Common use of By The Distributor Clause in Contracts

By The Distributor. (1) The Distributor agrees to indemnify and hold harmless the Insurance Companies, each Affiliate of the Insurance Companies and the Underwriter and each of their directors, officers, employees or agents and each person, if any, who controls the Insurance Companies or the Underwriter within the meaning of the federal securities laws (collectively, the "Indemnified Parties" for purposes of this Section 12 (a)) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of the Distributor) or litigation (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, regulation, at common law or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof) or settlements are related to the offer or sale of the Variable Products or the operation of the Variable Accounts and: (i) arise out of, or are based upon, violation(s) by the Distributor of federal or state securities law(s) or regulation(s), applicable banking law(s) or regulation(s), insurance law(s) or regulation(s) or any rule or requirement of the NASD; or (ii) arise out of, or are based upon, any tortious conduct (including oral or written misrepresentation), or any unlawful sales practices concerning the Variable Products by the Distributor; or (iii) arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances in which they were made, contained in any advertising, sales literature, or other promotional material designed, developed, and produced by the Distributor and used by it in the distribution of the Variable Products; PROVIDED THAT the Distributor shall not be liable in any such case to the extent that such losses, claims, damages, liabilities or expenses arises out of, or are based upon, an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon information furnished in writing to the Distributor by the Insurance Companies or the Underwriter specifically for use in the preparation of any such promotional material; or (iv) arise out of, or are based upon, claims by Broker-Dealers, Representatives or employees, agents or registered representatives of the Distributor for commissions or other compensation or remuneration of any type; or (v) arise as a result of any failure on the part of the Distributor, a Broker-Dealer or a Representative to submit Premiums, Purchase Payments, or Applications to the Insurance Companies, or to submit the correct amount of a Premium or Purchase Payment, on a timely basis and in accordance with this Agreement, subject to applicable law; or (vi) arise as a result of any failure on the part of the Distributor, a Broker-Dealer or a Representative to deliver the Variable Products to purchasers thereof on a timely basis; PROVIDED THAT the Distributor shall not be liable in any such case to the extent that such losses, claims, damages, liabilities or expenses arise as a result of any failure on the part of the issuing Insurance Company to perform its obligations under this Agreement on a timely basis; or (vii) arise as a result of a material breach by the Distributor of any provisions of this Agreement; or (viii) arise as a result of actions of a Broker-Dealer or its Representatives; as limited by and in accordance with the provisions of Sections 12(a)(2) and 12 (a)(3) hereof. (2) The Distributor shall not be liable under this indemnification provision with respect to any losses, claims, damages, liabilities or litigation ("Losses" for purposes of this Section 12 (a)(2)) incurred or assessed against an Indemnified Party that may arise from any Indemnified Party's willful misfeasance or bad faith. The Distributor's liability for Losses in the event of its breach of this Agreement shall be limited to that portion of Losses caused by its breach, and the Distributor shall not be liable for that portion of Losses caused by breach of this Agreement by an Indemnified Party or from any act or omission by an Indemnified Party. (3) The Distributor shall not be liable under this indemnification provision with respect to any claim made against an Indemnified Party unless that Indemnified Party shall have notified the Distributor in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon that Indemnified Party (or after the Indemnified Party shall have received notice of such service on any designated agent). Notwithstanding the foregoing, the failure of any Indemnified Party to give notice as provided herein shall not relieve the Distributor of its obligations hereunder except to the extent that the Distributor has been prejudiced by such failure to give notice. In addition, any failure by the Indemnified Party to notify the Distributor of any such claim shall not relieve the Distributor from any liability which it may have to the Indemnified Party against whom the action is brought otherwise than on account of this indemnification provision. In case any such action is brought against the Indemnified Parties, the Distributor shall be entitled to participate, at its own expense, in the defense of the action. The Distributor also shall be entitled to assume the defense thereof, with counsel satisfactory to the party named in the action; PROVIDED, HOWEVER, that if the Indemnified Party shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to the Distributor, the Distributor shall not have the right to assume said defense, but shall pay the costs and expenses thereof (except that in no event shall the Distributor be liable for the fees and expenses of more than one counsel for Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances). After notice from the Distributor to the Indemnified Party of the Distributor's election to assume the defense thereof, and in the absence of such a reasonable conclusion that there may be different or additional defenses available to the Indemnified Party, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it, and the Distributor will not be liable to that party under this Agreement for any legal or other expenses subsequently incurred by the party independently in connection with the defense thereof other than reasonable costs of investigation. (4) The Indemnified Parties will notify the Distributor within a reasonable time, not to exceed five (5) business days, of the receipt of service of process in any litigation or proceedings against them in connection with the offer or sale of the Variable Products or the operation of the Variable Accounts.

