Third-Party Claim is enjoined from using the Cloud Services as made or Provider reasonably anticipates such a result of a Third- Third-Party ClaimClaim will be made, Customer agrees to permit Provider, at Provider's ’s sole discretion, to (A) modify or replace the Cloud 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 10(a)(ii11(a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Cloud Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. (iii) This Section 10(a11(a) will not apply to the extent that any such Third-Party Claim arises from Customer Data or Third-Party Products or any modifications or use of the Cloud Services that is not authorized or directed by ProviderProducts. (iv) THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND LICENSOR'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

Provider Indemnification. ‌ Subject to Section 9 above, Provider will defend you from any written claim or legal proceedings brought by a third party (i) Provider shall indemnifyeach, defenda “Claim”), and indemnify and hold Customer you harmless from and against any and all lossesthe resulting liabilities, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or and expenses of whatever kind, (including reasonable attorneys' fees ’ fees) ("Losses"“Liabilities”), incurred by Customer resulting from to the extent such Claim alleges that the Services infringe any third-party claimUnited States patent, suit, actionregistered trademark, or proceeding ("Third-Party Claim") copyright or that the Cloud Services, or any use of the Cloud Services in accordance with this Agreement, infringes or misappropriates Provider misappropriated such third party's intellectual property rights, provided that Customer promptly notifies Provider ’s trade secrets enforceable in writing the United States in the development of the Third-Party ClaimServices. If a Claim is made or appears likely to occur, cooperates with Providerthen Provider may, and allows Provider sole authority to control the defense and settlement of such Third-Party Claim. (ii) If Customer is enjoined from using the Cloud Services as a result of a Third- Party Claim, Customer agrees to permit Provider, at Provider's in its sole discretion, (a) procure for you the right to continue using the Services; (Ab) replace or modify or replace the Cloud Services, or component or part thereof, to make it non-Services so that they are not infringing, ; or (Bc) 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 Agreement with respect to the affected component or partinfringing portion of the Services and refund any prepaid, effective immediately on written notice to Customerunused fees for such portion of the Services from the date of termination through the end of the prepaid subscription period. This Section 10(a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Cloud Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. (iii) This Section 10(a) 10.1 will not apply to the extent that any such Third-Party Claim the alleged infringement arises from Customer Data from: (A) use of the Services against Provider’s written instructions; (B) modifications to the Services not made by Provider; (C) Your Content or Third-Party Products Content; (D) Free Services, Beta Services, or any modifications or Third-Party Services; (E) your continued use of the Cloud Services after notice of allegedly infringing material or being informed of modifications that is not authorized would have avoided the alleged infringement in whole or directed by Provider. in part; and (ivF) your illegal conduct or breach of this Agreement. THIS SECTION 10 SETS FORTH CUSTOMER10.1 DESCRIBES PROVIDER’S SOLE REMEDIES ENTIRE LIABILITY TO YOU AND LICENSOR'S SOLE LIABILITY AND OBLIGATION YOUR EXCLUSIVE REMEDY FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGESSERVICES INFRINGE, MISAPPROPRIATES, MISAPPROPRIATE OR OTHERWISE VIOLATES VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

Provider Indemnification. ‌ (i) Provider shall indemnify, defend, and hold Customer harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' ’ fees ("“Losses"”), incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("“Third-Party Claim"”) that the Cloud Services, or any use of the Cloud Services in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights’s patents, copyrights, or trade secrets, provided that Customer promptly notifies Provider in writing of the Third-Party Claim, cooperates with Provider, and allows Provider sole authority to control the defense against and settlement of such Third-Party Claim. (ii) If Customer such a Third-Party Claim is enjoined from using the Cloud Services as made or either party anticipates such a result of a Third- Third-Party ClaimClaim will be made, Customer agrees to permit Provider, at Provider's ’s sole discretion, to (A) modify or replace the Cloud 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 10(a)(ii9(a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Cloud Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. (iii) This Section 10(a9(a) will not apply to the extent that (i) any such Third-Party Claim arises from Customer Data or Third-Party Products or any modifications Products, (ii) the Third-Party Claim is attributable to possession or use of the Cloud Services that is or any part thereof by Customer other than in accordance with this Agreement, (iii) the Third-Party Claims relates to use of the Services with any hardware or software not authorized supplied, specified, or directed approved in writing by Provider. , and/or (iv) THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND LICENSOR'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTYthe Third-Party Claim relates to the use of the Services in an out-of-date version.

