Bank’s Indemnification of Company. From and after the Effective Date, Bank shall indemnify and hold harmless Company, its Affiliates, their respective officers, directors, employees, (collectively, the “Company Indemnified Parties”) from and against and in respect of any and all Losses, which are caused or incurred by, result from, arise out of or relate to: (a) Bank’s or its Affiliates or their respective subcontractors’ (which, for the avoidance of doubt, shall not include Company or any of its subcontractors for purposes of this ARTICLE XVI), or their respective officers’, directors’, employees’ or agents’ negligence, recklessness or willful misconduct (including acts and omissions) relating to the Program; (b) any breach by Bank or any of its Affiliates or subcontractors, or their respective officers, directors, employees or agents of any of the terms, conditions, covenants, representations, or warranties contained in this Agreement; (c) Bank’s failure to satisfy any of its obligations to Cardholders pursuant to the terms of the applicable Credit Card Agreement; (d) any actions or omissions by Company taken or not taken at Bank’s request or direction pursuant to this Agreement, except where Company would have been otherwise required to take such action (or refrain from acting) absent the request or direction of Bank; (e) dishonest or fraudulent acts by Bank, its Affiliates or their respective officers, directors, employees, subcontractors or agents in connection with the Program; (f) any Program Materials in use after the Closing Date based on such Program Materials violating requirements of Applicable Law or Network Rules or any aspect of Program Materials to the extent the content thereof was determined as a Bank Matter, except in each case to the extent (i) content thereof was not provided for Bank’s legal review and approval in accordance with this Agreement, (ii) any comments of Bank pursuant to such review process were not correctly included in such Program Materials or (iii) any matter with respect thereto was determined as a Company Matter pursuant to Section 3.5(c)(i) or Section 3.5(c)(ii); provided, however, that with respect to Program Materials that were used prior to the Closing Date and continue to be used after the Closing Date, Bank’s indemnification obligation shall be limited to Losses that are incurred as a result of such use after the Closing Date and Company shall remain responsible for any Losses incurred as a result of such use prior to the Closing Date, and shall indemnify Bank for such Losses as Excluded Liabilities pursuant to the Purchase Agreement. (g) any claim, suit or proceeding by any Governmental Authority or other third party to the extent arising out of the failure of the Program to comply with Applicable Law or Network Rules following the Closing Date, except to the extent that liability in respect thereof relates to or arises from (i) acts or activities prior to the Closing Date, (ii) failure by Company, its Affiliates, their respective subcontractors or their respective officers, directors, employees or agents to follow the provisions of this Agreement, the Risk Management Policies, Collections Policies, Compliance Practices or Cardholder Service practices with respect to the Program as in effect from time to time hereunder, or (iii) failure of Company, its Affiliates, their respective subcontractors or their respective officers, directors, employees or agents to follow written instructions given by or on behalf of Bank; (h) any claim, suit or proceeding by any Governmental Authority or other third party arising out of the failure of Bank or any of its Affiliates, their subcontractors, or their respective directors, officers, employees or agents to comply with Applicable Law, Network Rules, the Risk Management Policies, the Compliance Practices, the Collections Policies, or the Cardholder Service practices, unless such failure was the result of any action taken or not taken at the written request of Company; (i) Bank’s Inserts or Billing Statement messages; (j) allegations by a third party that the use of the Bank Licensed Marks as permitted herein or any materials or documents provided by Bank constitutes: (i) libel, slander, and/or defamation; (ii) invasion of rights of privacy or rights of publicity; or (iii) breach of contract or tortious interference; and (k) allegations by a third party that the use of the Bank Licensed Marks as permitted herein or any materials or documents provided by the Bank constitutes (i) trademark infringement or dilution, or copyright infringement; (ii) unfair competition or misappropriation of another’s ideas or trade secret; or (iii) patent infringement.
