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"Losses") to the extent based upon a Claim. Excluded from these indemnification obligations are Claims arising
<br />from the (i) use of the Software, Services, or Site in violation of this Agreement or applicable law; (ii) use of the
<br />Software, Services or Site after Agency360 notifies Customer to discontinue use because of an infringement
<br />claim; (iii) modifications to the Software, Services or Site not made by Agency360; (iv) Claims caused in whole
<br />or in part by the acts or omissions of third party suppliers or vendors of any products or services; or (v) use of the
<br />Software, Services, or Site in combination with any software, application, or service not provided or expressly
<br />approved by Agency360.
<br />(b) Agency360's Indemnification Procedure. If a Claim is brought or threatened, Agency360 shall,
<br />at its sole option and expense, use commercially reasonable efforts to either (i) procure for Customer the right to
<br />continue using the Software, Services, or Site without cost to Customer; (ii) modify or replace all or portions of
<br />the Software, Services or Site as needed to avoid infringement, such update or replacement having substantially
<br />similar or better capabilities; or (iii) if (i) and (ii) are not commercially feasible, terminate the Agreement and
<br />provide to the Customer any pro rata refund of the Fees pre -paid under the Agreement for the remaining portion
<br />of the Term. The rights and remedies granted to Customer under this Section I I (a) -(b) state Agency360's entire
<br />liability, and Customer's exclusive remedy, with respect to any claim of infringement of the Intellectual Property
<br />Rights of any third party.
<br />(c) Disclosure of Customer Data Indemnity. Agency360 shall, at its expense and subject to the
<br />limitations set forth in this Section I I. defend, hold harmless, and indemnify Customer from and against any
<br />Claims that arise out of or result directly from Agency360's gross negligence or willful misconduct in preventing
<br />unauthorized access to Customer Confidential Information and from and against liability for any Losses to the
<br />extent based upon such Claims. Agency360 shall, at its own expense, defend, hold harmless, and indemnify
<br />Customer from and against any Claims and liability for any Losses from the unauthorized access to Customer
<br />Confidential Information. If Agency360 complies with this Section I I(c). Customer shall be entitled, as its sole
<br />and exclusive remedy for Claims under this Section 12(c), to receive any indemnification rights and to terminate
<br />the Agreement and receive any pro rata refund of the Fees pre -paid under the Agreement for the remaining
<br />portion of the Term. The indemnity set forth in this Section I I (c) shall not apply to any Claim arising directly or
<br />indirectly from failures of networks, telecommunications, or equipment or other failures of third party suppliers or
<br />vendors of any Services, except as otherwise stated in this Agreement.
<br />(d) Customer's Indemnity. Customer shall, at its expense, indemnify, defend, and hold harmless
<br />Agency360, its Affiliates, its licensors, and their respective directors, officers, employees, and agents from and
<br />against any and all Claims arising from this Agreement, and shall hold Customer harmless from and against any
<br />and all Losses due to (i) Customer's or Users' use of any Services; (ii) third party Claims of infringement based
<br />on information, data, or content Customer submitted in connection with any Services; (iii) any fraud,
<br />misrepresentation or other breach of this Agreement by Customer; (iv) third party claims, actions, or allegations
<br />brought against Agency360 arising out of Customer's use of the Software, Services, or Site; or (v) whatsoever
<br />resulting from Customer or its affiliates', employees', contractors', or agents' breach of HIPAA or any other state
<br />or federal medical privacy or electronic privacy laws.
<br />(e) Other Indemnification Procedures and Survival. In the event of a potential indemnity
<br />obligation under this Section 11 the indemnified party shall: (i) promptly notify the indemnifying party in writing
<br />of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon
<br />request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party's cost and
<br />expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising
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