WRITTEN APPROVAL OF SUPPLIER, OR SUCH MODIFICATION WAS PERMITTED BY THE
DOCUMENTATION OR ANY UPDATE THERETO.
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11.5. EXCLUSIONS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, SUPPLIER SHALL HAVE NO
OBLIGATION TO INDEMNIFY, DEFEND OR HOLD HARMLESS A USAA FSB INDEMNIFIED PARTY AS
AND TO THE EXTENT A CLAIM OTHERWISE SUBJECT TO INDEMNIFICATION BY SUPPLIER UNDER
SECTION 11.4, OR SECTION 11.2(A) ARISING FROM SUPPLIER'S BREACH OF SECTION
12.1(D): (A) ARISES FROM USAA FSB'S USE OF THE SERVICES, DELIVERABLES, SOFTWARE,
MATERIALS OR ANYTHING ELSE PROVIDED OR PERFORMED BY SUPPLIER HEREUNDER (THE
"INDEMNIFIED MATERIALS") IN VIOLATION OF THIS AGREEMENT OR OTHER TERMS RELATING
TO THE INDEMNIFIED MATERIALS MUTUALLY AGREED UPON IN WRITING; (B) WOULD NOT HAVE
ARISEN ABSENT THE USE OF THE INDEMNIFIED MATERIALS IN COMBINATION WITH
TECHNOLOGY OR SYSTEMS NOT PROVIDED BY SUPPLIER AND NOT AUTHORIZED OR OTHERWISE
RECOMMENDED BY SUPPLIER IN WRITING IN ADVANCE OF SUCH USE; OR (C) ARISES FROM
USAA FSB'S FAILURE TO PROMPTLY CEASE USE OF THE AFFECTED INDEMNIFIED MATERIAL
FOLLOWING THE PROVISION OF ANY MODIFICATION, CHANGE, ADDITION OR CORRECTION TO
THE INDEMNIFIED MATERIAL BY SUPPLIER PURSUANT TO SECTIONS 11.6(B) OR 11.6(C);
PROVIDED, IN THE CASE OF THIS CLAUSE (C), THAT SUPPLIER HAS NOTIFIED USAA FSB
THAT IT IS REQUIRED TO ADOPT SUCH MODIFICATION, CHANGE, ADDITION OR CORRECTION
IN ORDER TO MITIGATE THE RISK OF A THIRD-PARTY INFRINGEMENT CLAIM.
11.6. IP INFRINGEMENT MITIGATION.
IN ADDITION TO, AND NOT IN LIEU OF, SUPPLIER'S INDEMNITY OBLIGATIONS, SHOULD THE
USE OF ANY INDEMNIFIED MATERIALS BECOME RESTRICTED, ENCUMBERED, OR ENJOINED BY
REASON OF ANY ACTUAL OR ALLEGED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF
INTELLECTUAL PROPERTY RIGHTS (INCLUDING PATENT INFRINGEMENT) OR OTHER
PROPRIETARY RIGHTS, SUPPLIER SHALL PROMPTLY AND AT NO ADDITIONAL COST TO USAA
FSB:
(a) OBTAIN FOR USAA FSB THE RIGHT TO CONTINUE TO USE AS CONTEMPLATED HEREUNDER
THE AFFECTED INDEMNIFIED MATERIALS;
(b) MODIFY THE AFFECTED INDEMNIFIED MATERIALS TO RENDER NON-INFRINGING SO AS TO
REMOVE THE CAUSE OF THE CLAIM (PROVIDED THAT SUPPLIER'S MODIFICATION WILL NOT
MATERIALLY DEGRADE THE PERFORMANCE, FUNCTIONALITY, OPERATION, OR OTHERWISE
ADVERSELY AFFECT THE INTENDED USE OF THE AFFECTED INDEMNIFIED MATERIALS); OR
(c) REPLACE THE AFFECTED INDEMNIFIED MATERIALS WITH EQUALLY SUITABLE
FUNCTIONALLY EQUIVALENT, COMPATIBLE, NON-INFRINGING SERVICES, DELIVERABLES,
SOFTWARE, OR MATERIALS WHICH WILL BE SUBJECT TO THE TERMS OF THIS AGREEMENT.
IF, NOTWITHSTANDING SUPPLIER'S COMMERCIALLY REASONABLE EFFORTS PURSUANT TO THIS
SECTION 11.6, IF USAA FSB IS NOT PERMITTED TO CONTINUE USE OF ANY INDEMNIFIED
MATERIALS AS CONTEMPLATED HEREUNDER, THEN USAA FSB MAY BE ENTITLED TO TERMINATE
THE APPLICABLE ORDER ADDENDUM (IN WHOLE OR, SOLELY TO THE EXTENT OF THE
CURTAILED PERFORMANCE, IN PART) UPON WRITTEN NOTICE TO SUPPLIER. SUPPLIER WILL
REFUND THE APPLICABLE FEE(S) AND THE PRO-RATA PORTION OF ANY PREPAID SERVICES
FEES TO USAA FSB (IF ANY). THE FOREGOING REMEDIES WILL NOT LIMIT ANY OF USAA
FSB'S OTHER RIGHTS OR REMEDIES AVAILABLE AT LAW, EQUITY, CONTRACT OR OTHERWISE,
OR LIMIT OR AFFECT SUPPLIER'S OBLIGATIONS AS OTHERWISE SET FORTH IN THIS
AGREEMENT.
11.7. INDEMNIFICATION PROCEDURE.
(a) In order for an Indemnified Party to be entitled to any indemnification
provided for under