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10. Indemnity by Nod For Infringement

a. Defence of Third Party Claims Nod will defend or settle any third party claims against Customer alleging that the Service (not related to Customer Data) used in accordance with this agreement violates a copyright, patent, trademark or other intellectual property right, if Customer:

•    Promptly notifies Nod of the claim in writing;

•    Cooperates with Nod in the defence; and

•    Allows Nod to solely control the defence or settlement of the claim.

Nod will pay infringement claim defence costs, and Nod negotiated settlement amounts, and court awarded damages.

b. Remedies. If such a claim appears likely, then Nod may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If Nod determines that none of these are reasonably available, then Nod will terminated the Service and provide a refund of any prepaid and unused amounts.

c. Exclusions. Nod has no obligation for any claim arising from:

•    Nod’s compliance with Customer’s designs, specification, instructions, or technical information;

•    Modifications made other than by Nod;

•    A combination of the Service with other technology where the infringement would not occur but for the combination; or

•    Technology not provided by Nod.

This section contains Customer’s exclusive remedies and Nod’s sole liability for intellectual property infringement claims.

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