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amounts pre -paid for the Infringing Product (if the Infringing Product is a software
<br />Product, i.e., Licensed Software or Subscription Software) or (ii) a credit for the
<br />Infringing Product, less a reasonable charge for depreciation (if the Infringing
<br />Product is Equipment, including Equipment with embedded software).
<br />7.2.2. In addition to the other damages disclaimed under this Agreement, Motorola will
<br />have no duty to defend or indemnify Customer for any Infringement Claim that
<br />arises from or is based upon: (a) Customer Data, Customer -Provided Equipment,
<br />Non -Motorola Content, or third -party equipment, hardware, software, data, or other
<br />third -party materials; (b) the combination of the Product or Service with any
<br />products or materials not provided by Motorola; (c) a Product or Service designed,
<br />modified, or manufactured in accordance with Customer's designs, specifications,
<br />guidelines or instructions; (d) a modification of the Product or Service by a party
<br />other than Motorola; (e) use of the Product or Service in a manner for which the
<br />Product or Service was not designed or that is inconsistent with the terms of this
<br />Agreement; or (f) the failure by Customer to use or install an update to the Product
<br />or Service, after a reasonable time of receiving notification of update by Motorola,
<br />that is intended to correct the claimed infringement. In no event will Motorola's
<br />liability resulting from an Infringement Claim extend in any way to any payments
<br />due on a royalty basis, other than a reasonable royalty based upon revenue
<br />derived by Motorola from Customer from sales or license of the Infringing Product.
<br />7.2.3. This Section 7.2 — Intellectual Property Infringement provides Customer's sole
<br />and exclusive remedies and Motorola's entire liability in the event of an
<br />Infringement Claim. For clarity, the rights and remedies provided in this Section
<br />are subject to, and limited by, the restrictions set forth in Section 8 — Limitation
<br />of Liability below.
<br />7.3. Customer Indemnity. Customer will defend, indemnify, and hold Motorola and its
<br />subcontractors harmless from and against any and all damages, losses, liabilities, and expenses
<br />(including reasonable fees and expenses of attorneys) arising from any actual or threatened third -
<br />party claim, demand, action, or proceeding to the extent caused by (a) Customer -Provided
<br />Equipment, Customer Data, or Non -Motorola Content, including any claim, demand, action, or
<br />proceeding alleging that any such equipment, data, or materials (or the integration or use thereof
<br />with the Products and Services) infringes or misappropriates a third -party intellectual property or
<br />other right, violates applicable law, or breaches the Agreement; (b) Customer -Provided
<br />Equipment's failure to meet the minimum requirements set forth in the applicable Documentation
<br />or match the applicable specifications provided to Motorola by Customer in connection with the
<br />Products or Services; (c) Customer's (or its service providers, agents, employees, or Authorized
<br />User's) negligence or willful misconduct; and (d) Customer's or its Authorized User's breach of
<br />this Agreement. This indemnity will not apply to the extent any such claim is caused by Motorola's
<br />use of Customer -Provided Equipment, Customer Data, or Non -Motorola Content in violation of
<br />the Agreement. Motorola will give Customer prompt, written notice of any claim subject to the
<br />foregoing indemnity. Motorola will, at its own expense, cooperate with Customer in its defense or
<br />settlement of the claim.
<br />8. Limitation of Liability.
<br />8.1. DISCLAIMER OF CONSEQUENTIAL DAMAGES. EXCEPT FOR PERSONAL INJURY
<br />OR DEATH, MOTOROLA, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS,
<br />DIRECTORS, EMPLOYEES, SUBCONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS
<br />(COLLECTIVELY, THE "MOTOROLA PARTIES") WILL NOT BE LIABLE IN CONNECTION
<br />WITH THIS AGREEMENT (WHETHER UNDER MOTOROLA'S INDEMNITY OBLIGATIONS, A
<br />Motorola Customer Agreement 8
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