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(e) Any legal action arising from or in connection with any defect or failure in any Product
<br />provided by SBC, or the perFormance or nonperFarmance of any service provided by SBC,
<br />must be brought within two (2) years after the acceptance of such Product or service by
<br />Customer.
<br />(fl THIS SECTION 21 SHALL SURVIVE FAJLURE OF ANY EXCLUSIVE REMEDY.
<br />22. lndemnification. (a) Each party ("Indemnifying Party") will defend, indemnify and hold
<br />harmless the other party ("Indemnified Party") from and against any Claims by third parties
<br />whether based in contract or tort (including strict liability) to the extent they relate to or arise
<br />from: (i) personal injury, death or loss of or damage to tangible property proximately caused
<br />by the negligent acts or omissions of Indemnifying Party; (ii) defective products or services
<br />provided hereunder; or (iii) assertions under worker's compensation or similar laws made by
<br />persons furnished by the Indemnifying Party.
<br />(b) "Claim" includes all ciaims, demands, suits, liabilities, and related costs of any kind,
<br />including costs, interest and reasonable attorney's fees. "(ndemnified Party" includes the
<br />Indemnified Party's officers, directors, partners, agents, emp(oyees and subcontractors.
<br />(c) The lndemnified Party shall promptly notify Indemnifying Party of any Claim and shall
<br />reasonably cooperate with the Indemnifying Party, at the Indemnifying Party's expense, in the
<br />defense of the Claim. Indemnifying Party shall assume, at its cost and expense, the sole
<br />defense of such Claim through counsel selected by Indemnifying Party and reasonably
<br />acceptable to Indemnified Pariy. Indemnified Party may at its option and expense be
<br />represented by separate counsel. Indemnifying Party shall maintain control of such defense
<br />except that if the settlement of a Claim wauld have an adverse effect on the Indemnified
<br />Party's relevant business, the Indemnifying Party may settle the Claim as to the Indemnified
<br />Party only with its consent, which consent shall nofi be unreasonably withheld, conditioned or
<br />delayed. Indemnifying Party shall pay the full amount of any judgment, award or settlement
<br />with respect to the Claim and al( other costs, fees and expenses related to the resolution of the
<br />Claim.
<br />[iF SERVICES ARE TO BE PERFORMED IN OHIO]
<br />Without limiting the generality of the foregoing, to the extent that any services are perFormed in
<br />the State of Ohio, the Indemnifying Party hereby waives any immunity from its obligations to
<br />defend, indemnify and hold harmfess the Indemnified Party, its corporate affiliates, and their
<br />officers, employees and agents against and from claims by empfoyees of the Indemnifying
<br />Party, which immunity woufd otherwise arise by operation of Ohio Revised Code §§4123.74
<br />and 4123.741 and Section 35, Articie II, Ohio Constitution or any other statute or constitutionaf
<br />provision.
<br />(d) SBC will defend, indemnify and hold harmless the Customer, its corporate affiliates and
<br />their officers, employees and agents from and against any Claims that may result by reason of
<br />any alleged violation, infringement or misappropriation of a United States patent, trade secret,
<br />trademark, trade dress, capyright or other proprietary right based on Customer's use of the
<br />Product (including the receipt of any services) provided under this Agreement.
<br />Nofinrithstanding the foregoing, SBC shall have no obligafion to indemnify or defend Customer
<br />for, or to pay any costs, damages or attorney's fees related to, any Claim based upon (i)
<br />Products developed based on written specifications of the Customer; or (ii) use of the Producfs
<br />in a configuration other than implemented or approved in writing by SBC, including, but not
<br />Epama int/rev8/9-7-01/sm
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