by or asserted against Subscriber, its employees, directors, and other agents to the extent that the Claims and Losses result: (i) from acts or omissions of NASDAQ OMX, its employees, directors, agents or associated persons; or from the receipt or use of Subscriber’s Data (including representations about Subscriber’s Data) by NASDAQ OMX, its employees, directors, or agents, or (ii) as a result of any alleged infringement or misappropriation by the System or the Service of any third parties’ intellectual property rights, unless the Claims or Losses are directly attributable to Subscriber, its employees, directors, or other agents’ gross negligence or willful misconduct. NASDAQ’sNASDAQ OMX’s obligation to defend and indemnify under this subsection shall be conditioned on the following: (i) Subscriber shall promptly notify NASDAQ OMX in writing of the claim, action or allegation (but, in any event, in a time frame that does not prejudice the rights of Subscriber or NASDAQ OMX); (ii) Subscriber shall cooperate fully with NASDAQ OMX in the defense thereof and NASDAQ OMX shall be liable to Subscriber for Subscriber’s reasonable expenses (excluding reimbursement for the time value of Subscriber’s employees, directors, and other agents in providing such cooperation); and (iii) NASDAQ OMX shall have sole control of the defense and all related settlement negotiations, but, upon Subscriber’s request, shall apprise Subscriber of the status of any proceedings or negotiations.
Subscriber’s duty of cooperation in litigation shall not be deemed to be a waiver of Subscriber’s attorney-client, attorney work product, or other legal privilege.
Notwithstanding anything to the contrary in this Agreement, NASDAQ OMX shall NOT have the obligation to defend, indemnify and hold Subscriber, its employees, directors, agents or associated persons harmless for any and all Claims and Losses imposed on, incurred by or asserted against Subscriber, its employees, directors, other agents and affiliates as a result of any allegation of infringement or misappropriation if the System and/or Service has not been used in accordance with this Agreement or to the extent it is based on use of a superseded version of the System and/or Service if such infringement or misappropriation would have been avoided by use of the current version of the System and/or Service or if the infringement or misappropriation claim, action, or allegation is the result of the combination, operation, or use of the System and/or Service with hardware, software or materials not furnished by NASDAQ OMX if such infringement or misappropriation would have been avoided by the use of the System and/or Service without such hardware, software or materials.
In the event of a claim, action or allegation of infringement or misappropriation or if, in NASDAQ’sNASDAQ OMX’s opinion, such a claim, action or allegation is likely to occur or if the use of the System and/or Service is enjoined because of infringement or misappropriation, NASDAQ OMX may, at its sole option and expense, procure for Subscriber the right to continue using the System and/or Service, replace or modify the System and/or Service to be non-infringing, or require the return of the Licensed Programs.