SaaS Terms

This Subscription License Agreement (“Agreement”) is between tekVizion PVS Inc., a Texas corporation (“Licensor”), and the licensee party identified on a duly executed Order (as defined below) (“Licensee”). By downloading, installing and/or using the Software (as defined below) or by signing or submitting an Order, Licensee agrees to be bound by the terms and conditions of this Agreement. Licensee may use the Software only in compliance with this Agreement and any duly executed Order.

  1.     Prices And Fees

    1.1     Prices.  Customer agrees to pay the fees for the Services specified on the applicable Order(s) (“Prices”).  If Customer orders additional Services, Customer agrees to pay tekVizion’s then-current fees for such Services.  Unless otherwise agreed to in writing by tekVizion, all Prices are exclusive of transportation and insurance costs, and all taxes including federal, state, and local use, sales, property (ad valorem), value add, withholding and similar taxes.  Customer agrees to pay such expenses and taxes (except taxes upon tekVizion’s net income).  Customer agrees to indemnify and hold harmless tekVizion for any liability for such tax, transportation, and insurance costs, as well as the collection or withholding thereof, including penalties and interest thereon.

    1.2     Terms.  All Services must be paid within thirty (30) days from the date of purchase/invoice.  All late payments shall be charged interest computed on a daily basis from the due date until it is paid in full, at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is less. Customer is responsible for any banking fees associated with wire transfers.

    2.0     Contact Person and Additional Services.  Customer agrees that all contact with tekVizion shall be directed to tekVizion by Customer’s Primary Technical Point of Contact, as specified in the Order.  Customer acknowledges and agrees that any support, assistance, or other service, other than those expressly purchased in the Customer’s Order, shall be provided at tekVizion’s discretion and shall be subject to tekVizion’s then-current rates for such services.  Unless otherwise agreed to in writing, tekVizion will bill Customer monthly for any additional services requested by Customer and performed by tekVizion.

    2.1     Software. tekVizion’s Software as a Service (“SaaS”) may be utilized by Customer as part of Services specified in Order. The most current version of the SaaS terms can be reviewed at the hypertext link:https://www.tekvizion.com/SaaS-Terms/  tekVizion reserves the right to update the SaaS terms at any time without notice to you.

    3.0     Shipment/Date

    3.1     Shipment. Unless otherwise specified in the applicable Order, shipment of any Customer equipment to and from tekVizion shall be the sole responsibility of the Customer.  Customer agrees to pay tekVizion for any shipping costs incurred by tekVizion in connection with the shipment of any Customer equipment under this Agreement.

    3.2     Date. Unless otherwise specified in a Schedule to this Agreement, tekVizion will attempt to provide the Services in accordance with the date specified in the applicable Order, if any.  However, any such date is an estimate only based on an initial assessment of the Services, and tekVizion will not be subject to liability for failure to provide the Services on or before such date under any circumstances.

    4.0     Disclaimer

    4.1     No Liability for Customer Products.  Customer acknowledges and agrees that tekVizion shall not be liable for any failure of the Customer’s equipment or products regardless of whether such equipment or products have been integrated, tested, or certified by tekVizion.    tekVizion does not represent that its testing can or will test all aspects of product functionality. Customer alone shall ultimately and solely be responsible for the operation of its equipment and products.  tekVizion disclaims all liability for statements made by Customer to third parties regarding its products.  Customer agrees to indemnify, defend and hold harmless tekVizion and its officers, directors, employees and agents from and against any and all losses, liabilities, claims, obligations, costs, expenses (including without limitation reasonable attorneys’ fees) which result from, arise in connection with or are related in any way to (i) the distribution or use of Customer’s equipment or products, whether or not such products have been tested or certified by tekVizion, (ii) any statements or representations make by Customer in connection with the testing and certification of its equipment or products hereunder, or (iii) Customer’s use of the Services.  tekVizion agrees (a) to give Customer prompt written notice of any such claim; (b) to provide reasonable cooperation in the defense and all related settlement negotiations; and (c) that Customer shall have sole control over the litigation or settlement of such claim.

    4.2     Technical Requirements.  Certain of the Services require that Customer maintain a high-speed Internet connection.  Customer acknowledges that Internet access is not provided by tekVizion under this Agreement and must be obtained by Customer from third parties.  tekVizion may elect to, in its sole discretion, require that Customer use a standard IPSec Virtual Private Network (“VPN”) for network access to tekVizion Labs.  Customer acknowledges that VPN equipment and software is not provided by tekVizion under this Agreement and must be obtained by Customer from third parties at Customer’s expense. 