Provider Indemnification. ‌ (i) Provider shall indemnify, defend, and hold Customer harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' ’ fees ("“Losses"”), incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("“Third-Party Claim"”) that the Cloud ServicesCloudStream, or any use of the Cloud Services CloudStream in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights’s patents, copyrights, or trade secrets, provided that Customer promptly notifies Provider in writing of the Third-Party Claim, cooperates with Provider, and allows Provider sole authority to control the defense against and settlement of such Third-Party Claim. (ii) If Customer such a Third-Party Claim is enjoined from using the Cloud Services as made or either party anticipates such a result of a Third- Third-Party ClaimClaim will be made, Customer agrees to permit Provider, at Provider's ’s sole discretion, to (A) modify or replace the Cloud ServicesCloudStream, 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 10(a)(ii13(a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Cloud Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. (iii) This Section 10(a13(a) will not apply to the extent that (i) any such Third-Party Claim arises from Customer Data or Third-Party Products or any modifications Products, (ii) the Third-Party Claim is attributable to possession or use of the Cloud Services that is not authorized CloudStream or directed any part thereof by Provider. (iv) THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND LICENSOR'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.Customer other than in accordance with this Agreement,

Provider Indemnification. ‌ (i) Provider shall indemnify, defend, and hold Customer harmless Podcaster from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, costs (including reasonable attorneys' fees fees) ("Losses"), ) incurred by Customer Podcaster resulting from any third-third party claim, suit, action, or proceeding ("Third-Third Party Claim") that the Cloud Services, or any use of the Cloud Services in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights/US patents, copyrights, or trade secrets, provided that Customer Podcaster promptly notifies Provider in writing of the Third-Party Claimclaim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Third-Party Claim. (ii) If Customer is enjoined from using the Cloud Services as a result of a Third- Party Claimclaim. Podcaster Indemnification. Podcaster shall indemnify, Customer agrees to permit Providerhold harmless, and, at Provider's sole discretionoption, to (A) modify or replace defend Provider from and against any Losses resulting from any Third Party Claim that the Cloud ServicesPodcaster IP, or component or part thereof, to make it non-infringing, or (B) obtain any use of the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate Podcaster IP in accordance with this Agreement, in its entirety infringes or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 10(a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Cloud Services infringe, misappropriate, or otherwise violate any 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 any third party. the Services in a manner not authorized by this Agreement; (iii) This Section 10(a) will not apply to the extent that any such Third-Party Claim arises from Customer Data or Third-Party Products or any modifications or use of the Cloud Services that is in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or directed by Provider. (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 CUSTOMERPODCASTER’S SOLE REMEDIES AND LICENSORPROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGESSERVICES INFRINGE, MISAPPROPRIATESMISAPPROPRIATE, OR OTHERWISE VIOLATES 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 (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) 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 (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED TWO (2) TIMES THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Provider Indemnification. ‌ (i) i. Provider shall indemnify, defend, and hold harmless Customer harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses direct damages ordered by a court of whatever kind, including reasonable attorneys' fees ("Losses"), incurred by Customer resulting competent jurisdiction to the extent they result from any third-party claim, suit, action, or proceeding ("Third-Party Claim") by a third party that the Cloud Services, or any Customer’s use of the Cloud Licensed Software or Subscription Services in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights’s copyright, provided patent or trade secret rights in the United Kingdom, on the conditions that Customer promptly notifies Provider in writing of the Third-Party Claimclaim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Third-Party Claim. (ii) If Customer is enjoined from using claim. Nothing in this clause 10 shall restrict or limit the Cloud Services Customer’s general obligation at law to mitigate any loss it suffers or incurs as a result of an event that might give rise to a Third- Party Claimclaim under this indemnity. ii. 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 Cloud ServicesLicensed Software or Subscription Services (as applicable), 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. iii. This Section 10(a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Cloud Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. (iii) This Section 10(a) 10 will not apply to the extent that any such Third-Party Claim the alleged infringement arises from Customer Data or Third-Party Products or any modifications or from: (A) use of the Cloud Services that is in combination with any data, software, hardware, equipment, network, system, or technology not provided by Provider or authorized by Provider in writing; (B) modifications or directed alterations to the Licensed Software or Subscription Services (as applicable) not made by Provider; (C) Customer’s continued use of the Licensed Software or Subscription Services (as applicable) after Provider notifies Customer to discontinue use because of an infringement claim; or (D) Customer Data. (iv) THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND LICENSOR'S SOLE . THE FOREGOING STATES THE ENTIRE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT OF PROVIDER WITH RESPECT TO THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE LICENSED SOFTWARE, SUBSCRIPTION SERVICES OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF ANY THIRD PARTYPROVIDER WITH RESPECT THERETO.

