|
DocuSign Envelope ID:77803446-26E8-4424-B3DD-15F947931AE8
<br /> 4.10 Performance of Services. BCS represents Indemnified Party to participate in such settlement or
<br /> and warrants that all services provided by BCS to defense through counsel chosen by Indemnified Party,
<br /> Licensee, if any, (including without limitation any provided that the fees and expenses of any such
<br /> installation, support, training, and Maintenance counsel so chosen by Indemnified Party shall be borne
<br /> Services) will be performed in a timely, competent, by Indemnified Party,and(ii)Indemnifying Party shall
<br /> professional,and workmanlike manner,using qualified promptly reimburse Indemnified Party for the full
<br /> employees in conformity with industry best practices. amount of any loss resulting from such claim and all
<br /> In the event that BCS will be providing development related expense incurred by Indemnified Party. So
<br /> services, such services shall be performed pursuant to long as Indemnifying Party is reasonably contesting
<br /> the terms of a Development Schedule in Exhibit B. any such claim in good faith, Indemnified Party shall
<br /> not pay or settle any such claim. If Indemnifying Party
<br /> 4.11 BCS Disclaimer of All Other Warranties. does not notify Indemnified Party within twenty (20)
<br /> Except as otherwise expressly stated in this days after receipt of Indemnified Party's notice of a
<br /> Agreement, BCS makes no representations or claim of indemnity under this Agreement that
<br /> warranties concerning the Licensed Products or the Indemnifying Party elects to undertake the defense of
<br /> services provided hereunder. THE FOREGOING such claim, Indemnified Party shall have the right to
<br /> WARRANTIES ARE IN LIEU OF,AND LICENSOR contest, settle or compromise the claim in the exercise
<br /> HEREBY EXPRESSLY DISCLAIMS, ALL OTHER of Indemnified Party's exclusive discretion, which
<br /> WARRANTIES, BOTH EXPRESS AND IMPLIED, shall be at the expense of Indemnifying Party.
<br /> INCLUDING BUT NOT LIMITED TO THE Indemnifying Party shall not,without the prior written
<br /> IMPLIED WARRANTIES OF consent of Indemnified Party,enter into any settlement
<br /> MERCHANTABILITY AND OF FITNESS FOR A agreement on terms that would diminish the rights
<br /> PARTICULAR PURPOSE. provided to Indemnified Party or increase the
<br /> obligations assumed by Indemnified Party under this
<br /> 5. Indemnification. Agreement.
<br /> 5.1 Indemnification by BCS. BCS shall defend, 5.3 Excepted Claims. BCS shall have no
<br /> indemnify and hold harmless Licensee and its affiliates obligation to indemnify Licensee under Section 5.1 to
<br /> and their respective officers, directors, employees, the extent any claim of Intellectual Property
<br /> agents, lawyers and representatives (collectively the infringement is based on (i) use of Licensed Products
<br /> "Licensee Indemnified Parties") from and against any modified by Licensee if such infringement would have
<br /> and all damages,losses, liabilities,judgments, awards, been avoided by the use of the unmodified version of
<br /> costs, and expenses of any nature whatsoever, Licensed Products that BCS provided to Licensee; (ii)
<br /> including reasonable attorney's fees and court costs,
<br /> use of the Licensed Products in connection with any
<br /> incurred by any Licensee Indemnified Party arising out third party software or hardware not in accordance
<br /> of or relating to:(i)any loss or damage to real property with Appendix D; (iii)use of the Licensed Products in
<br /> or tangible personal property, or any bodily injury, a manner other than that set forth in the
<br /> including death,to the extent caused by the intentional Documentation; or (iv) specifications provided by
<br /> or grossly negligent acts or omissions of BCS; or Licensee to BCS. The exception provided in this
<br /> (ii)claims, actions, or proceedings alleging Section 5.3 will not apply to the extent they conflict
<br /> infringement by Software of any United States with applicable law,including Article V, Section 4(3)
<br /> Intellectual Property rights of any third party. of the North Carolina Constitution.
<br /> 5.2 Indemnification Procedure. If a claim is 6. Confidential Information.
<br /> made against a Party (the "Indemnified Party") for
<br /> which the other Party (the "Indemnifying Party") is 6.1 Confidential Information. Both parties
<br /> obligated to indemnify Indemnified Party, and if recognize and agree to adhere to North Carolina's
<br /> Indenmified Party intends to seek indemnity with public records law, set forth at Chapter 132 of the
<br /> respect to such claim, Indemnified Party shall North Carolina General Statutes. Each Party shall use
<br /> promptly notify Indemnifying Party in writing of such at least the same degree of care in safeguarding the
<br /> claim. Indemnifying Party shall have twenty(20)days other Party's Confidential Information as it uses in
<br /> after receipt of the above-mentioned notice to notify safeguarding its own Confidential Information, but in
<br /> Indemnified Party in writing of its intent to undertake, no event shall a Party use less than reasonable
<br /> conduct and control, through counsel of Indemnifying diligence and care. Each Party hereby agrees that,
<br /> Party's own choosing (subject to the consent of except as required by law, (i) during the term of this
<br /> Indemnified Party, such consent not to be Agreement and at all times thereafter it shall not
<br /> unreasonably withheld) and at Indemnifying Party's commercialize or disclose the other Party's
<br /> expense, the settlement or defense, or both, of such Confidential Information to any person or entity,
<br /> claim, and Indemnified Party shall cooperate with except to its own Personnel, and in the case of
<br /> Indemnifying Party in connection with such efforts; Licensee, the Personnel of Licensee Affiliates
<br /> provided that: (i)Indemnifying Party shall permit (collectively, the "Representatives") having a need to
<br /> know; (ii) it will not use or permit its Representatives
<br /> 4
<br /> CORE/0804998.0008/128897050.2
<br />
|