    4.3     Disclaimer of Warranties. EXCEPT AS SET FORTH IN THIS AGREEMENT TEKVIZION DOES NOT MAKE, AND HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS, SUBCONTRACTORS, AND LICENSORS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF NONINFRINGEMENT AND TITLE, THE WARRANTIES OF SATISFACTORY QUALITY, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. TEKVIZION DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THEIR USE WILL NOT BE INTERRUPTED. 

    5.0     Limitation of Liability.  IN NO EVENT WILL TEKVIZION OR ITS SUPPLIERS, SUBCONTRACTORS OR LICENSORS BE LIABLE(A) FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT TEKVIZION OR ITS SUPPLIERS, LICENSORS OR SUBCONTRACTORS WEREADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES; (B)FOR LOSS OF, OR DAMAGE TO, RECORDS OR DATA; (C) FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS; (D) FOR ANY DAMAGES RELATED TO CUSTOMER’S FAILING OF TESTING, OR (E) FOR THIRD-PARTY CLAIMS AGAINST CUSTOMER FOR LOSSES OR . NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, TEKVIZION’S TOTAL LIABILITY TO CUSTOMER, AND THAT OF ANY AND ALL OF ITS SUBCONTRACTORS, SUPPLIERS AND LICENSORS, IS LIMITED TO THE TOTAL PAYMENTS BY CUSTOMER TO TEKVIZION FOR SERVICE WHICH WAS THE SUBJECT OF THE CLAIM.

    6.0     Term.  The term of this Agreement will commence on the Effective Date and continue for one (1) year unless terminated sooner pursuant to this Section 10.4 (Termination).  This Agreement shall renew automatically for successive one (1) year terms, unless either party gives at least thirty (30) days written notice prior to the beginning of any renewal term to the other party of its intention not to renew.

    7.0     Feedback.  Any feedback or suggestions, regarding the Services, provided by Customer to tekVizion (“Suggestions”) shall be the property of tekVizion and Customer hereby assigns to tekVizion all right, title and interest worldwide in and to such Suggestions and the related intellectual property rights. 

    8.0     Use of Name. Customer agrees to be identified as a customer of tekVizion and that tekVizion may refer to Customer by name, tradename, or trademark, and may briefly describe Customer’s business in tekVizion’s customer information and marketing materials. Customer grants tekVizion a license to use Customer’s name and any of its tradenames and trademarks solely in connection with these rights.

    9.0     Password Security.  tekVizion controls access to certain Services using confidential logins and passwords.  Customer agrees that it will not share any login or password provided by tekVizion with any third parties and will not otherwise allow any third party to access tekVizion’s systems or products using Customer’s login or password.  Customer agrees that it is entirely responsible for maintaining the confidentiality of its login and password and agrees to notify tekVizion if its login or password is lost, stolen, disclosed to a third party, or otherwise may have been compromised. 

    10.0   General

    10.1   Nature of Relationship.  The relationship between the parties herein is one of independent contractor.  Nothing in this agreement is intended to, or should be construed to, create a partnership, agency, joint venture, or employment relationship between the parties.

    10.2   Scope of Services.  Customer acknowledges and agrees that tekVizion performs the Services directly for the Customer, and not for the benefit of Customer’s end users or other third parties.  Statements by tekVizion are intended to assist Customer in troubleshooting its equipment and products but are not intended to be a representation or warranty by tekVizion that the Customer’s equipment or products are safe, interoperable, merchantable, or fit for a particular purpose.  Customer agrees that it will not make statements or representations on tekVizion’s behalf, and that it will not use tekVizion’s name or trademarks in connection with the commercialization of its equipment or products.  Customer agrees that it will not direct third parties to tekVizion with inquiries regarding Customer’s equipment or products, or the results of any testing or certification performed by tekVizion.

    10.3   Authority.  Customer represents and warrants to tekVizion that it has full authority to enter into and carry out its obligations under this Agreement, and to grant the rights set forth herein, and that tekVizion’s use of any of the Customer equipment or products shall not infringe the intellectual property rights of any third party.

