PROVIDED THAT THIS SECTION 14.3(C) SHALL APPLY
ONLY TO CLAIMS BY SUCH THIRD PARTY THAT ARE BASED ON ACTS OR OMISSIONS OCCURRING
DURING THE PERIOD FROM AND AFTER THE DATE OF SUCH ASSUMPTION;
(C)
HAWAIIAN TELCOM'S FAILURE TO OBTAIN ANY
REQUIRED CONSENTS; PROVIDED, HOWEVER, IF THE FAILURE TO OBTAIN A REQUIRED
CONSENT IS AN INFRINGEMENT OR ALLEGED INFRINGEMENT OF INTELLECTUAL PROPERTY,
THIS SECTION 14.3 SHALL NOT APPLY AND SECTION 14.5 AND 3.8(C) SHALL CONSTITUTE
HAWAIIAN TELCOM'S SOLE AND EXCLUSIVE OBLIGATIONS AND LIABILITY WITH RESPECT TO
THE FAILURE TO OBTAIN SUCH REQUIRED CONSENT;
(D)
ANY THIRD-PARTY CLAIM WHICH ARISES IN
CONNECTION WITH THE USE BY HAWAIIAN TELCOM OF ANY DELIVERABLE OR SERVICES
PROVIDED BY ACCENTURE TO HAWAIIAN TELCOM UNDER THIS AGREEMENT, EXCEPT TO THE
EXTENT COVERED BY ACCENTURE'S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT;
(E)
THE FAILURE OF HAWAIIAN TELCOM TO COMPLY
WITH HAWAIIAN TELCOM LAWS;
(F)
HAWAIIAN TELCOM'S BREACH OF ANY OF ITS
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTIONS 10.1(D), (E), (F) AND (H)
OF THIS AGREEMENT AND SECTIONS 9.2 AND 9.3 OF THE VERIZON SUBLICENSE AGREEMENT;
OR
(G)
ANY ADDITIONAL THIRD PARTY CLAIMS SET FORTH
IN EXHIBIT Q (OTHER TERMS).
14.4
Accenture's Infringement Indemnity.
(A)
ACCENTURE SHALL INDEMNIFY, DEFEND AND HOLD
HARMLESS HAWAIIAN TELCOM INDEMNITEES FROM AND AGAINST ANY AND ALL LOSSES THAT
RESULT OR ARE CLAIMED TO RESULT IN WHOLE OR IN PART FROM THE CONTENTION THAT ANY
ACCENTURE TECHNICAL ELEMENTS AND DELIVERABLES PROVIDED BY ACCENTURE TO HAWAIIAN
TELCOM PURSUANT TO THIS AGREEMENT OR OTHERWISE PROVIDED AND USED BY ACCENTURE IN
CONNECTION WITH THIS AGREEMENT, CONSTITUTE INFRINGEMENT OR MISAPPROPRIATION OF
ANY PATENTS VALIDLY ISSUED AS OF THE EFFECTIVE DATE OF THE LATER OF THE
STATEMENT OF WORK OR WORK ORDER (BUT ONLY WITH RESPECT TO PATENT RIGHTS IN THE
COUNTRIES FROM WHICH THE SERVICE IS BEING PROVIDED), OR A THIRD PARTY'S
TRADEMARKS, COPYRIGHTS, OR TRADE SECRETS.
(B)
ACCENTURE SHALL NOT INDEMNIFY HAWAIIAN
TELCOM, HOWEVER, TO THE EXTENT THE CLAIM OF INFRINGEMENT IS CAUSED BY:
(I)
HAWAIIAN TELCOM'S MISUSE OR MODIFICATION
OF THE DELIVERABLE;
(II)
HAWAIIAN TELCOM'S FAILURE TO USE
CORRECTIONS OR ENHANCEMENTS MADE AVAILABLE BY ACCENTURE;
41
(III)
HAWAIIAN TELCOM'S USE OF THE DELIVERABLE IN
COMBINATION WITH ANY PRODUCT OR INFORMATION NOT OWNED, DEVELOPED OR APPROVED BY
ACCENTURE;
(IV)
HAWAIIAN TELCOM'S DISTRIBUTION, MARKETING OR
USE FOR THE BENEFIT OF THIRD PARTIES OF THE DELIVERABLES;
(V)
ACCENTURE'S COMPLIANCE IN DEVELOPING THE
DELIVERABLE WITH INFORMATION, DIRECTION, SPECIFICATION OR MATERIALS PROVIDED BY
HAWAIIAN TELCOM IN CONNECTION WITH THIS AGREEMENT, AND THE INFRINGEMENT CANNOT
BE REMEDIED BY MODIFYING THE DELIVERABLE WHILE MAINTAINING COMPLIANCE WITH THE
SPECIFICATION; OR
(VI)
THE INFRINGING MATERIAL WAS FURNISHED TO
ACCENTURE BY HAWAIIAN TELCOM OR BY HAWAIIAN TELCOM'S PREVIOUS OR CURRENT SERVICE
PROVIDER WORKING ON THE SERVICES TO BE TRANSITIONED TO ACCENTURE.
(C)
IF ANY DELIVERABLE IS, OR IN ACCENTURE'S
OPINION IS LIKELY TO BE, HELD TO BE INFRINGING, ACCENTURE SHALL AT ITS EXPENSE
AND OPTION, EXCEPT TO THE EXTENT THE CAUSE OF SUCH INFRINGEMENT IS SET FORTH IN
SECTION 14.4(B), EITHER:
(I)
PROCURE THE RIGHT FOR