11.1 Each Party (the “Indemnifying Party”) shall indemnify the other Party, its directors, officers, employees, agents and affiliates (each an “Indemnified Party”) against all liabilities, costs, expenses, damages and losses (collectively, “Losses”) suffered or incurred by the Indemnified Party arising out of or in connection with any actual or threatened claim made against the Indemnified Party by a third party:
(a) for any actual or alleged infringement of that third party's Intellectual Property Rights arising out of, or in connection with, the use of the Services; and
(b) arising out of, or in connection with any actual or alleged breach, misrepresentation, failure or delay in performance of this Agreement, negligence, fraud or willful misconduct by the Indemnifying Party,
save to the extent that such Loss arises out of or results from the gross negligence, willful misconduct or fraud of the Indemnified Party.
11.2 If any third party makes a claim, or notifies an intention to make a claim, against the Indemnified Party which may reasonably be considered likely to give rise to a liability under this indemnity (a “Claim”), the Indemnified Party shall:
(a) as soon as reasonably practicable, give written notice of the Claim to the Indemnifying Party, specifying the nature of the Claim in reasonable detail;
(b) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Indemnifying Party (such consent not to be unreasonably conditioned, withheld or delayed), provided that the Indemnified Party may settle the Claim (after giving prior written notice of the terms of settlement (to the extent legally possible) to the Indemnifying Party, but without needing to obtain the Indemnifying Party's consent) if the Indemnified Party reasonably believes that failure to settle the Claim would be prejudicial to it in any material respect;
(c) give the Indemnifying Party and its professional advisers access at reasonable times (by prior appointment) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Indemnified Party, to the extent necessary to enable the Indemnifying Party and its professional advisers to examine them and to take copies (at the Indemnifying Party's expense) for the purpose of assessing the Claim; and
(d) subject to the Indemnifying Party providing security to the Indemnified Party to the Indemnified Party's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, take such action as the Indemnifying Party may reasonably request to avoid, dispute, compromise or defend the Claim.
11.3 In case of any Claim against Scitix pursuant to clause 11, Scitix may, at its sole discretion, elect to:
(a) procure the rights to use that portion of the Services alleged to be infringing the third party’s Intellectual Property Rights;
(b) replace the alleged infringing portion of the Services with a non-infringing alternative;
(c) modify the alleged infringing portion of the Services to make it non-infringing; or
(d) terminate the allegedly infringing portion of the Services or this Agreement in its entirety.
11.4 If a payment due from the Indemnifying Party under this clause 11 is subject to tax (whether by way of direct assessment or withholding at its source), the amount payable shall be increased such that the net receipt, after tax, to the Indemnified Party in respect of the payment is the same as it would have been were the payment not subject to tax.
11.5 Nothing in this clause 11 shall restrict or limit the Indemnified Party's general obligation at law to mitigate a loss which it may suffer or incur as a result of a matter that may give rise to a claim under this indemnity.
11.6 This clause 11 shall survive the expiry or termination of this Agreement.