    10.4   Termination. Either party may terminate this Agreement upon thirty (30) days’ prior written notice to the other, provided that, (i) tekVizion shall not terminate this Agreement until its obligations under any outstanding Schedules have been satisfied, and (ii) Customer shall not terminate this Agreement until all payments specified in the Order, or any outstanding Schedules have been made.  Notwithstanding the preceding, tekVizion may immediately terminate this Agreement, in whole or in part, and any licenses or services under this Agreement if Customer fails to comply with the terms of this Agreement. The terms of this Agreement that by their nature are intended to extend beyond termination will survive termination of this Agreement for any reason.

    10.5   Conflict of Interest. The parties hereto agree that, during the Term and for a period of one (1) year following the Expiration Date, Customer, shall not on its own behalf or on behalf of any other person, partnership, association, corporation, or other entity, solicit or hire any person who is an employee of tekVizion, or in any manner attempt to induce any such person to leave the employment, unless authorized to do so in writing by such party.

    10.6   Notices.  Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when delivered personally; (b) by overnight courier, upon written verification of receipt; (c) by facsimile or email transmission, upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, return receipt requested, upon verification of receipt.  Notice shall be sent to the addresses set forth on the Order or to such other address as either party may provide in writing.

    10.7   Governing Law/Limitation on Action/Attorneys’ Fees. The parties agree that this Agreement is governed by and construed in accordance with the laws of the State of Texas and by the laws of the United States, except for that body of law dealing with conflicts of law. The parties agree that venue for any dispute arising under this Agreement will lie exclusively in the state or federal courts located in Collin County, and the parties irrevocably waive any right to raise forum non conveniens or any other argument that Collin County, is not the proper venue.  The parties irrevocably consent to personal jurisdiction in the state and federal courts of the State of Texas.  The parties also agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement must be brought within two (2) years after such claim or cause of action arose or be forever barred.  If either party employs attorneys to enforce any rights arising out of or related to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees and costs from the other party.

    10.8         Assignment.  Customer may not assign, voluntarily, by operation or law, in connection with a change in control, merger, or otherwise, this Agreement to any third party without the express written consent of tekVizion, which shall not be unreasonably withheld.  This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.  

    10.9         Severability. If any provision of this Agreement is held invalid, illegal, unenforceable, or in conflict with any law having jurisdiction over this Agreement, the validity, legality, and enforceability of the remaining portions or provisions hereof will not be affected or impaired.

    10.10      No Third-Party Beneficiaries.  Under no circumstances shall any third party be deemed a third-party beneficiary under this Agreement. 

    10.11      Counterparts.  By their signatures on the applicable Order, the parties hereto indicate their agreement to the terms and conditions set forth herein.  The Order may be executed in two or more counterparts, each of which shall be deemed an original for all purposes, and together shall constitute one and the same document.  Telecopy signatures shall be relied upon as original signatures in all respects.  All signed copies of the Order shall be deemed originals.

    10.12      Force Majeure.  tekVizion shall not be liable for nonperformance or delays, under any circumstances, which occur due to any causes beyond its reasonable control.  These causes shall include, but shall not be limited to, acts of God, wars, riots, strikes, fires, storms, floods, earthquakes, shortages of labor or materials, labor disputes, vendor failures, transportation embargoes, acts of any government or agency thereof and judicial actions.

    10.13      Waiver.  No waiver will be implied from conduct or failure to enforce rights, and no waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted.  The exercise of any right or remedy provided in this Agreement will be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited by this Agreement. 

    10.14      Entire Agreement.  This Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein and supersedes all prior proposals, agreements, negotiations, correspondence, understandings, and other communications, whether written or oral, between tekVizion and Customer.  Any additional or different terms contained in Customer’s documents, whether previously or later received by tekVizion are null and void.  There are no promises, covenants or undertakings other than those expressly set forth herein.  This Agreement may not be modified except by a writing signed by authorized representatives of tekVizion and Customer.

    10.15      Contact Us.  Should Customer have any questions concerning this Agreement, or if Customer desires to contact tekVizion for any reason, please contact the tekVizion representative serving Customer, or write: tekVizion PVS, Inc., 3701 W. Plano Pkwy #300, Plano, TX 75075.

