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X ShotSpotter Flex, SERVICES AGREEMENT 8
<br />expenses (including reasonable attorney fees) arising out of a claim asserted in a lawsuit or action
<br />against the end-user customer by a third party unrelated to the customer, in which such third party
<br />asserts a claim that the Service and/or Software, when used in accordance with SST's specifications and
<br />for the purposes intended, infringes any patent, copyright, trademark, or other intellectual property right.
<br />Provided, however, that SST shall have the right to choose counsel to defend such suit and/or action,
<br />and to control the settlement (including determining the terms and conditions of settlement) and the
<br />defense thereof provided that SST will not agree to any settlement acknowledging liability on the part of
<br />the Customer without obtaining the Customer's prior written consent, and that Customer shall provide
<br />SST with reasonably prompt written notice of any such suit or action, and of any oral, written or other
<br />communication or other information or circumstances of which Customer becomes aware that could
<br />reasonably be expected to lead to such a suit or action (including any and all cease and desist demands
<br />or warnings, and offers or invitations to enter license agreements), and shall provide SST all reasonable
<br />assistance and information in connection with SST's investigation and defense of any claim of
<br />infringement.
<br />Further provided, however, that this section shall not apply and SST shall have no obligation to defend
<br />and indemnify Customer in the event the Customer or a reseller, integrator, service provider or supplier
<br />modifies, alters, substitutes, or supplements any of the Service, or Software, or to the extent that the
<br />claim of infringement arises from or relates to the integration, bundling, merger or combination of any of
<br />the same with other hardware, software, systems, technologies, or components, functions, capabilities or
<br />applications not licensed by SST as part of the Service, nor shall it apply to the extent that the claim of
<br />infringement arises from or relates to meeting or conforming to any instruction, design, direction or
<br />specification furnished by the Customer, nor to the extent that the Service or Software are used for or in
<br />connection with any purpose, application or function other than detecting and locating gunshots
<br />exclusively through acoustic means.
<br />If, in SST's opinion, the Service, or Software may, or is likely to become, the subject of such a suit or
<br />action, does become the subject of a claim asserted against a Customer in a lawsuit which SST is or may
<br />be obliged to defend under this section, or is determined to infringe the foregoing patents or copyrights of
<br />another in a final, non -appealable judgment subject to SST's obligations under this section, then SST
<br />may in full and final satisfaction of any and all of its obligations under this section, at its option: (1) procure
<br />for Customer the right to continue using the affected Service or Software, (2) modify or replace such
<br />Service or Software to make it or them non -infringing, or (3) refund to the purchaser a pro -rata portion of
<br />the annual Service price paid for the Service System.
<br />The foregoing section states the entire liability of SST and Customer's and its suppliers' exclusive
<br />remedy for or relating to infringement or claims or allegations of infringement of any patent,
<br />copyright, or other Intellectual property rights inor to the system, system components, and
<br />REV: 06-19-18 MI
<br />Page 8 of 20
<br />ATTY/AGR.2018.131 /ShotSpotter
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