If a third party makes a claim against either you or Premium Software (‘Recipient’ which may refer to you or Premium Software depending upon which party received the Material), that any information, design, specification, instruction, software, data, or material (‘Material’) furnished by either you or Premium Software (‘Provider’ which may refer to you or Premium Software depending on which party provided the Material), the Provider will defend the Recipient against the claim, if the Recipient does the following:
  • notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
  • gives the Provider sole control of the defense and any settlement negotiations; and
  • gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim

If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any fees the Recipient may have paid for it and any unused, prepaid technical support fees you have paid for the license. If you are the Provider and such return materially affects Premium Software’s ability to meet its obligations under the relevant order, then Premium Software may, at its option and upon 30 days prior written notice, terminate the order.

The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient.

The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by the Provider. Premium Software will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by Premium Software. Premium Software will not indemnify you for infringement caused by your actions against any third party if the Premium Software program(s) as delivered to you and used in accordance with the terms of this agreement would not otherwise infringe any third party intellectual property rights. This section provides the parties’ exclusive remedy for any infringement claims or damages.