 

MASTER SOFTWARE AS A SERVICE AGREEMENT

This Agreement sets forth the terms and conditions under which TekVizion (“Provider”) will license certain hosted “software as a service” and provide continuous validation for use of such software. as further set forth.
In consideration of the mutual covenants and representations set forth in this Agreement, the parties agree as follows:

  1. The Services.

    1.1 Access. Provider hereby grants Customer, during the Term, a limited, revocable, nontransferable and non-exclusive license for Customer and its Authorized Users (as hereinafter defined) to use the Services solely for Customer’s internal branding, third party licenses of intellectual property, royalty reporting and collection, and intellectual property management purposes consistent with the terms and conditions of this Agreement.

    1.2 Authorized Users. Unless otherwise limited in the Service Description, Customer and any of its employees, agents, contractors, licensees, partners, sponsors or suppliers of services that have a need to use the Services for the benefit of Customer and that are identified by Customer to Provider as authorized users shall have the right to use the Services (the “Authorized Users”). As a part of the Services, Provider shall be responsible for assigning and managing unique logon identifiers and passwords. As part of the terms of use of the Services, Authorized Users will agree: (a) not disclose user’s logon identifier to any third-party person or entity; (b) not permit any other third-party person or entity to use user’s logon identifier and (c) use the Services solely in accordance with the terms and conditions of this Agreement.

    1.3 Control of Services. The method and means of providing the Services shall be under the exclusive control, management, and supervision of Provider. Provider reserves the right to make upgrades and other modifications to the Services at anytime that do not significantly affect its functionality, or materially disrupt or negatively impact Customer’s use of the Services. In the event Provider reasonably believes that any such modification could materially adversely affect Customer, Provider agrees to notify Customer of such planned modification in advance.

    1.4 Time of Provider Performance of Services. For the term of the applicable Provider shall provide the Services subject to the applicable Service Windows and in accordance with the applicable Application Uptime, each as described in the Service Description.

    1.5 Backup and Recovery of Customer Data. As a part of the Services, Provider is responsible for maintaining a backup of Customer Data (as defined in Section 6.4), for an orderly and timely recovery of such data in the event that the Services may be interrupted. Unless otherwise described in the Service Description, Provider shall maintain a contemporaneous backup of Customer Data that can be recovered within twenty-four (24) hours at any point in time. Upon request by Customer at any time (but no more than two times per contract year), Provider must promptly deliver to Customer or its designee the Customer Data in CSV or such other standard format as reasonably requested.

    1.6 Viruses. Provider will use its commercially reasonable efforts to ensure that no computer viruses, malware, or similar items are introduced into Customer’s computer and network environment while performing the Services.

    1.7 Subcontracting. Provider must obligate its subcontractors to be bound by and adhere to the terms and conditions of this Agreement. Notwithstanding the permitted subcontracting of Services, Provider will remain primarily liable for all of its obligations under this Agreement, and for the acts and omissions of all Provider personnel in connect with the performance of Services or provision of Software.

  2. Responsibilities of Client.

    2.1 Provider Services. With respect to the Services, Customer and Authorized Users shall be solely responsible for (a) their use and operation, and the connection or interface, between the Services and any Customer computer hardware or peripherals; (b) the results obtained therefrom; (c) promptly notifying Provider of any problems or failures of the Services to perform; and (d) designating at least one qualified and capable full-time employee (who may also be a Customer contact) to serve as Customer’s main point of contact with Provider for all purposes with respect to the Services.

    2.2 Third Party Equipment and Telecommunications Facilities. Customer and Authorized Users, at their expense, shall license or obtain third party telecommunication services necessary to access the Services.

    2.3 Restrictions. Each of Customer and the Authorized Users agree, that except as expressly permitted herein, it will not itself, or through any agent or other third party: (a) sell, rent, lease, license, sublicense, pledge, or encumber its rights under this Agreement or the Services, or any part thereof, to any third party; (b) assign, distribute, transfer, furnish or otherwise disclose or make available the Services, or any part thereof, to any third party; (c) modify, add to, decompile, disassemble, or reverse engineer the Services, in whole or in part, or attempt to do so; (d) write or develop any derivative software or any other software program based upon the Services or any Confidential Information of Provider; (e) engage in spamming, mailbombing, spoofing or other fraudulent, illegal or unauthorized use of the Services; (f) introduce into or transmit through the Services any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design; or (g) use the Services or any part thereof after the Term of this Agreement.