By The Distributor. (1) The Distributor agrees to indemnify and hold harmless the Insurance CompaniesCompany and each director, each Affiliate officer, employee or agent of the Insurance Companies and the Underwriter and each of their directorsCompany, officers, employees or agents and each person, if any, who controls the Insurance Companies or the Underwriter Company within the meaning of the federal securities laws (collectively, the "Indemnified Parties" for purposes of this Section 12 (a11(a)) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of the DistributorInsurance Company) or litigation (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, regulation, at common law or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof) or settlements are related to the offer or sale of the Variable Products or the operation of the Variable Accounts and: (i) arise out of, or are based upon, violation(s) by the Distributor or a Distributor Agency Affiliate of federal or state securities law(s) or regulation(s), applicable banking law(s) or regulation(s), insurance law(s) or regulation(s) or any rule or requirement of the NASD; or (ii) arise out of, or are based upon, any tortious conduct (including oral or written misrepresentation), or any unlawful sales practices concerning the Variable Products by the Distributor; or (iii) arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances in which they were made, contained in any advertising, sales literature, or other promotional material designed, developed, and produced by the Distributor and used by it in the distribution of the Variable Products; PROVIDED THAT provided that the Distributor shall not be liable in any such case to the extent that such losses, claims, damages, liabilities or expenses arises out of, or are based upon, an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon information furnished in writing to the Distributor by the Insurance Companies or the Underwriter Company specifically for use in the preparation of any such promotional material; or (iv) arise out of, or are based upon, claims by Broker-Dealers, the Representatives or employees, agents or registered representatives of the Distributor for commissions or other compensation or remuneration of any type; or (v) arise as a result of any failure on the part of the Distributor, a Broker-Dealer or a Representative Distributor to submit Premiums, Purchase Payments, or Applications to the Insurance CompaniesCompany, or to submit the correct amount of a Premium or Purchase Payment, on a timely basis and in accordance with this Agreement, subject to applicable law; or (vi) arise as a result of any failure on the part of the Distributor, a Broker-Dealer or a Representative Distributor to deliver the Variable Products to purchasers thereof on a timely basis; PROVIDED THAT provided that the Distributor shall not be liable in any such case to the extent that such losses, claims, damages, liabilities or expenses arise as a result of any failure on the part of the issuing Insurance Company to perform its obligations under this Agreement on a timely basis; or (vii) arise as a result of a material breach by the Distributor of any provisions of this Agreement; or (viii) arise as a result of actions of a Broker-Dealer or its Representatives, if, and to the extent that, the Distributor has received monies from the Broker-Dealer as indemnification for losses by, or expenses incurred by, the Insurance Company; as limited by and in accordance with the provisions of Sections 12(a)(211(a)(2) and 12 (a)(311(a)(3) hereof. (2) The Distributor shall not be liable under this indemnification provision with respect to any losses, claims, damages, liabilities or litigation ("Losses" for purposes of this Section 12 (a)(211(a)(2)) incurred or assessed against an Indemnified Party that may arise from any Indemnified Party's willful misfeasance or bad faith. The Distributor's liability for Losses in the event of its breach of this Agreement shall be limited to that portion of Losses caused by its breach, and the Distributor shall not be liable for that portion of Losses caused by breach of this Agreement by an Indemnified Party or from any act or omission by an Indemnified Party. (3) The Distributor shall not be liable under this indemnification provision with respect to any claim made against an Indemnified Party unless that Indemnified Party shall have notified the Distributor in writing within a reasonable time five (5) 18 business days after the summons or other first legal process giving information of the nature of the claim shall have been served upon that Indemnified Party (or after the Indemnified Party shall have received notice of such service on any designated agent). Notwithstanding the foregoing, the failure of any Indemnified Party to give notice as provided herein shall not relieve the Distributor of its obligations hereunder except to the extent that the Distributor has been prejudiced by such failure to give notice. In addition, any failure by the Indemnified Party to notify the Distributor of any such claim shall not relieve the Distributor from any liability which it may have to the Indemnified Party against whom the action is brought otherwise than on account of this indemnification provision. In case any such action is brought against the Indemnified Parties, the Distributor shall be entitled to participate, at its own expense, in the defense of the action. The Distributor also shall be entitled to assume the defense thereof, with counsel satisfactory to the party named in the action; PROVIDEDprovided, HOWEVERhowever, that if the Indemnified Party shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to the Distributor, the Distributor shall not have the right to assume said defense, but shall pay the costs and expenses thereof (except that in no event shall the Distributor be liable for the fees and expenses of more than one counsel for Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances). After notice from the Distributor to the Indemnified Party of the Distributor's election to assume the defense thereof, and in the absence of such a reasonable conclusion that there may be different or additional defenses available to the Indemnified Party, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it, and the Distributor will not be liable to that party under this Agreement for any legal or other expenses subsequently incurred by the party independently in connection with the defense thereof other than reasonable costs of investigation. (4) The Indemnified Parties will notify the Distributor within a reasonable time, not to exceed five (5) business days, days of the receipt commencement of service of process in any litigation or proceedings against them in connection with the offer or sale of the Variable Products or the operation of the Variable Accounts.

