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third-party claims, demands, suits, actions, causes of action, of any kind whatsoever(together a"Claim"), <br /> and Itron will indemnify and hold harmless Customer Indemnitees from and against all damages, losses, <br /> costs and/or expenses(including legal fees and disbursements)awarded against Customer in any such <br /> Claim, or those costs and damages agreed to by Itron in a monetary settlement of such Claim, to the extent <br /> resulting from damages to persons or real or tangible property, bodily injury or death caused by Itron's <br /> negligence or intentional misconduct(including that of its employees, agents, and contractors) arising in <br /> connection with this Agreement. <br /> 12.2. Infringement Claims. Itron shall defend the Customer Indemnitees from and against any and all <br /> claims, demands, suits,actions, causes of action, of any kind whatsoever, for damages, losses,costs and/or <br /> expenses(including legal fees and disbursements)by an unaffiliated third party to the extent resulting from <br /> any allegation that any Itron Deliverables and/or Services constitute a direct infringement,violation or <br /> misappropriation of any such third party's Intellectual Property rights. The foregoing does not apply to <br /> products that are not manufactured by Itron or to software licensed by third parties. <br /> 12.3. Conditions to Infringement Claim Defense. Itron's infringement defense obligations under <br /> Section 12.2 are conditioned on Customer's agreement that if the applicable product or service becomes, <br /> or in Itron's opinion is likely to become,the subject of such a claim, Itron will have the right,at Itron's <br /> sole option and expense, either to procure the right for Customer to continue using the affected product or <br /> service or to replace or modify the same so that it becomes non-infringing. Such replacements or <br /> modifications will be functionally equivalent to the replaced product or service. If the foregoing <br /> alternatives are not available on terms that are commercially reasonable in Itron's sole judgment, Itron <br /> shall have the right to require Customer to cease using the affected product or service in which case Itron <br /> will refund to Customer the depreciated value of the affected product or the unused portion of the service, <br /> as the case may be. <br /> 12.4. Exclusions to Infringement Claim Defense. Itron shall have no obligation under this Agreement to <br /> the extent any claim of infringement or misappropriation results from: (i)use of a product or service, other <br /> than as permitted under this Agreement or as intended by Itron, if the infringement would not have <br /> occurred but for such use; (ii)use of any product or service in combination with any other product, <br /> equipment, software or data, if the infringement would not have occurred but for such combination; (iii) <br /> any use of any release of a software or any firmware other than the most current release made available to <br /> Customer, (iv)any claim based on Customer's use of a product after Itron has informed Customer of <br /> modifications or changes to the product required to avoid such claims and offered to implement those <br /> modification or changes, if such claim would have been avoided or mitigated by the implementation of <br /> Itron's suggestions, (v)any modification to a product made by a person other than Itron or an authorized <br /> representative of Itron, or(vi) compliance by Itron with specifications or instructions supplied by <br /> Customer. Itron shall not be liable hereunder for enhanced or punitive damages that could have been <br /> avoided or reduced by actions within the control of Customer. <br /> 12.5. Conditions to Defense. As a condition to Itron's defense obligations under this Agreement, <br /> Customer will provide Itron with prompt written notice of the claim, permit Itron to control the defense, <br /> settlement, adjustment or compromise of the claim and provide Itron with reasonable assistance in <br /> connection with such defense; however, Itron shall not consent to any judgment or settlement of the <br /> foregoing,that creates an obligation on any Customer Indemnitee without first obtaining such <br /> indemnitee's prior written consent. Customer may employ counsel at its own expense to assist it with <br /> respect to any such claim. <br /> 12.6. THIRD PARTY CLAIM DISCLAIMER. THIS SECTION CONSTITUTES ITRON'S SOLE <br /> AND EXCLUSIVE OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT <br /> AGAINST CUSTOMER. <br /> 13. Intellectual Property. <br /> 12 <br />