  3. Proprietary Rights.

    3.1 Pre-existing Materials. Customer acknowledges that, in the course of performing the Services, Provider may use software and related processes, instructions, methods, and techniques that have been previously developed by Provider (collectively, the “Pre-existing Materials”) and the same shall remain the sole and exclusive property of Provider.

    3.2 Customizations. Customer acknowledges that all feature requests, customizations, and improvements to the Services, (“Customizations”) shall be and remain the sole and exclusive property of Provider provided that any Customer Confidential Information included in a customization shall remain the exclusive property of Customer.

    3.3 Intellectual Property of Customer. Notwithstanding anything herein to the contrary, Provider acknowledges that the Customer is the exclusive owner of all of its trademarks, designs, logos, symbols, copyrights and other proprietary designations and rights associated with the files provided by Customer for use with the Services (“Customer IP”).

    3.4 Customer Data. All Customer or Authorized User provided information, or any derivatives thereof, including but not limited to company names, addresses, billing information, purchase records, reports and analysis generated through the Software using Customer or Authorized User provided information, and all artwork, designs, and logos submitted or distributed through the Services, contained in any Provider repository (the “Customer Data”), whether in existence as of the Effective Date or compiled thereafter, shall be and remain the sole and exclusive property of Customer. Customer shall be entitled to an export of Customer Data in a digital form readable by most contemporary computers, without charge, upon termination of this Agreement. Provider is provided a license to Customer Data hereunder for the sole and exclusive purpose of providing the Services, including a license to store, record, transmit, maintain, and display Customer Data only to the extent necessary in the provisioning of the Services. Notwithstanding anything herein to the contrary, Customer acknowledges that company names that are separately provided by another Provider customer are not considered Customer Data, but the fact that such company names are included in Customer Data shall continue to be considered Confidential Information.

    3.5 Data of Provider. All data regarding usage, browsing history, and other system-generated data, including but not limited to IP addresses of visitors, HTTP logs, submission logs, account activity logs, and error logs (the “Metrics Data”), shall be and remain the sole and exclusive property of Provider. Provider agrees not to use the Metrics Data in order to identify and contact Customer employees, licensees, customers, or any other parties whose history is included solely in the Customer Metrics Data other than in the performance of Services hereunder and shall not use the Metrics Data other than in an aggregated and de-identified form in connection with internal analyses or when sharing the Metrics Data with third parties.

    3.6 No License. Except as expressly set forth herein, no license is granted by either party to the other with respect the Confidential Information, Customizations, Pre-existing Materials, Customer IP, Customer Data or Metrics Data. Nothing in this Agreement shall be construed to grant to either party any ownership or other interest in the Confidential Information, Customizations, Customer IP, Pre-existing Materials, Customer Data, or Metrics Data of the other party except as may be provided under a license specifically applicable to the same.

  4. Mutual Representations and Warranties.

    Each of Provider and Customer represent and warrant to the other that: (a) it is a business duly organized or incorporated, validly existing and in good standing under the laws of its state of organization; (b) it has all requisite power, financial capacity and authority to execute, deliver and perform its obligations under this Agreement; and (c) the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums and similar laws affecting creditors’ rights generally and by general equitable principles.

  5. Customer Warranties.

    Customer represents and warrants that it has the full right, power, authority or permission to arrange for and authorize the performance of the services set forth in a Service Description, both now and in the future. Customer also represents and warrants that information pertaining to voice telephony services such as Customer-provided Telephone Numbers, IP addresses and devices functioning at those IP addresses are owned or controlled by Customer and Customer is legally entitled to authorize voice telephony services be performed upon such IP addresses. Should Provider not be able to verify ownership of the IP addresses as being owned by Customer through the American Registry for Internet Numbers (ARIN) or similar agency such as RIPE NCC, LACNIC or APNIC and Provider’s performance of the Services upon such IP addresses results in liability for any party, Customer shall indemnify and hold harmless Provider, its corporate affiliates, business partners and any employee, director, officer or agent thereof against all liability, including reasonable attorney’s fees and costs, arising from the performance of the Services contemplated by any Service Description.

