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REV: 12-14-23 MI <br />contractors, or their employees or agents, while performing their duties under this <br />Agreement, if Motorola gives Customer prompt, written notice of any the claim or suit. <br />Motorola will cooperate with Customer in its defense or settlement of the claim or suit. <br />This Section sets forth the full extent of Customer’s general indemnification of Motorola <br />from liabilities that are in any way related to Customer’s performance under this <br />Agreement. <br />12.3.PATENT AND COPYRIGHT INFRINGEMENT INDEMNIFICATION <br />12.3.1.Motorola will defend at its expense any suit brought against Customer to <br />the extent it is based on a third-party claim alleging that the Equipment <br />manufactured by Motorola or the Motorola Software (“Motorola Product”) directly <br />infringes a United States patent or copyright (“Infringement Claim”). Motorola’s <br />duties to defend and indemnify are conditioned upon: Customer promptly notifying <br />Motorola in writing of the Infringement Claim; Motorola having sole control of the <br />defense of the suit and all negotiations for its settlement or compromise; and <br />Customer providing to Motorola cooperation and, if requested by Motorola, <br />reasonable assistance in the defense of the Infringement Claim. In addition to <br />Motorola’s obligation to defend, and subject to the same conditions, Motorola will <br />pay all damages finally awarded against Customer by a court of competent <br />jurisdiction for an Infringement Claim or agreed to, in writing, by Motorola in <br />settlement of an Infringement Claim. <br />12.3.2.If an Infringement Claim occurs, or in Motorola's opinion is likely to occur, <br />Motorola may at its option and expense: (a) procure for Customer the right to <br />continue using the Motorola Product; (b) replace or modify the Motorola Product <br />so that it becomes non-infringing while providing functionally equivalent <br />performance; or (c) accept the return of the Motorola Product and grant Customer <br />a credit for the Motorola Product, less a reasonable charge for depreciation. The <br />depreciation amount will be calculated based upon generally accepted accounting <br />standards. <br />12.3.3.Motorola will have no duty to defend or indemnify for any Infringement <br />Claim that is based upon: (a) the combination of the Motorola Product with any <br />software, apparatus or device not furnished by Motorola; (b) the use of ancillary <br />equipment or software not furnished by Motorola and that is attached to or used in <br />connection with the Motorola Product; (c) Motorola Product designed or <br />manufactured in accordance with Customer’s designs, specifications, guidelines <br />or instructions, if the alleged infringement would not have occurred without such <br />designs, specifications, guidelines or instructions; (d) a modification of the Motorola <br />Product by a party other than Motorola; (e) use of the Motorola Product in a manner <br />for which the Motorola Product was not designed or that is inconsistent with the <br />terms of this Agreement; or (f) the failure by Customer to install an enhancement <br />release to the Motorola Software that is intended to correct the claimed <br />infringement. In no event will Motorola’s liability resulting from its indemnity <br />obligation to Customer extend in any way to royalties payable on a per use basis <br />ATTY/AGR.2023.310/Motorola (Radios) (Page 9 of 62)