Provider Indemnification. ‌ (i) Provider shall indemnify, defend, indemnify and hold Customer harmless from and against any and all lossesdamages arising out of third party claims alleging that the Subscription when used as authorized under this Agreement infringes a patent, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costscopyright, or expenses of whatever kindtrademark, including costs awarded or agreed in settlement by Provider (including reasonable attorneys' fees ("Losses"), incurred by Customer ’ 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 claim, suit, action, or proceeding ("Third-Party Claim") that code contained within the Cloud Services, or any use of the Cloud Services in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights, provided that Customer promptly notifies Provider in writing of the Third-Party Claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Third-Party Claim. (ii) If Customer is enjoined from using the Cloud Services as a result of a Third- Party Claim, Customer agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Cloud Services, or component or part thereof, to make it non-infringing, Subscription; or (Bvi) obtain the right for if Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety settles or makes any admissions with respect to the affected component or part, effective immediately on a claim without Provider’s prior written notice to Customerconsent. This Section 10(a)(ii) 9.0 sets forth your sole remedies Provider’s and our its Licensor’s sole liability and obligation for Customer’s sole and exclusive remedy with respect to any actual, threatened, or alleged Third-Party Claims that the Cloud Services infringe, misappropriate, or otherwise violate any claim of intellectual property rights of any third partyinfringement. (iii) This Section 10(a) will not apply to the extent that any such Third-Party Claim arises from Customer Data or Third-Party Products or any modifications or use of the Cloud Services that is not authorized or directed by Provider. (iv) THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND LICENSOR'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

Provider Indemnification. ‌ (i) Provider shall indemnify, defend, and hold harmless Customer harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, costs (including reasonable attorneys' fees fees) ("Losses"), ) incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Cloud Services, or any use of the Cloud Services in accordance with this S-a-a-S Agreement, infringes or misappropriates such third party's intellectual property rightsUS patents, copyrights, or trade secrets, provided that Customer promptly notifies Provider in writing of the Third-Party Claimclaim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Third-Party Claim. (ii) claim. If Customer such a claim is enjoined from using the Cloud Services as a result of a Third- Party Claimmade or appears possible, Customer agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Cloud 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 S-a-a-S Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 10(a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Cloud Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. (iii) This Section 10(a9(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 arises from Customer Data or Third-Party Products or any modifications or use to participate in the defense thereof by counsel of the Cloud Services that is not authorized or directed by Provider. (iv) its own choice. Sole Remedy. THIS SECTION 10 SETS FORTH CUSTOMER’S 'S SOLE REMEDIES AND LICENSORPROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGESSERVICES INFRINGE, MISAPPROPRIATESMISAPPROPRIATE, OR OTHERWISE VIOLATES 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) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) 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 (INCLUDING 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. Term and Termination.