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Party Products) or as licensee of all such rights from the owner
<br />thereof.
<br />8.2 Intellectual Property. Active and its licensors shall
<br />retain all right, title, and interest in and to the Products and the
<br />results of the Services and to all software, trademarks, service
<br />marks, logos, and trade names and other worldwide
<br />proprietary rights related thereto ( "Intellectual Property ").
<br />Client shall use the Intellectual Property only as provided by
<br />Active, and shall not alter the Intellectual Property in any way,
<br />or act or permit action in any way that would impair Active's
<br />or its licensors' rights in its Intellectual Property. Client
<br />acknowledges that its use of the Intellectual Property shall not
<br />create in Client or any other person any right, title, or interest
<br />in or to such Intellectual Property. Any goodwill accruing
<br />from the use of the Intellectual Property shall inure solely to
<br />the benefit of Active or its licensors, as applicable.
<br />INDEMNIFICATI ®N
<br />(a) Each party (the "Indemnifying Party ") shall defend,
<br />settle, and pay damages (including reasonable attorneys' fees)
<br />( "Damages ") relating to any third party claim, demand, cause
<br />of action or proceedings (whether threatened, asserted, or
<br />filed) ( "Claims ") against the other party hereto (the
<br />"Indemnified Party ") to the extent that such Claim is based
<br />upon provision, by the Indemnifying Party, of materials,
<br />products, or services as part of such party's obligations
<br />hereunder that infringe the intellectual property rights of any
<br />third party provided that such materials, products, or services
<br />are used in accordance with this Agreement.
<br />(b) If any Claim that Active is obligated to defend, settle,
<br />and pay damages to Client under this Section 9(a) has
<br />occurred or, in Active's opinion, is likely to occur, Active
<br />may, at its option and expense either (1) obtain for Client the
<br />right to continue to use the applicable Software, (2) replace or
<br />modify the Software so it becomes non - infringing, without
<br />materially adversely affecting the Software's specified
<br />functionality, or (3) if (1) or (2) are not readily available after
<br />using reasonable commercial efforts or, if neither of the
<br />foregoing options is commercially reasonable, refund a pro -
<br />rata portion of the fees paid by Client based on its lost use and
<br />terminate this Agreement. Active shall not be obligated to
<br />defend, settle, or pay Damages for any Claims to the extent
<br />based on: (i) any Client or third party intellectual property or
<br />software incorporated in or combined with the Software where
<br />in the absence of such incorporated or combined item, there
<br />would not have been infringement, but excluding any third
<br />party software or intellectual property incorporated into the
<br />Software at Active's discretion; (ii) Software that has been
<br />altered or modified by Client, by any third party or by Active
<br />at the request of Client (where Active had no discretion as to
<br />the implementation of modifications to the Software or
<br />documentation directed by Client), where in the absence of
<br />such alteration or modification the Software would not be
<br />infringing; or (iii) use of any version of the Software with
<br />respect to which Active has made available a non - infringing
<br />updated, revised or repaired subsequent version or other
<br />applicable update, patch or fix.
<br />Last revised October 4, 2013
<br />(c) Client agrees to defend, settle, and pay Damages relating
<br />to Claims to the extent based on Client's or any of its User's
<br />breach of Section 5.
<br />(d) Indemnification Claims Procedure. Each party's
<br />obligations under this Section are conditioned upon (1) prompt
<br />written notice of the existence of a Claim, provided that a
<br />failure of prompt notification shall not relieve the
<br />Indemnifying Party of liability hereunder except to the extent
<br />that defenses to such Claim are materially impaired by such
<br />failure of prompt notification; (2) sole control over the defense
<br />or settlement of such Claim by the Indemnifying Party; and
<br />(3) the provision of assistance by the Indemnified Party at the
<br />Indemnifying Party's request to the extent reasonably
<br />necessary for the defense of such Claim.
<br />(e) For the purposes of this Section 9, reference to Active
<br />shall also include its suppliers and licensors.
<br />(f) Notwithstanding the foregoing, Client shall not be bound
<br />by the terms of this Section 9 to the extent precluded by
<br />applicable law (e.g., sovereign immunity of a governmental
<br />entity).
<br />MWEIDMIR
<br />10.1 Entire Agreement. This Agreement, including all
<br />attachments and referenced Appendices, Schedules and
<br />exhibits, constitutes the complete and exclusive statement of
<br />the agreement between Active and Client with respect to the
<br />subject matter hereof. It supersedes and replaces all oral or
<br />written RFPs, proposals, prior agreements, and other prior or
<br />contemporaneous communications between the parties
<br />concerning the subject matter of this Agreement. This
<br />Agreement may not be modified or altered except by written
<br />instrument duly executed by both parties, except that Active
<br />may fill future purchase or other orders for further goods or
<br />services available under this Agreement and, if Active does so,
<br />the provisions of this Agreement will contain the only
<br />commercial terms applicable to such transaction despite such
<br />purchase or other order stating otherwise. Any addendum
<br />attached hereto shall form an integral part of this Agreement
<br />and, in the event of any inconsistency between this Agreement
<br />and any addendum, the provisions of the addendum shall
<br />prevail; provided however, in the case of indemnification,
<br />limitations of liability, and confidentiality obligations, this
<br />Agreement shall always control. Any `click -wrap' agreement,
<br />terms of use, electronic acceptance or other terms and
<br />conditions which attempt to govern the subject matter of this
<br />Agreement that either party might be required to acknowledge
<br />or accept before entering into this Agreement are of no force
<br />and effect as between Client and Active and are superseded by
<br />this Agreement.
<br />10.2 Force Majeure. Dates or times by which either party is
<br />required to perform under this Agreement, excepting the
<br />payment of any fees or charges due hereunder, will be
<br />postponed automatically to the extent that any party is
<br />prevented from meeting them by causes beyond its reasonable
<br />control, provided such party promptly notifies the other
<br />thereof and makes reasonable efforts to perform.
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