Service Master Subscription Agreement - NEC Corp of America - AFIS Annual Maintenance and WideNet Annual Subscription Fee

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Notwithstanding the foregoing definition, the term Confidential Information does not include information which (i) has been published by the disclosing Party or is otherwise in the public domain through no fault of the receiving Party; (ii) is properly within the legitimate possession of the receiving Party prior to its disclosure hereunder and without any obligation of confidence; (iii) is lawfully received by receiving Party from a third party who lawfully possesses the information and who is not restricted from disclosing the Confidential Information to the receiving Party; (iv) is independently developed by the receiving Party without use of the Confidential Information; or (v) is approved for disclosure by the disclosing Party, in writing, prior to its disclosure. Each Party understands and agrees that in the performance of services under this Agreement, or in contemplation thereof, that a Party may have access to Confidential Information of the other Party. The receiving Party agrees that all Confidential Information disclosed by the other Party shall be held in confidence and used only in performance of services under this Agreement. The receiving Party shall exercise the same standard of care to protect such Confidential Information as is used to protect its own proprietary data, but in no event less than a reasonable standard of care. Confidential Information may be disclosed in response to a valid order of a court or other governmental body or as otherwise required by law, provided, however, that the receiving Party first gives notice to the disclosing Party and has, as appropriate, (i) fully cooperated in the disclosing Party's attempt to obtain a "protective order" from the appropriate court or other governmental body, or (ii) attempted to classify the media containing the Confidential Information to prevent access by the public, in accordance with the provisions of the federal Freedom of Information Act ("FOIA") or similar state statutes. 16. Indemnification. Each Party shall defend, indemnify and hold the other party harmless from and against any and all third -party claims and actions ("Claims") and all costs and expenses (including reasonable attorneys' fees) incidental to such Claims, to the extent proximately and proportionately caused by breach of contract, including but not limited to a breach of representation or warranty, including but not limited to Section 9, violation of the law, rules or regulations, misappropriation or infringement of intellectual property, the gross negligence of the indemnifying party or anyone acting under that party's direction, control, or in its behalf in the course of the performance of its obligations under this Agreement. The indemnified party shall give prompt notice of Claims to the indemnifying party. Promptly after receipt of such notice, the indemnifying party shall assume the defense of such Claim with counsel reasonably satisfactory to the other party. If (i) the indemnifying party fails within a reasonable time after receipt of such notice to assume the defense with counsel reasonably satisfactory to the other party, or (ii) upon petition by the indemnified party, the appropriate court rules that the indemnifying party failed or is failing to vigorously prosecute or defend such Claim, then such other party shall have the right to undertake the defense, compromise and settlement of such Claim for the account and at the expense of the indemnifying party. The indemnified party shall provide reasonable assistance to the indemnifying party, at the indemnifying party's cost and expense, in 5 v11222017