9.2 CTERA shall promptly notify You of any claim subject to indemnification; provided that CTERA's failure to do so shall not
affect Your obligations hereunder, except to the extent that CTERA's failure to promptly notify You materially delays or
prejudices Your ability to defend the claim. At CTERA's option, You will have the right to defend against any such claim with
counsel of Your own choosing (subject to CTERA's written consent) and to settle such claim as You deem appropriate, provided
that You shall not enter into any settlement without CTERA's prior written consent and provided that CTERA may, at any time,
elect to take over control of the defense and settlement of the claim.
10. Indemnification by CTERA
Notwithstanding CTERA’s disclaimer of any warranty of non-infringement as set forth in Section 7 above, in special
circumstances, in CTERA’s sole discretion, CTERA may choose to indemnify You in accordance with the provisions of this Section
10.
10.1 Indemnification. CTERA may defend or settle, at its option and expense, any action brought by a third party against You,
only to the extent such action arises from any third party claim brought against You alleging that the Software infringes any
patent, copyright, trademark, trade secret, or other intellectual property right of any third party (the "IP Claim"), and may pay all
costs, liabilities, damages and legal fees finally awarded against You in, or paid in settlement of, such action.
10.2 Remedy by CTERA. In the event that any Software or portion thereof is held, or in CTERA’s reasonable opinion may be
held, to constitute an infringement, CTERA, at its option and expense, may either (i) obtain for You the right to continue to use
such Software as contemplated herein, (ii) modify such Software so that it becomes non-infringing, but without materially
altering its functionality, (iii) replace such Software with a functionally equivalent non infringing Product, or (iv) terminate this
Agreement and provide you with a refund of the amount paid for the infringing Software.
10.3 Exceptions. The foregoing does not apply to claims to the extent arising from: (i) the combination of a Software with other
products not supplied by or on behalf of CTERA where such claim would not have arisen from the use of the Software standing
alone, (ii) compliance by CTERA with Your specifications, (iii) any modification of the Software not made by or on behalf of
CTERA, where such claim would not have arisen but for such modification, or (iv) where You continue an activity where such
claim would not have arisen but for such activity after having received and had a commercially reasonable time to install
modifications from CTERA that would have completely avoided the activity.
10.4 Entire Liability. This section 10 states the entire liability of CTERA and Your exclusive remedy for any proceedings or claims
that the Software infringes or misappropriates a third party's intellectual property, in respect of which CTERA chooses to provide
indemnification.
10.5 Requirements for Indemnity. You agrees to provide CTERA with (i) prompt written notice of the IP Claim giving rise to
CTERA’s indemnity option hereunder, (ii) sole control over the defense or settlement of such claim or action, if CTERA so
requests (provided that CTERA shall not, without Your prior written consent, settle any such claim or action if such settlement
contains a stipulation to or admission or acknowledgment of any liability or wrongdoing on Your part), and (iii) reasonable
information and assistance in the defense and/or settlement any such claim or action at CTERA’s option and expense.
11. Miscellaneous Provisions
11.1 The Software may be subject to export control laws of the State of Israel and/or may be subject to additional export control
laws applicable to You or in Your jurisdiction. You shall not ship, transfer, or export the Software into any country, or make
available or use the Software in any manner, prohibited by law. You warrant and agree that You are not: (i) located in, under the
control of, or a national or resident of Cuba, Iran, North Korea, Syria or Sudan, or (ii) on the U.S Treasury Department list of
Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders.
11.2 This agreement will be governed by and construed in accordance with the laws of the State of Israel, without giving effect to
any conflict of laws and provisions that would require the application of the laws of any other jurisdiction. The parties hereby
expressly reject any application to this Agreement of (a) the United Nations Convention on Contracts for the International Sale of
Goods; and (b) the 1974 Convention on the Limitation Period in the International Sale of Goods, as amended by that certain
Protocol, done at Vienna on April 11, 1980.
11.3 All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the competent courts of Tel Aviv,
Israel, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts, except that nothing
will prohibit CTERA from instituting an action in any court of competent jurisdiction to obtain injunctive relief or protect or
enforce its intellectual property rights.
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