By Kx. Kx shall defend, or at its option settle, at its own expense, any claim, suit or proceeding brought against ​ on the issue of infringement of any United States patent, copyright, trade secrets, or trademark by the Licensed Software, subject to the limitations hereinafter set forth. Kx shall have sole control of any such action or settlement negotiations, and Kx agrees to pay, subject to the limitations hereinafter set forth, any settlement fees or final judgment and attorney’s fees entered against ​ on such issue in any such suit or proceeding. ​ agrees to notify Kx promptly in writing of such claim, suit or proceeding and gives Kx authority to proceed as contemplated herein, and, at Kx’s expense, shall give Kx proper and full information and assistance to settle and/or defend any such claim, suit or proceeding.

Kx Options. In the event that # the Licensed Software is held to infringe the rights of a third party and the use of the Licensed Software is enjoined, # Kx concludes that the Licensed Software infringes the rights of a third party, or # in the case of settlement as referred to in section 9.1 above, Kx will, if possible on commercially reasonable terms, at its own expense and option: # procure for ​ the right to continue to use the Licensed Software,(b) replace the infringing components of the Licensed Software with other components with the same or similar functionality that are reasonably acceptable to ​, or # suitably modify the Licensed Software so that it is non-infringing and reasonably acceptable to ​. If none of the foregoing options are available to Kx on commercially reasonable terms, Kx may terminate this OEM Agreement without further liability to ​ except as provided in section 9.1 above. ​ will cooperate with Kx in the return of the Licensed Software.

Limitation on Trademark Use. Notwithstanding anything else in this OEM Agreement, ​ may not use “Kx,” “Kdb” or “Kdb+” in any ​ Application product name except with the express written consent of Kx. If Kx grants such consent, the product name must make clear that it a ​, not a Kx, product.

Limitation. Notwithstanding the provisions of section 9.1 above, Kx assumes no liability for # infringements arising from combinations of the Licensed Software with non-Kx software or hardware products, including any of ​’s products, # modifications to the Licensed Software made by any party other than Kx or Kx’s authorized representative or made under Kx’s direction, # use of a prior version of the Licensed Software to the extent such infringement would have been avoided by the use of the current version of the Licensed Software, provided that Kx has offered or provided such current version to ​ at no additional cost, or # trademark infringements involving any marking or branding not applied by Kx or involving any marking or branding applied at the request of ​ and not approved by Kx.

Delivery of Key Files. Kx will deliver Key Files to ​ via email. Except as otherwise mutually agreed to between Kx and ​, the parties will continue the current system of Kx and ​ ​.

#​ Indemnity. ​ shall be solely responsible for, and Kx shall have no obligation to honor, any warranties that ​ provides to Customers with respect to the ​ Applications. ​ shall defend any claim against Kx arising in connection with Customers’ use of a ​ Applications, and ​ shall pay any settlements or damages awarded against Kx resulting from such a claim, provided that Kx supplies ​ with timely notice of any such claim against Kx.

“Kdb Software” means Kx’s proprietary 32 bit relational database management software and Kx’s proprietary programming language “K.”

Minor Errors. Kx shall, within ​ of the receipt of notice from ​ of a Minor Error, initiate work to verify such Minor Error. If Kx can reproduce the Minor Error and the Minor Error noticeably degrades operation of the Licensed Software, then Kx will provide an Error Correction for such Minor Error within ​ of receipt of notice of the Minor Error and, if commercially reasonable, install such corrections into the Licensed Software. If Kx cannot reproduce the reported Minor Error, Kx shall discuss further analysis of the Minor Error with ​. If Kx can reproduce the Minor Error, but the Minor Error does not noticeably degrade operation of the Licensed Software, then Kx will initiate work to provide Error Correction for such Minor Error in the next Update or release of the Licensed Software.

Kx and ​ previously entered into the Kdb Software OEM Enterprise License Agreement effective January 1, 2002 (“Original Agreement”), which sets forth the terms on which ​ may use the Kdb Software and Kx programming languages to develop and distribute applications that integrate Kx’s Kdb Software. Thereafter, Kx and ​ entered into the following four amendments to the Original Agreement (jointly, “Amendments Nos. 1-4”):

“Kdb+ Software” means Kx’s proprietary 64 bit relational database management software and Kx’s proprietary programming languages “Q” and “K.”