|
2
<br />
<br />SSG Indemnity. SSG agrees, at its own expense, to defend, indemnify and hold Client, and its affiliates, officers,
<br />directors, employees, and agents harmless against any damages finally awarded and payable to any third party
<br />in any such suit or cause of action, alleging that a SaaS Service as used in accordance with this Agreement infringes
<br />the registered U.S. patent or copyright of any third party. If a SaaS Service is held or believed to infringe on a
<br />registered U.S. patent or copyright of a third party, SSG may, in its sole discretion, (a) modify the Service to be
<br />non-infringing, (b) obtain for Client a license to continue using the affected Service, or (c) if neither (a) nor (b) are
<br />practical in SSG’s sole judgment, terminate the affected Service and return to Client the pro-rated portion of
<br />unused Service fees actually paid by Client for the affected Service. The foregoing obligations of SSG do not apply
<br />(i) to the extent that the allegedly infringing SaaS Service or portions or components thereof or modifications
<br />thereto result from any change or that are developed or configured in whole or in part in accordance with
<br />Customer’s specifications, made by Client or by any third party for Client, (ii) if the infringement claim could have
<br />been avoided by using an unaltered current version of a SaaS Service which was provided by SSG, (iii) to the
<br />extent that an infringement claim is based upon any information, design, specification, instruction, software,
<br />data, or material not furnished by SSG, or any material from a third party portal or other external source that is
<br />accessible to Client within or from the SaaS Service (e.g., a third party Web page accessed via a hyperlink), (iv) to
<br />the extent that an infringement claim is based upon the combination of any material with any products or services
<br />not provided by SSG, or (v) to the extent that an infringement claim is caused by the provision by Client to SSG of
<br />materials, designs, know-how, software or other intellectual property with instructions to SSG to use the same
<br />in connection with the SaaS Service, (vi) to the extent that Client is in material breach of its obligations under the
<br />terms of this Agreement. Additionally, to the extent authorized by North Carolina law, SSG agrees to defend,
<br />indemnify, and hold harmless Client, its directors, officers, employees, agents, independent contractors,
<br />authorized volunteers, attorneys, and consultants from and against all losses, costs, demands, attorneys’ fees,
<br />expenses, obligations, liabilities, penalties, interests, recoveries, damages, claims, and judgments alleged to
<br />result from, arise out of, or be in any way connected with (i) any willful acts, active or passive negligence, errors,
<br />or omissions, including violation of any law or regulation, resulting from SSG’s failure to encrypt Client Data to
<br />industry-standard cipher key size of 2048 bits or better and (ii) arising from property damage or bodily injury
<br />including death to any person or persons caused in whole or in part by the negligence or misconduct of SSG
<br />except to the extent same are caused by the negligence or willful misconduct of the Client. The indemnity and
<br />other remedies set forth in this Section shall be the exclusive remedies of the Client with respect to any claim
<br />and actions for which SSG has an obligation of indemnity pursuant to this Section. It is the intent of this Section
<br />to require SSG to indemnify the Client to the fullest extent permitted under North Carolina law.
<br />
<br />4. Section 8.2. Client Indemnity. Section 8.2 is hereby deleted in its entirety and replaced with the
<br />following:
<br />
<br />“Client shall not be liable for any negligent or wrongful acts, either of commission or omission, unless such
<br />liability is imposed by law and that this Agreement shall not be construed as seeking to either enlarge or
<br />diminish any obligation or duty owed by one party against the other or against a third party.”
<br />
<br />5. Section 9. Nondisclosure. Section 9 is hereby modified as follows (additions are represented by underline
<br />and deletions are represented by strikethrough):
<br />
<br />NONDISCLOSURE. All Confidential Information (as defined below) disclosed hereunder will remain the
<br />exclusive and confidential property of the disclosing party. The receiving party will not disclose the Confidential
<br />Information of the disclosing party and will use at least the same degree of care, discretion and diligence in
<br />protecting the Confidential Information of the disclosing party as it uses with respect to its own confidential
<br />information, but in no case less than reasonable care. The receiving party will limit access to Confidential
<br />Information to its affiliates, employees and authorized representatives with a need to know and will instruct
<br />them to keep such information confidential. SSG may disclose Client’s Confidential Information on a need to
<br />know basis to its subcontractors who are providing all or part of the Services. SSG may use Client’s Confidential
<br />Information solely as provided for under Agreement. Notwithstanding the foregoing, the receiving party may
<br />DocuSign Envelope ID: AF469A1B-3B5E-4682-8248-5645B6A34E7BDocuSign Envelope ID: DC14D055-C40F-49F2-BD98-F6CDF83231D7
|