By The Distributor. (1) The Distributor agrees to indemnify and hold harmless the Insurance CompaniesCompany and each director, each Affiliate officer, employee or agent of the Insurance Companies and the Underwriter and each of their directorsCompany, officers, employees or agents and each person, if any, who controls the Insurance Companies or the Underwriter Company within the meaning of the federal securities laws (collectively, the "Indemnified Parties" for purposes of this Section 12 (a11(a)) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of the DistributorInsurance Company) or litigation (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, regulation, at common law or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof) or settlements are related to the offer or sale of the Variable Products or the operation of the Variable Accounts and: (i) arise out of, or are based upon, violation(s) by the Distributor of federal or state securities law(s) or regulation(s), applicable banking law(s) or regulation(s), insurance law(s) or regulation(s) or any rule or requirement of the NASD; or (ii) arise out of, or are based upon, any tortious conduct (including oral or written misrepresentation), or any unlawful sales practices concerning the Variable Products by the Distributor; or (iii) arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances in which they were made, contained in any advertising, sales literature, or other promotional material designed, developed, and produced by the Distributor and used by it in the distribution of the Variable Products; PROVIDED THAT provided that the Distributor shall not be liable in any such case to the extent that such losses, claims, damages, liabilities or expenses arises out of, or are based upon, an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon information furnished in writing to the Distributor by the Insurance Companies or the Underwriter Company specifically for use in the preparation of any such promotional material; or (iv) arise out of, or are based upon, claims by Broker-Dealers, the Representatives or employees, agents or registered representatives of the Distributor for commissions or other compensation or remuneration of any type; or (v) arise as a result of any failure on the part of the Distributor, a Broker-Dealer or a Representative Distributor to submit Premiums, Purchase Payments, or Applications to the Insurance CompaniesCompany, or to submit the correct amount of a Premium or Purchase Payment, on a timely basis and in accordance with this Agreement, subject to applicable law; or (vi) arise as a result of any failure on the part of the Distributor, a Broker-Dealer or a Representative Distributor to deliver the Variable Products to purchasers thereof on a timely basis; PROVIDED THAT provided that the Distributor shall not be liable in any such case to the extent that such losses, claims, damages, liabilities or expenses arise as a result of any failure on the part of the issuing Insurance Company to perform its obligations under this Agreement on a timely basis; or (vii) arise as a result of a material breach by the Distributor of any provisions of this Agreement; or (viii) arise as a result of actions of a Broker-Dealer or its Representatives, if, and to the extent that, the Distributor has received monies from the Broker-Dealer as indemnification for losses by, or expenses incurred by, the Insurance Company; as limited by and in accordance with the provisions of Sections 12(a)(211(a)(2) and 12 (a)(311(a)(3) hereof. (2) The Distributor shall not be liable under this indemnification provision with respect to any losses, claims, damages, liabilities or litigation ("Losses" for purposes of this Section 12 (a)(211(a)(2)) incurred or assessed against an Indemnified Party that may arise from any Indemnified Party's willful misfeasance or bad faith. The Distributor's liability for Losses in the event of its breach of this Agreement shall be limited to that portion of Losses caused by its breach, and the Distributor shall not be liable for that portion of Losses caused by breach of this Agreement by an Indemnified Party or from any act or omission by an Indemnified Party. (3) The Distributor shall not be liable under this indemnification provision with respect to any claim made against an Indemnified Party unless that Indemnified Party shall have notified the Distributor in writing within a reasonable time five (5) business days after the summons or other first legal process giving information of the nature of the claim shall have been served upon that Indemnified Party (or after the Indemnified Party shall have received notice of such service on any designated agent). Notwithstanding the foregoing, the failure of any Indemnified Party to give notice as provided herein shall not relieve the Distributor of its obligations hereunder except to the extent that the Distributor has been prejudiced by such failure to give notice. In addition, any failure by the Indemnified Party to notify the Distributor of any such claim shall not relieve the Distributor from any liability which it may have to the Indemnified Party against whom the action is brought otherwise than on account of this indemnification provision. In case any such action is brought against the Indemnified Parties, the Distributor shall be entitled to participate, at its own expense, in the defense of the action. The Distributor also shall be entitled to assume the defense thereof, with counsel satisfactory to the party named in the action; PROVIDED, HOWEVER, that if the Indemnified Party shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to the Distributor, the Distributor shall not have the right to assume said defense, but shall pay the costs and expenses thereof (except that in no event shall the Distributor be liable for the fees and expenses of more than one counsel for Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances). After notice from the Distributor to the Indemnified Party of the Distributor's election to assume the defense thereof, and in the absence of such a reasonable conclusion that there may be different or additional defenses available to the Indemnified Party, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it, and the Distributor will not be liable to that party under this Agreement for any legal or other expenses subsequently incurred by the party independently in connection with the defense thereof other than reasonable costs of investigation. (4) The Indemnified Parties will notify the Distributor within a reasonable time, not to exceed five (5) business days, of the receipt of service of process in any litigation or proceedings against them in connection with the offer or sale of the Variable Products or the operation of the Variable Accounts.indemnification