Orange County NC Website
Browse       Search
Spatialest Master Software and Services Agreement 11 <br /> <br />or constitutes a misappropriation of a trade secret of a third party. Excluded from the above <br />indemnification obligations are claims to the extent arising from (a) use of the Software and Services in <br />violation of this Agreement or applicable law, (b) use of the Software and Services after Spatialest notifies <br />Customer to discontinue use because of an infringement claim, (c) any claim relating to any third party <br />products or services or Customer Content (as defined in Exhibit C), (d) modifications to the Software and <br />Services made other than by Spatialest (where the claim would not have arisen but for such modification), <br />(e) the combination, operation, or use of the Software and Services with software or equipment which <br />was not provided by Spatialest, to the extent that Customer’s liability for such claim would have been <br />avoided in the absence of such combination, operation, or use; or (f) compliance by Spatialest with <br />Customer’s custom requirements or specifications if and to the extent such compliance with Customer’s <br />custom requirements or specifications resulted in the infringement. If the Software and Services are held <br />to infringe, Spatialest will, at its own expense, in its sole discretion use commercially reasonable efforts <br />either (a) to procure a license that will protect Customer against such claim without cost to Customer; (b) <br />to replace the Software and Services with non-infringing Software and Services without material loss of <br />functionality; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement or the applicable <br />Sales Order or SOW and refund to the Customer any prepaid unused fees paid to Spatialest for the <br />infringing Software and Services. For the avoidance of doubt, notwithstanding the foregoing, Spatialest <br />shall continue to be responsible for any other damages, losses, judgments or costs incurred by customer <br />pursuant to this section 9.2. The rights and remedies granted Customer under this Section 9.1 state <br />Spatialest’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of <br />the intellectual property rights of a third party, whether arising under statutory or common law or <br />otherwise. <br /> <br />9.3 Indemnification Procedure <br />The indemnified Party shall (i) promptly notify the indemnifying Party in writing of any claim, suit or <br />proceeding for which indemnity is claimed, provided that failure to so notify will not remove the <br />indemnifying Party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the <br />indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for <br />settlement; provided that the indemnifying Party shall not settle any claim without the indemnified <br />Party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified <br />Party shall also provide the indemnifying Party with reasonable cooperation and assistance in defending <br />such claim (at the indemnifying Party’s sole cost and expense). <br /> <br />DocuSign Envelope ID: D64C7E68-26A4-4A46-BC30-54CE92CAE70D