HAWAIIAN TELCOM TO
CONTINUE USING IT;
(II)
REPLACE IT WITH A NONINFRINGING ITEM OF
EQUIVALENT OR BETTER PERFORMANCE, FUNCTIONALITY AND COMPATIBILITY;
(III)
MODIFY IT TO MAKE IT NONINFRINGING BUT OF
EQUIVALENT OR BETTER PERFORMANCE, FUNCTIONALITY AND COMPATIBILITY; OR
(IV)
IF (I) - (III) ARE NOT COMMERCIALLY
REASONABLE, ACCENTURE MAY DIRECT THE RETURN OF THE DELIVERABLE AND REFUND TO
HAWAIIAN TELCOM THE FEES PAID FOR SUCH DELIVERABLE LESS A REASONABLE AMOUNT FOR
HAWAIIAN TELCOM'S USE OF THE DELIVERABLE UP TO THE TIME OF RETURN.
(D)
THE FOREGOING REMEDIES CONSTITUTE HAWAIIAN
TELCOM'S SOLE AND EXCLUSIVE REMEDIES AND ACCENTURE'S ENTIRE LIABILITY WITH
RESPECT TO INFRINGEMENT.
14.5
Hawaiian Telcom Infringement Indemnity.
(A)
HAWAIIAN TELCOM SHALL INDEMNIFY, DEFEND AND
HOLD HARMLESS ACCENTURE 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
TECHNICAL ELEMENTS PROVIDED BY HAWAIIAN TELCOM TO ACCENTURE PURSUANT TO THIS
AGREEMENT (INCLUDING THE TECHNICAL ELEMENTS MADE AVAILABLE TO ACCENTURE IN
CONNECTION WITH THE VERIZON SUBLICENSE AGREEMENT) OR OTHERWISE PROVIDED AND USED
BY HAWAIIAN TELCOM 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)
HAWAIIAN TELCOM SHALL NOT INDEMNIFY
ACCENTURE, HOWEVER, IF THE CLAIM OF INFRINGEMENT IS CAUSED BY:
42
(I)
ACCENTURE'S MISUSE OR MODIFICATION OF
THE HAWAIIAN TELCOM RESOURCE OR ITEM;
(II)
ACCENTURE'S FAILURE TO USE CORRECTIONS OR
ENHANCEMENTS MADE AVAILABLE BY HAWAIIAN TELCOM; OR
(III)
ACCENTURE'S USE OF THE HAWAIIAN TELCOM
RESOURCE OR ITEM IN COMBINATION WITH ANY PRODUCT OR INFORMATION NOT OWNED,
DEVELOPED OR APPROVED BY HAWAIIAN TELCOM.
For the avoidance of doubt, Accenture's use, reproduction, modification and
creation of derivative works of any Unknown Third Party Software and Third Party
Modules (each as defined in the Verizon Sublicense Agreement) made available to
Accenture by Hawaiian Telcom shall not be considered misuse, provided that such
activity is undertaken during the Term or the Termination Assistance Period and
for the sole purpose of providing the Services to Hawaiian Telcom and its
Affiliates; and further provided that Hawaiian Telcom has not provided Accenture
with notice under last paragraph of Section 8 of the Verizon Sublicense
Agreement to cease all use or certain uses of the Unknown Third Party Software
for Third Party Module.
(C)
IF ANY HAWAIIAN TELCOM RESOURCE OR ITEM IS,
OR IN HAWAIIAN TELCOM'S OPINION IS LIKELY TO BE, HELD TO BE INFRINGING, HAWAIIAN
TELCOM SHALL AT ITS EXPENSE AND OPTION, EXCEPT TO THE EXTENT THE CAUSE OF SUCH
INFRINGEMENT IS SET FORTH IN SECTION 14.5(B), EITHER (I) PROCURE THE RIGHT FOR
ACCENTURE TO CONTINUE USING IT; (II) REPLACE IT WITH A NONINFRINGING EQUIVALENT;
(III) MODIFY IT TO MAKE IT NONINFRINGING, OR (IV) DIRECT ITS RETURN TO ACCENTURE
IF IT WAS PROVIDED TO ACCENTURE AND OR