IP Infringement Indemnity Agreement Template

This IP Infringement Indemnity Agreement (the “Agreement”) is entered into as of [Effective Date] by and between:

Indemnifying Party: [Legal Name], a [State/Country] [entity type], address: [Address] (“Indemnitor”).

Indemnified Party: [Legal Name], a [State/Country] [entity type], address: [Address] (“Indemnitee”).

1. Definitions

1.1 Claim means any third-party claim, demand, action, suit, or proceeding alleging infringement or misappropriation of IP.

1.2 Covered IP (select): ☐ copyright ☐ trademark ☐ trade secrets ☐ patents ☐ other: [**].

1.3 Covered Materials means the products/services/content/software provided by Indemnitor under: ☐ agreement dated [Date] ☐ SOW [**] ☐ other: [__].

1.4 Losses means damages, settlements, judgments, and reasonable attorneys’ fees and costs.

2. IP Indemnity

2.1 Indemnitor will indemnify Indemnitee from and against Losses arising out of any Claim alleging that the Covered Materials infringe or misappropriate Covered IP, provided Indemnitee uses the Covered Materials as authorized.

3. Defense and Procedure

3.1 Notice. Indemnitee will provide prompt written notice of a Claim. Failure to give prompt notice reduces obligations only to the extent of material prejudice.

3.2 Control of Defense. Indemnitor will control the defense with counsel reasonably acceptable to Indemnitee. Indemnitee may participate at its own expense.

3.3 Cooperation. Indemnitee will reasonably cooperate, including providing information and access to relevant records.

3.4 Settlement. Indemnitor may not settle without Indemnitee’s consent if the settlement: (i) admits fault by Indemnitee, (ii) imposes injunctive relief on Indemnitee, or (iii) does not include a full release.

4. Exclusions

4.1 Indemnitor has no obligation for Claims arising from:

(a) Indemnitee’s modifications not made by Indemnitor;

(b) combination with items not provided by Indemnitor, where the Claim would not have arisen but for the combination;

(c) use outside the scope of the license/authorization;

(d) Indemnitee’s failure to implement updates provided to avoid infringement (if applicable);

(e) Indemnitee-provided materials or specifications;

(f) third-party open-source or third-party materials, unless expressly covered: [Specify].

5. Remedies

5.1 If a Claim is made or likely, Indemnitor may, at its option:

(a) obtain the right for Indemnitee to continue using the Covered Materials;

(b) modify the Covered Materials so they are non-infringing while maintaining substantially equivalent function;

(c) replace the Covered Materials with non-infringing substitutes; or

(d) if (a)-(c) are not commercially reasonable, terminate the affected portion and refund: $[Amount/method], less reasonable depreciation (optional).

6. Limitation of Liability (Optional)

6.1 Liability cap (select):

☐ No cap

☐ Cap at $[Amount]

☐ Cap at fees paid in last [__] months

☐ Other: [Cap]

6.2 Consequential damages: ☐ excluded ☐ not excluded.

6.3 Carve-outs (optional): Liability limits do not apply to: ☐ indemnity obligations ☐ willful misconduct ☐ confidentiality breaches ☐ other: [__].

7. Term

7.1 This Agreement begins on the Effective Date and applies to Claims asserted during and after the term for Covered Materials provided during the term, subject to any limitation period.

8. Notices

8.1 Notices must be in writing and delivered to the addresses above.

9. Governing Law

9.1 This Agreement is governed by the laws of [State/Country].

10. Entire Agreement

10.1 This Agreement is the entire agreement regarding IP indemnity between the Parties.

Signatures

Indemnitor: [Legal Name]

Name/Title: [Authorized Signer]

Date: [Date]

Signature: ___________________________

Indemnitee: [Legal Name]

Name/Title: [Authorized Signer]

Date: [Date]

Signature: ___________________________