ACA will defend the Customer at its own expense against any claims from third parties that are based on the assertion that products developed by ACA constitute a breach of a Belgian intellectual property right, and ACA will indemnify or reimburse the Customer as specified below. This obligation is subject to the following conditions:
- For insurance reasons, each claim must be notified in writing to ACA by the Customer immediately, and in any case within ten working days after taking cognisance thereof, under penalty of forfeiture.
- The Customer must provide ACA with the necessary powers of attorney, information and cooperation in order, if necessary, to defend the Customer in the above-mentioned actions, and the Customer will grant exclusive control of the amicable settlement and/or proceedings to ACA.
- The infringement may not be related to changes to the products made by the Customer, or allowed to be made by third parties.
If a court via a res judicata decision determines that the products developed by ACA itself infringe any Belgian intellectual property rights of a third party or where there is a good chance in the opinion of ACA that these products are the object of a relevant claim, the Customer confers on ACA the right, according to its choice and at its own expense:
- to obtain the right for the Customer to use the developed and delivered product,
- to replace the supplied product with a similar product that does not constitute an infringement,
- to modify the supplied product in such a manner that it no longer infringes and is still equivalent, or
- to reimburse the initial compensation for the infringing products (minus a fee for use based on a 5-year amortisation period).
Any other or further liability or indemnification obligation of ACA for infringement of intellectual property rights of third parties is excluded, including liability and indemnification obligations of ACA for infringements caused by the use of the products supplied in a non-ACA modified form, or use in conjunction with goods or products not delivered by ACA or in any other way than that for which the products were developed or intended.