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RO COMMUNICATIONS Terms and Conditions to the Agreement (B) Infringement Remedy. If an injunction or order is obtained against TPx performing the Services for Customer by reason of the allegations of infringement of TPx's proprietary materials, or if in TPx's opinion such proprietary materials used or provided with the Services may violate a third party's proprietary rights, then TPx will, at its expense and option: (1) procure for Customer the right to continue to receive the Services; (2) modify the allegedly infringing item to make it non -infringing without substantially reducing functionally or procure a non - infringing replacement; or (3) if neither (1) nor (2) are commercially practical, terminate the Agreement and release Customer from its obligation to make future payments for the Services. (C) Exclusive Remedy. This Section 5(e)(i) contains Customer's exclusive remedies and TPx sole liability for claims of infringement. (ii) Customer Indemnity. If a third party that is not an Affiliate of TPx asserts a claim against TPx that materials provided by or on behalf of Customer to TPx in connection with the Services infringes a U.S. patent existing as of the effective date of the Agreement pursuant to which the Service is provided or a trade secret or copyright owned by that third party (a "Customer Infringement Claim"), then the Customer will, at its own expense defend or settle the Customer Infringement Claim and indemnify TPx for any damages finally awarded against TPx. However, Customer shall have no obligation for any such claim or other obligation for infringement to the extent resulting or alleged to result from: (1) modifications made by TPx, (2) compliance with the instructions, designs or specifications provided by or on behalf of TPx, or (3) TPx's continuing any allegedly infringing activity after being notified thereof or after being informed and provided with modifications that would have avoided the alleged infringement. (iii) Indemnification Procedures. Upon the commencement of any claim, action, suit or proceeding for which a party wishes to seek indemnification under this Section 5(e) (each, a "Third Party Claim"), the party seeking indemnification (the "Indemnified Party") will provide prompt notice to the other party (the "Indemnifying Party") so that the Indemnifying Party has reasonably sufficient time to file, answer and defend such Third Party Claim, provided however, that no delay on the part of the Indemnified Party in providing such notice will relieve the Indemnifying Party from its indemnification obligations except to the extent the Indemnifying Party is prejudiced by such delay. After receiving such notice, the Indemnifying Party will immediately take control of the defense, settlement and investigation of the Third Party Claim, and employ and engage attorneys reasonably acceptable to the Indemnified Party to handle and defend the same, at the Indemnifying Party's sole cost and expense. The Indemnified Party will, at the expense of the Indemnifying Party, reasonably cooperate with the Indemnifying Party and its attorneys in the investigation, trial and defense of the Third Party Claim and any appeal arising therefrom. The Indemnifying Party may settle a Third Party Claim without the prior consent of the Indemnified Party only if the Third Party Claim involves only the payment of money by the Indemnifying Party without any admission of guilt or fault and a full and complete release from continuing and further obligation or liability on the part of the Indemnified Parties is executed by Parties involved in the settlement and delivered to the Indemnified Party. If the Indemnifying Party does not assume full control over the defense of a Third Party Claim subject to such defense as provided in this Section 5(e), the Indemnified Party will have the right to defend the Third Party Claim in such manner as it may deem appropriate, at the cost and expense of the Indemnifying Party. 6. Confidentiality (a) Mutual Confidentiality. This Section sets out the terms for identification of information which is considered confidential and proprietary by a party (the "Discloser"), and restrictions against use and disclosure of such Confidential Information after disclosure to the other party (the "Recipient"). (b) Definition of Confidential Information. "Confidential Information" as used in the Agreement means all proprietary or confidential information that is disclosed to the Recipient by the Discloser, and includes: (i) any and all information relating to products or services provided by a Discloser, its customer -related and financial information, source and executable code, flow charts, drawings, techniques, specifications, development and marketing plans, strategies, forecasts, and sales and marketing materials; (ii) any products or services made available by a party; and (iii) the terms of this Agreement. Confidential Information does not include information that Recipient can show: (A) was rightfully in Recipient's possession without any obligation of confidentiality before receipt from the Discloser; (B) is or becomes a matter of public knowledge through no fault of Recipient; (C) is 000120 4V919V1328-9742-EASE-4663-DBAC J/11/1111 11.11 - I'll