Incredimail 2013 Annual Report Download - page 195

EXECUTION VERSION
10.4 Right to Ameliorate Damages . If an Indemnified Party seeks indemnity under this Agreement for a claim for infringement of
Intellectual Property Rights, the Indemnifying Party may, in its sole discretion and at its sole expense and without limiting any of its obligations
under Section 10.1 or 10.2, as the case may be: (a) obtain the right for the Indemnified Party to continue to use the allegedly infringing service,
technology, content or material; or (b) provide a non-infringing substitute with at least the same features, functions and performance as the
allegedly infringing service, technology, content or material (a “Non-Infringing Alternative”), in which case the Indemnified Party will use
commercially reasonable efforts to implement promptly such Non-Infringing Alternative, provided that the Indemnifying Party agrees to
reimburse the Indemnified Party for any out-of-pocket expenses reasonably incurred to implement the Non-Infringing Alternative.
10.5 Limitations on Indemnity Obligations . Notwithstanding anything to the contrary, neither Party will have any obligation to
provide any defense or indemnification under this Agreement with respect to any Third Party Claim to the extent arising from any use of the
Indemnifying Party’s services, technology, content or material in a manner that is prohibited by this Agreement. In addition, notwithstanding
anything to the contrary, neither Party will have any obligation to provide any defense or indemnification under this Agreement with respect to
any claim of infringement, misappropriation or other violation of third-party Intellectual Property Rights to the extent arising from (a) the
combination or use of the Indemnifying Party’
s services, technology, content or material with any other services, technology, content or material
that were neither (i) provided or specified by the Indemnifying Party or its Affiliates; nor (ii) specifically designed or reasonably required for use
as contemplated by this Agreement, if, in the absence of such combination, the infringement, misappropriation or violation would not have
occurred; (b) modification of the Indemnifying Party’
s services, technology, content or material by the other Party, any of its Indemnified Parties
or any customer of any of the foregoing, where, in the absence of such modification, the infringement, misappropriation or violation would not
have occurred; or (c) use of any services, technology, content or material after the date by which the Indemnified Party reasonably could have
implemented a Non-Infringing Alternative pursuant to Section 10.4.
11. INSURANCE
Throughout the Term and for two (2) years thereafter, Conduit will maintain from an internationally reputable insurance carrier (e.g., Lloyds of
London) (a) Errors and Omissions insurance coverage with an aggregate limit of [***] and Directors and Officers insurance coverage
with an aggregate limit of [***]
12. DISPUTE RESOLUTION; ARBITRATION
12.1 Dispute Resolution . Except with respect to a Party’s request for equitable or provisional relief or to otherwise protect its
Intellectual Property Rights or Confidential Information provided under this Agreement, no civil action, proceeding as set forth below with
respect to any dispute, controversy or claim arising out of, or relating to, or in connection with, this Agreement, or the breach, termination, or
validity hereof, including the validity of this dispute resolution provision (each of which dispute, controversy, or claim will be termed a
“Dispute”) between the Parties may be commenced, nor may a Party terminate any portion of this Agreement for a material breach of a material
warranty, representation, covenant or obligation of this Agreement, until the Parties have first attempted in good faith to resolve the Dispute
amicably in accordance with this Section 12.1.
12.1.1 Notice of Dispute . In the event of a Dispute, the Party raising the Dispute shall give written notice to the other
Party setting forth the details of the Dispute and any proposed solution or compromise. The Parties shall cooperate in good faith to resolve the
Dispute within 30 days of receipt of the notice of Dispute.
CONFIDENTIAL
-
23
-