Appears in 1 contract
Bank’s Indemnification of Company. From and after the Effective Date, Bank shall indemnify and hold harmless Company, its Affiliates, their respective officers, directors, employees, (collectively, the “Company Indemnified Parties”) from and against and in respect of any and all Losses, which are caused or incurred by, result from, arise out of or relate to:
(a) Bank’s or its Affiliates Affiliates’ or subcontractors’ or their respective subcontractors’ (which’, for the avoidance of doubt, shall not include Company or any of its subcontractors for purposes of this ARTICLE XVI), or their respective officers’, directors’, employees’ or agents’ negligence, recklessness or willful misconduct (including acts and omissions) relating to the Program;; 77
(b) any breach by Bank or any of its Affiliates or subcontractors, or their respective subcontractors, officers, directors, employees or agents of any of the terms, conditions, covenants, representations, or warranties contained in this AgreementAgreement (provided that a breach of this Agreement that is solely a breach of a Service Level Standard of Bank shall be subject only to the consequences set forth in Schedule 4.12(a) and provided further that a breach of a Service Level Standard that is also a breach of a term, condition, covenant, representation or warranty that is not a Service Level Standard shall continue to be subject to any remedies that Company may have under this Agreement or at law or in equity, including the indemnification obligations set forth in this Section 16.2);
(c) any actions or omissions by Company taken or not taken (i) at Bank’s request or direction, except where Company would have been otherwise required to take such action (or refrain from acting) absent such request or direction of Bank or (ii) pursuant to Bank’s exercise of its deadlock-breaking authority pursuant to this Agreement;
(d) any failure of any element of the Compliance Management Program, the Risk Management Policies, the Servicing practices, the Fraud Management Policies (solely to the extent related to anti-money laundering, Bank Secrecy Act, OFAC compliance or similar legal or regulatory requirements), or the Program Privacy Notice provided to Bank for review to comply with Applicable Law (including any failure by Bank to require incorporation therein of any provision required to comply with Applicable Law);
(e) any failure by Bank to satisfy any of its obligations to Cardholders pursuant to the terms of the applicable Credit Card Agreement;
(d) any actions or omissions by Company taken or not taken at Bank’s request or direction pursuant to this Agreement, except where Company would have been otherwise required to take such action (or refrain from acting) absent the request or direction of Bank;
(ef) dishonest or fraudulent acts by Bank, its Affiliates or subcontractors or their respective subcontractors or their respective officers, directors, employees, subcontractors or agents in connection with the Program;
(fg) (i) any failure of the Account Documentation or Program Materials (including the Advertising Guide and any Program Materials that conform to the Advertising Guide then in effect) reviewed (or deemed reviewed) by Bank and in use after the Closing Date based on such Program Materials violating requirements of to comply with Applicable Law or Network Rules or any aspect of Program Materials to the extent the content thereof was determined as a Bank MatterLaw, except in each case to the extent (iA) content thereof was not provided for Bank’s legal review and approval in accordance with this AgreementAgreement or was submitted but a reasonable time following such submission for Bank to complete such review has not yet elapsed, (iiB) any comments of Bank pursuant to such review process required to be included therein were not correctly included in such Account Documentation or Program Materials or (iiiC) the content thereof that was the source of the Losses was included therein pursuant to Company’s exercise of its deadlock-breaking authority pursuant to this Agreement; and (ii) any matter with respect thereto aspect of Account Documentation or Program Materials to the extent the content thereof that was determined as a Company Matter the source of the Losses was included therein pursuant to Section 3.5(c)(i) comments thereon received from Bank or Section 3.5(c)(ii)pursuant to Bank’s exercise of its deadlock-breaking authority pursuant to this Agreement; provided, however, that in the case of each of clause (i) and (ii), with respect to Program Materials that were used prior to the Closing Date and continue to be used after the Closing Date, Bank’s indemnification obligation shall be limited to Losses that are incurred as a result of such use after the Closing Date and Company shall remain responsible for any Losses incurred as a result of such use prior to the Closing Date, 78 and shall indemnify Bank for such Losses as Excluded Liabilities pursuant to the Purchase Agreement.