  6. Limited Provider Warranty.

    (a) Provider represents and warrants that the services provided hereunder shall be performed in a professional and workmanlike manner. For any breach of the above warranty, Customer’s exclusive remedy, and Provider’s entire liability shall be to provide services to correct the deficiencies. PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT. PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR FREE, THAT ANY DEFICIENCIES, ERRORS, DEFECTS OR NONCONFORMITIES WILL BE CORRECTED, THAT THE SERVICES WILL BE UNINTERRUPTED, OR THAT THE SERVICES WILL MEET CUSTOMER’S SPECIFIC REQUIREMENTS.

    (b) Provider, in conjunction with its personnel, will determine the method, details, and means of performing services for Customer. Customer acknowledges and understands that Provider’s Services may include introducing or injecting traffic into Customer’s telephony systems. Customer acknowledges and agrees that Provider shall not be liable for any failure of Customer’s equipment, products, or telephony systems if such failure is associated with the provision of Provider’s Services under this Agreement.

  7. Remedies for Infringement and Breach of Warranties.

    If Provider determines that the Services are or are likely to be the subject of a claim of infringement, or in the event of any breach of Section 9, Provider shall have the right to: (a) replace the Services with services that have substantially equivalent functionality; (b) obtain for Customer, at no additional cost to Customer, the right to continue using the Services; (c) replace or modify such Services so that they do not infringe upon or misappropriate such proprietary right and are free to be delivered to and used by Customer; or (d) in the event that Provider is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do any of the foregoing, terminate the Agreement and refund any unearned fees applicable to such Services. Provider agrees to indemnify, defend and hold Customer and its directors, officers, employees and agents (collectively, the “Indemnitees”) harmless, from and against any and all claims or allegations, losses, damages, suits, fees, judgments, costs and expenses (collectively referred to as the “Damages”), including reasonable attorneys’ fees and expenses incurred in responding to such Damages, that the Indemnitees may suffer or incur arising out of or in connection with Provider’s and any affiliate of Provider’s (including their respective directors, officers, employees and agents) negligence, willful misconduct, or breach of any representation, warranty, or other obligation under this Agreement.

  8. Remedies for Third Party Infringement Claims.

    Provider agrees to indemnify, defend and hold the Indemnitees harmless against any and all Damages arising out of a third party claim that the Services infringe or misappropriate any patent, copyright, trade secret, trademark, or other proprietary right; provided that Customer complies with the procedures in Section 12 hereof. Provider shall have no liability with respect to a claim based on (i) the unauthorized use of the Services in conjunction with Customer or third-party data where the use with such data gave rise to the infringement claim, (ii) the unauthorized use of the Services by Indemnitees with other software or hardware, where use with such other software or hardware gave rise to such claim, or (iii) use of the Services by Indemnitees which breaches the terms of this Agreement.

    THE PROVISIONS OF SECTIONS 7 AND 8 STATE THE EXCLUSIVE LIABILITY OF PROVIDER AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT OR TRADE SECRET MISAPPROPRIATION WITH RESPECT TO THE SERVICES OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT.

  9. Indemnification by Customer.

    Customer agrees to indemnify, defend and hold harmless Provider against any and all Damages incurred by Provider as a result of claims, actions, or proceedings brought by any third party arising in connection with the unauthorized use of the Services by Customer or its Authorized Users (unless the claim is based on a matter subject to indemnification by Provider pursuant to Sections 11 and 12). Notwithstanding the foregoing, to the extent the claim involves or relates to an intellectual property right of Provider, Provider may elect to have sole control over the defense and/or settlement of such claim.

  10. Indemnification Procedures.

    Promptly after receipt by an indemnified party hereunder of a threat of any action, or a notice of the commencement, or filing of any action against such party, the indemnified party shall give notice thereof to indemnifying party hereunder. The indemnified party shall not independently defend or respond to any such claim; provided, however, that indemnified party shall have the right, at its own expense, to monitor indemnifying party’s defense of any such claim. The indemnifying party shall have sole control of the defense and of all negotiations for settlement of such action; provided, however, that the indemnified party will have the right to pre-approve any settlement that materially affects its rights or obligations. The indemnified party shall cooperate with said defense by complying with the indemnifying party’s reasonable instructions and requests to the indemnified party in connection with said defense, all at indemnifying party’s expense.

  11. Survival.

    Any provisions necessary to interpret the respective rights and obligations of the parties hereunder shall survive any termination or expiration of this Agreement, regardless of the cause of such termination or expiration. The following sections shall continue in full force and effect after the expiration or termination of this Agreement: Sections 3, 5, 6, 7, 8, 9 and 10.

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