1.     Infringement Warranty


UpperPin represents and warrants that the Product in its current form is an original development of UpperPin or its licensers, and that UpperPin is not aware that the Product infringes upon or violates any patent or trade secret or copyright of any third party.  UpperPin further represents and warrants that it has the unconditional right to market and sell the Product as set forth in this Statement.


2.     Indemnity


UpperPin agrees to defend, indemnify, and hold Customer harmless against any liability or claim that the Product was created in part by violation of the patent, copyright, or trade secret warranties contained in Section 1, and UpperPin will pay resulting costs, damages, and attorneys' fees finally awarded, provided that:


2.1  Customer promptly notifies UpperPin of any such claim and, at UpperPin’s expense, provides UpperPin with all information and assistance necessary to defend or settle such liability or claim; and


2.2  UpperPin has sole control of the defense and all related settlement negotiations.  If such liability or claim occurs, or in UpperPin’s opinion is likely to occur, Customer agrees to permit UpperPin, at UpperPin’s option and expense, either to procure for Customer the right to continue using the Product or to replace or modify the same so that it becomes non-infringing and provides, as nearly as is reasonably possible under the circumstances, the same capability as before.


3.     Limitations on Indemnity


UpperPin shall have no obligation to defend Customer or to pay any costs, damages, or attorneys' fees for any claim against any product other than the original, unmodified form of the Product.  If the Product has been materially altered or modified, the infringement warranties and indemnity provided herewith shall be forfeited.