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(iv) Customer's distribution, marketing, or use of the deliverables for the benefit of any third party; or
<br />(v) the combination of the deliverables with materials not provided by Customer.
<br />ePlus agrees to:
<br />(vii) promptly notify Customer of any third party claim subject to indemnification hereunder,
<br />(viii) give Customer the right to control and direct, at Customer's expense, the preparation of a defense, the
<br />defense, and any settlement of any such claim on terms reasonably acceptable to ePlus; and
<br />(ix) give full cooperation to Customer, at Customer's expense, for the defense of same.
<br />D. In the event that Customer provides ePlus with access to computer programs, specifications, content or
<br />other Customer-provided materials ("Customer Materials"), Customer hereby agrees to indemnify, hold
<br />harmless and defend ePlus from and against any and all Liabilities incurred by or asserted against ePlus in
<br />connection with any third party claim to the extent such Liabilities result from the infringement of any
<br />third party's trade secret, trademark, copyright or patent rights,.
<br />E. Customer will honor all indemnity provisions under the Agreement only to the maximum extent permitted
<br />by applicable law. No section of the Agreement is intended to create a waiver of Customer's rights or
<br />privileges as a sovereign entity.
<br />F. ePlus shall indemnify and hold harmless the Customer, its agents, employees and officers against all
<br />losses, damages, reasonable and necessary expenses, including reasonable attorney fees ("Liabilities")
<br />which may result in any way from any negligent or wrongful act or omission of ePlus, its agents,
<br />employees and subcontractors. ePlus shall indemnify and hold harmless the Customer its agents,
<br />employees and officers, against Liabilities asserted against Customer by a third party to the extent the
<br />Liabilities result from the infringement of the Work Product upon any third party's patent of the United
<br />States issued as of the Effective Date of this Agreement, or any trademark, service mark, copyright or
<br />other proprietary right (collectively "Intellectual Property Right"); provided that Customer:
<br />(i) promptly notifies ePlus of any third party claim subject to indemnification hereunder;
<br />(ii) gives ePlus the right to control and direct the preparation of a defense, the defense and any settlement
<br />of any such claim;
<br />(iii) gives full cooperation to ePlus for the defense of the same; and
<br />(iv) complies with ePlus' direction to cease any use of the Work Product which , in ePlus' sole judgment ,
<br />is likely to be ruled an infringement of a third party's intellectual property right.
<br />The foregoing provisions shall not apply to any infringement arising out of:
<br />(v) use of the Work Product other than in accordance with applicable documentation or modification or
<br />revision of the Work Product not expressly authorized in writing by ePlus;
<br />(vi) Customer's failure to use or implement corrections or enhancements to the Work Product made
<br />available by ePlus;
<br />(vii) Customer's distribution, marketing , or use of the Work Product for benefit of third parties;
<br />(viii) the combination of the Work Product with materials not supplied by ePlus; or
<br />(ix) information materials or specifications provided by or on behalf of Customer or by a third party.
<br />With respect to any Products or materials supplied by ePlus to Customer hereunder, and to the extent that
<br />ePlus is not the manufacturer of any hardware or so8ware products that the Customer uses or may need to
<br />purchase as a result of or relating to ePlus Services, ePlus does not provide any indemnification on
<br />products which it does not manufacture. Any such indemnification must come directly from the
<br />manufacturer.
<br />G. In case any of the indemnified Work Product or any portion thereof is held, or in ePlus' reasonable
<br />opinion is likely to be held, in any such suit to constitute infringement, ePlus may within a reasonable
<br />time, at its option, either: (i) secure for Customer the right to continue the use of such infringing item;
<br />or (ii) replace, at ePlus' sole expense, such item with a substantially equivalent non-infringing item or
<br />modify such item so that it becomes non-infringing. In the event ePlus is, in its reasonable discretion,
<br />unable to either procure the right to continued use of the allegedly infringing item or replace the allegedly
<br />infringing item, as provided in clauses (i) and (ii) of the immediately preceding sentence, the allegedly
<br />infringing item shall be returned to ePlus, and ePlus' maximum liability for such infringement shall be to
<br />©2010 ePlus Technology, inc.
<br />09/01/10
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