(gh) any claim, suit or proceeding by any Governmental Authority or other third party to the extent arising out of (i) the failure of Bank, its Affiliates, their subcontractors, or their respective directors, officers, employees or agents to comply with the Program Privacy Notice, (ii) the failure of the Program to comply with Applicable Law or Network Rules following the Closing Date, except to the extent that liability in respect thereof relates to or arises from (iA) acts or activities prior to the Closing Date, (iiB) failure of the Fraud Management Policies to comply with Applicable Law except to the extent such liability arises from the failure of such Fraud Management Policies to comply with Applicable Law related to anti-money laundering, Bank Secrecy Act, OFAC compliance or similar legal or regulatory requirements, (C) failure by Company, or its Affiliates, their respective Affiliates or subcontractors or their respective Licensees, subcontractors, officers, directors, employees or agents to follow the provisions of this Agreement, the Risk Management Policies, Collections the Servicing practices, the Compliance Management Program, the Fraud Management Policies, Compliance Practices the Customer Service Communications Protocol, the LCMP or Cardholder Service practices with respect to the Program as in effect from time to time hereunderPrivacy Notice, or (iiiD) failure of Company, or its Affiliates, their respective Affiliates or subcontractors or their respective Licensees, subcontractors, officers, directors, employees or agents to follow written instructions given by or on behalf of BankBank (but solely to the extent Company has an obligation pursuant to this Agreement to follow such written instructions);
(hi) any claim, suit or proceeding by any Governmental Authority or other third party arising out of the failure of Bank or any of its Affiliates, their subcontractors, or their respective directors, officers, employees or agents to comply with Applicable Law, Network Rules, the Risk Management Policies, the Compliance PracticesServicing practices, the Collections Compliance Management Program, the Fraud Management Policies, the Customer Service Communications Protocol, the LCMP or the Cardholder Service practicesProgram Privacy Notice, unless such failure was the result of any action taken or not taken at the written request of Company;
(ij) any claim, suit or proceeding by a Governmental Authority or other third party arising out of Bank’s Inserts or Billing Statement messages; or arising out of other communications by Bank with Cardholders that do not constitute Program Materials;
(jk) allegations any claim, suit or proceeding by a third party that alleges that the use by Company of the Bank Licensed Marks as permitted herein or any materials or documents provided by Bank constitutes: (i) libel, slander, and/or defamation; (ii) invasion of violates the intellectual property rights of privacy or rights of publicity; or (iii) breach of contract or tortious interferencesuch third party; and
(kl) allegations any claim, suit or proceeding by a third party that alleges that the use of the Bank’s Systems or any other Bank Licensed Marks Intellectual Property licensed to Company and used as permitted herein violates the intellectual property rights of such third party. For the avoidance of doubt, references to Bank’s subcontractors in this ARTICLE XVI shall not include Company or any materials of its Affiliates or documents provided by the Bank constitutes (i) trademark infringement or dilution, or copyright infringement; (ii) unfair competition or misappropriation of another’s ideas or trade secret; or (iii) patent infringementsubcontractors.
