Indemnification
By AwareX. AwareX will indemnify, defend and hold harmless Customer, at AwareX’s expense, from and against any of the following third-party claims, actions or demands (“Claims”) assessed against an Indemnified Party by a court of competent jurisdiction or agreed by AwareX to be paid in settlement (collectively, “Losses”) to the extent arising from such Claims: (a) Claims that Agora or AwareX Software and Documentation provided hereunder or used within the grant of license directly or indirectly infringes any worldwide patent, copyright or other intellectual property right of a third party or alleging that authorized use of Agora or AwareX Software and Documentation, violates any law, rule, regulation or court order or (b) Claims that any use of the Content by AwareX is in violation of this Agreement.
AwareX shall have no obligation under Section 13.1 for or with respect to Claims alleging infringement to the extent arising as a result of (a) the combination of the Software by Customer with any items not supplied by AwareX; (b) modification of Agora or AwareX Software or Documentation by AwareX in compliance with specific written design specifications or instructions provided by Customer and required by Customer to be followed by AwareX; (c) the direct or contributory infringement of any process patent by Customer through the use of Agora or AwareX Software or Documentation in a manner that is different from the permitted uses hereunder and from the typical use contemplated by AwareX’s business and the Documentation; (d) use of Agora or AwareX Software or Documentation by Customer other than in accordance with the terms and conditions of this Agreement; or (e) Customer’s failure to install any maintenance release or new version of the Software provided by AwareX within thirty (30) days after notice from AwareX that such installation is necessary to avoid an infringement claim.
If Agora or AwareX Software or Documentation becomes, or in AwareX’s reasonable opinion is likely to become, the subject of an infringement or misappropriation claim, or if use of Agora or AwareX Software or Documentation is permanently enjoined for any reason, AwareX, at its option, shall (1) modify Agora or AwareX Software or Documentation so as to avoid infringement, such that the modified Agora or AwareX Software or Documentation performs materially the same functions in a non-infringing manner; (2) procure the right for Customer to continue to use Agora or AwareX Software or Documentation as set forth herein; or (3) if neither of the foregoing actions are feasible on commercially reasonable terms, then AwareX shall have the right to terminate this Agreement without further liability except for its obligations under this Section 13.1.
This section 13.1 states AwareX’s entire liability to Customer and Customers sole remedy for any infringement or misappropriation claims concerning Agora or AwareX Software or Documentation.
By Customer. Customer shall indemnify, defend, and hold AwareX harmless from and against any of the following third party Claims, and any Losses to the extent arising from such Claims: (a) Claims based on Customer's Content, or the authorized use or transmission thereof by AwareX, or the content of Customer's web site, including but not limited to claims of defamation, invasion of privacy, or the violation of any right of publicity or other rights of any person or entity, (b) Claims that the storage or transmission of any Content by AwareX in the course of performing the awareX Subscription Service violates any law, rule, regulation or court order, (c) Claims that any use of Agora by Customer or its end users is in violation of this Agreement, or (d) any transmission by Customer or its end users of any harmful code to or through AwareX Server.
Indemnification Requirements. The indemnities set forth herein apply only provided that the party seeking the indemnification (“Indemnified Party”) : (i) gives written notice of the claim promptly to the other party (“Indemnifying Party”), (ii) gives Indemnifying Party sole control of the investigation, defense and settlement of the claim (provided that no settlement of a claim involving a remedy other than the payment of money by the Indemnifying Party shall be entered into without the consent of the Indemnified Party, which consent shall not unreasonably be withheld), provided that Indemnified Party shall have the ability to participate with counsel of its own choosing at its own cost, (iii) provides to Indemnifying Party all reasonable information and assistance, (iv) has not compromised or settled such claim without Indemnifying Party 's prior written consent and (v) has at all times used reasonable efforts to mitigate the losses incurred.
