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SSG MSA – version 6.1 v2 – September 2022
<br />agents harmless against any damages finally awarded and payable to any third party in any such suit or cause of action, alleging that a SaaS Service as
<br />used in accordance with this Agreement infringes the registered U.S. patent or copyright of any third party. If a SaaS Service is held or believed to infringe
<br />on a registered U.S. patent or copyright of a third party, SSG may, in its sole discretion, (a) modify the Service to be non-infringing, (b) obtain for Client a
<br />license to continue using the affected Service, or (c) if neither (a) nor (b) are practical in SSG’s sole judgment, terminate the affected Service and return to
<br />Client the pro-rated portion of unused Service fees actually paid by Client for the affected Service. The foregoing obligations of SSG do not apply (i) to the
<br />extent that the allegedly infringing SaaS Service or portions or components thereof or modifications thereto result from any change or that are developed
<br />or configured in whole or in part in accordance with Customer’s specifications, made by Client or by any third party for Client, (ii) if the infringement claim
<br />could have been avoided by using an unaltered current version of a SaaS Service which was provided by SSG, (iii) to the extent that an infringement claim
<br />is based upon any information, design, specification, instruction, software, data, or material not furnished by SSG, or any material from a third party portal
<br />or other external source that is accessible to Client within or from the SaaS Service (e.g., a third party Web page accessed via a hyperlink), (iv) to the extent
<br />that an infringement claim is based upon the combination of any material with any products or services not provided by SSG, or (v) to the extent that an
<br />infringement claim is caused by the provision by Client to SSG of materials, designs, know-how, software or other intellectual property with instructions to
<br />SSG to use the same in connection with the SaaS Service, (iv) to the extent that Client is in material breach of its obligations under the terms of this
<br />Agreement. The indemnity and other remedies set forth in this Section shall be the exclusive remedies of the Client with respect to any claim and actions
<br />for which SSG has an obligation of indemnity pursuant to this Section.
<br />8.2 Client Indemnity. Client agrees to defend, indemnify and hold SSG, its licensors, and its and their respective parents, subsidiaries, affiliates,
<br />officers, directors, employees, and agents harmless from and against any and all losses, including, but not limited to any damages, attorneys’ fees and
<br />costs finally awarded against Client or as a result of a court approved settlement arising out of or in connection with a third party claim concerning (a) the
<br />Client Data or the combination of the Client Data with other applications, systems, content or processes, including any claim involving alleged infringement
<br />or misappropriation of third-party rights by the Client Data or by the use, development, design, production, advertising or marketing of the Client Data; (b)
<br />any and all losses, including without limitation, data loss or damage to hardware, software and other property arising from Client’s or its Users’ acts and
<br />omissions in using the Services, including without limitation Independent Client Activity; (c) Client’s or its Users’ use of Services in violation of the terms of
<br />this Agreement or applicable law; or (d) a dispute between Client and any of its Users.
<br />8.3 Injunction. If Client’s use of the Services is or is likely to be enjoined, SSG may, without limiting SSG’s indemnity obligations hereunder, procure
<br />the right for Client to continue to use the Services or modify the Services in a functionally equivalent manner so as to avoid such injunction. If the foregoing
<br />options are not available on commercially reasonable terms and conditions, SSG may immediately terminate the Agreement and refund to Client a prorated
<br />amount of prepaid fees for the SaaS Service actually paid by Client for the unused portion of the then-current subscription Term. If the foregoing options
<br />are not available on commercially reasonable terms and conditions as it relates to Professional Services, SSG will refund to Client the fees paid for such
<br />Professional Services less a credit for use based on straight line depreciation applied on a quarterly basis over five years from the date of initial delivery of
<br />the Professional Services.
<br />8.4 Procedure. If one party herein (the “Indemnitee”) receives any notice of a claim or other allegation with respect to which the other party (the
<br />“Indemnitor”) has an obligation of indemnity hereunder, then the Indemnitee will, within 15 days of receipt of such notice, give the Indemnitor written notice
<br />of such claim or allegation setting forth in reasonable detail the facts and circumstances surrounding the claim. The Indemnitee will not make any payment
<br />or incur any costs or expenses with respect to such claim, except as requested by the Indemnitor or as necessary to comply with this procedure. The
<br />Indemnitee will not make any admission of liability or take any other action that limits the ability of the Indemnitor to defend the claim. The Indemnitor shall
<br />immediately assume the full control of the defense or settlement of such claim or allegation, including the selection and employment of counsel, and shall
<br />pay all authorized costs and expenses of such defense. The Indemnitee will fully cooperate, at the expense of the Indemnitor, in the defense or settlement
<br />of the claim. The Indemnitee shall have the right, at its own expense, to employ separate counsel and participate in the defense or settlement of the claim.
<br />The Indemnitor shall have no liability for costs or expenses incurred by the Indemnitee, except to the extent authorized by the Indemnitor or pursuant to this
<br />procedure.
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<br />9 NONDISCLOSURE. All Confidential Information (as defined below) disclosed hereunder will remain the exclusive and confidential property of the
<br />disclosing party. The receiving party will not disclose the Confidential Information of the disclosing party and will use at least the same degree of care,
<br />discretion and diligence in protecting the Confidential Information of the disclosing party as it uses with respect to its own confidential information, but in no
<br />case less than reasonable care. The receiving party will limit access to Confidential Information to its affiliates, employees and authorized representatives
<br />with a need to know and will instruct them to keep such information confidential. SSG may disclose Client’s Confidential Information on a need to know
<br />basis to its subcontractors who are providing all or part of the Services. SSG may use Client’s Confidential Information solely as provided for under
<br />Agreement. Notwithstanding the foregoing, the receiving party may disclose Confidential Information of the disclosing party (a) to the extent necessary to
<br />comply with any law, rule, regulation or ruling applicable to it, and (b) as required to respond to any summons or subpoena or in connection with any
<br />litigation, provided the receiving party gives the disclosing party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable
<br />assistance, at the disclosing party's cost, if the disclosing party wishes to contest the disclosure. Upon the request of the disclosing party, the receiving
<br />party will return or destroy all Confidential Information of the disclosing party that is in its possession. Notwithstanding the foregoing, SSG may retain
<br />information for regulatory purposes or in back-up files, provided that SSG’s confidentiality obligations hereunder continue to apply. For purposes of this
<br />Section, “Confidential Information” means information designated as confidential in writing or information which ought to be in good faith considered
<br />confidential and proprietary to the disclosing party. Confidential Information of SSG and/or its licensors includes but is not limited to the terms and conditions
<br />(but not the existence) of the Agreement, all trade secrets, software, source code, object code, specifications, documentation, business plans, Client lists
<br />and Client-related information, financial information, auditors reports of any nature, proposals, as well as results of testing and benchmarking of the Services,
<br />product roadmap, data and other information of SSG and its licensors relating to or embodied in the Services. Information will not be considered Confidential
<br />Information to the extent, but only to the extent, that the receiving party can establish that such information (i) is or becomes generally known or available
<br />to the public through no fault of the receiving party; (ii) was in the receiving party's possession before receipt from the disclosing party; (iii) is lawfully
<br />obtained from a third party who has the right to make such disclosure on a non-confidential basis; or (iv) has been independently developed by one party
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