Appears in 1 contract
Bank’s Indemnification of Company. From and after the Effective Date, Bank shall indemnify and hold harmless Company, its Affiliates, their respective officers, directors, employees, (collectively, the “Company Indemnified Parties”) from and against and in respect of any and all Losses, which are caused or incurred by, result from, arise out of or relate to:Company
(a) Bank’s or its Affiliates or their respective subcontractors’ (which, for the avoidance of doubt, shall not include Company or any of its subcontractors for purposes of this ARTICLE XVI), or their respective officers’, directors’, employees’ or agents’ negligence, recklessness or willful misconduct (including acts and omissions) relating to the Program;
(b) any breach by Bank or any of its Affiliates or subcontractors, or their respective officers, directors, employees or agents of any of the terms, conditions, covenants, representations, or warranties contained in this Agreement;
(c) Bank’s failure to satisfy any of its obligations to Cardholders pursuant to the terms of the applicable Credit Card Agreement;
(d) any actions or omissions by Company taken or not taken at Bank’s request or direction pursuant to this Agreement, except where Company would have been otherwise required to take such action (or refrain from acting) absent the request or direction of Bank;
(e) dishonest or fraudulent acts by Bank, its Affiliates or their respective officers, directors, employees, subcontractors or agents in connection with the Program;
(f) any Program Materials in use after the Closing Date based on such Program Materials violating requirements of Applicable Law or Network Rules or any aspect of Program Materials to the extent the content thereof was determined as a Bank Matter, except in each case to the extent (i) content thereof was not provided for Bank’s legal review and approval in accordance with this Agreement, (ii) any comments of Bank pursuant to such review process were not correctly included in such Program Materials or (iii) any matter with respect thereto was determined as a Company Matter pursuant to Section 3.5(c)(i) or Section 3.5(c)(ii); provided, however, that with respect to Program Materials that were used prior to the Closing Date and continue to be used after the Closing Date, Bank’s indemnification obligation shall be limited to Losses that are incurred as a result of such use after the Closing Date and Company shall remain responsible for any Losses incurred as a result of such use prior to the Closing Date, and shall indemnify Bank for such Losses as Excluded Liabilities pursuant to the Purchase Agreement.
(g) any claim, suit or proceeding by any Governmental Authority or other third party to the extent arising out of the failure of the Program to comply with Applicable Law or Network Rules following the Closing Date, except to the extent that liability in respect thereof relates to or arises from (i) acts or activities prior to the Closing Date, (ii) failure by Company, its Affiliates, their respective subcontractors or their respective officers, directors, employees or agents to follow the provisions of this Agreement, the Risk Management Policies, Collections Policies, Compliance Practices or Cardholder Service practices with respect to the Program as in effect from time to time hereunder, or (iii) failure of Company, its Affiliates, their respective subcontractors or their respective officers, directors, employees or agents to follow written instructions given by or on behalf of Bank;
(h) any claim, suit or proceeding by any Governmental Authority or other third party arising out of the failure of Bank or any of its Affiliates, their subcontractors, or their respective directors, officers, employees or agents to comply with Applicable Law, Network Rules, the Risk Management Policies, the Compliance Practices, the Collections Policies, or the Cardholder Service practices, unless such failure was the result of any action taken or not taken at the written request of Company;
(i) Bank’s Inserts or Billing Statement messages;
(j) allegations by a third party that the use of the Bank Licensed Marks as permitted herein or any materials or documents provided by Bank constitutes: (i) libel, slander, and/or defamation; (ii) invasion of rights of privacy or rights of publicity; or (iii) breach of contract or tortious interference; and
(k) allegations by a third party that the use of the Bank Licensed Marks as permitted herein or any materials or documents provided by the Bank constitutes (i) trademark infringement or dilution, or copyright infringement; (ii) unfair competition or misappropriation of another’s ideas or trade secret; or (iii) patent infringement.
Appears in 1 contract
Samples: Credit Card Program Agreement
Bank’s Indemnification of Company. From and after the Original Effective Date, Bank shall indemnify and hold harmless Company, its Affiliates, their respective officers, directors, employees, agent, Subcontractors and representatives and any Person claiming by or through any of them (collectively, the “Company Indemnified Parties”) from and against and in respect of any and all LossesLosses relating to third-party claims, which are caused or incurred by, result from, arise out of or relate to:
(a) Bank’s or its Affiliates or their respective subcontractors’ (which, for the avoidance of doubt, shall not include Company or any of its subcontractors for purposes of this ARTICLE XVI), or their respective officers’, directors’, employeesAffiliates’ or agentsSubcontractors’ gross negligence, recklessness or willful misconduct (including acts and omissions) relating to the Program;
(b) any breach by Bank or any of its Affiliates or subcontractorsSubcontractors, or their respective officers, directors, employees or agents of any of the terms, conditions, covenants, representations, or warranties contained in this Agreement, or any Credit Card Agreement;
(c) Bank’s failure to satisfy any of its obligations or liabilities to third parties, including Cardholders pursuant to the terms of the applicable Credit Card Agreementand any Existing Issuer;
(d) any actions or omissions by Company or any of its Affiliates or Subcontractors taken or not taken at Bank’s written request or direction pursuant to this Agreement, except where Company or any of its Affiliates or Subcontractors would have been otherwise required to take such action (or refrain from acting) absent the request or direction of Bank;
(e) dishonest or fraudulent acts by Bank, its Affiliates Affiliates, or Subcontractors or their respective officers, directors, employees, subcontractors directors employees or agents in connection with the Programagents;
(f) any Program Materials in use Account Documentation used by Company after the Closing Date based on such Program Materials violating requirements of Applicable Law or Network Rules or any aspect of Program Materials to the extent the content thereof was determined as a Bank Matter, except in each case to the extent (i) content thereof was not provided for Bank’s legal review and approval in accordance with this Agreement, (ii) any comments of Bank pursuant to such review process were not correctly included in such Program Materials or (iii) any matter with respect thereto was determined as a Company Matter pursuant to Section 3.5(c)(i) or Section 3.5(c)(ii); provided, however, that with respect to Program Materials that were used prior to the Closing Date and continue to be used after the Closing Date, Bank’s indemnification obligation shall be limited to Losses that are incurred as a result of such use after the Closing Date and Company shall remain responsible for any Losses incurred as a result of such use prior to the Closing Date, and shall indemnify Bank for such Losses as Excluded Liabilities pursuant to the Purchase Agreement.
(g) any claim, suit or proceeding by any Governmental Authority or other third party to the extent arising out of the failure of the Program fails to comply with Applicable Law or Network Rules following the Closing Date, except unless such failure to the extent that liability in respect thereof relates comply is as a result of subsequent modification to or arises from (i) acts or activities prior to the Closing Date, (ii) failure such Account Documentation by Company, ;
(g) Bank’s or any of its Affiliates, their respective subcontractors ’ or their respective officers, directors, employees or agents Subcontractors’ failure to follow the provisions of this Agreementcomply with Applicable Law, the Risk Management Policies, Collections Policies, Compliance Practices or Cardholder Service practices with respect to the Program as in effect from time to time hereunder, or (iii) failure of Company, its Affiliates, their respective subcontractors or their respective officers, directors, employees or agents to follow written instructions given by or on behalf of Bank;
(h) any claim, suit or proceeding by any Governmental Authority or other third party arising out of the failure of Bank or any of its Affiliates, their subcontractors, or their respective directors, officers, employees or agents to comply with Applicable Law, Network Rules, the Risk Management Policies, the Compliance Practices, the Collections Policies, or the Cardholder Service practices, Policies unless such failure was the result of any action taken or not taken by Bank or any of its Affiliates or Subcontractors at the specific written request or direction of Company;
(ih) Bank’s Inserts or Billing Statement messages;
(i) allegations by a third party that the use of the Bank Licensed Marks or any materials or documents provided by Bank constitutes: § libel, slander, and/or defamation; § infringement of intellectual property, including trademark infringement or dilution, or copyright infringement, § unfair competition or misappropriation of another’s ideas or trade secret; § invasion of rights of privacy or rights of publicity; or § breach of contract or tortious interference; or
(j) allegations by a third party that the use of the Bank Licensed Marks as permitted herein systems or any materials or documents anything provided by Bank constitutes: (i) libelunder this Agreement constitutes infringement, slander, and/or defamation; (ii) invasion of rights of privacy misappropriation or rights of publicity; or (iii) breach of contract or tortious interference; and
(k) allegations by a third party that the use violation of the Bank Licensed Marks as permitted herein Intellectual Property of such third party, unless such allegations arise out of a modification or any materials or documents provided combination thereof by Company that is not reasonably contemplated by the Bank constitutes (i) trademark infringement or dilution, or copyright infringement; (ii) unfair competition or misappropriation of another’s ideas or trade secret; or (iii) patent infringementParties.
Appears in 1 contract
Samples: Credit Card Program Agreement (Ascena Retail Group, Inc.)
