IPR Indemnity 23.2.1 The Supplier shall ensure and procure that the availability, provision and use of the Goods and/or Services and the performance of the Supplier's responsibilities and obligations hereunder shall not infringe any Intellectual Property Rights of any third party.
23.2.2 The Supplier shall at all times during and after the Framework Period, on written demand indemnify the Authority against all Losses incurred by, or awarded against the Authority (whether before or after the making of the demand pursuant to the indemnity hereunder) arising from an IPR Claim.
23.2.3 If an IPR Claim is made, or the Supplier anticipates that an IPR Claim might be made, the Supplier may, at its own expense and sole option, either:
(a) procure for the Authority the right to continue using the relevant item which is subject to the IPR Claim; or
(b) replace or modify the relevant item with non-infringing substitutes provided that:
(i) the performance and functionality of the replaced or modified item is at least equivalent to the performance and functionality of the original item;
(ii) the replaced or modified item does not have an adverse effect on any other Goods and/or Services;
(iii) there is no additional cost to the Authority; and
(iv) the terms and conditions of this Framework Agreement shall apply to the replaced or modified Goods and/or Services.
23.2.4 If the Supplier elects to procure a licence in accordance with Clause 23.2.3(a) or to modify or replace an item pursuant to Clause 23.2.3(b), but this has not avoided or resolved the IPR Claim, then:
(a) the Authority may terminate this Framework Agreement by written notice with immediate effect; and
(b) without prejudice to the indemnity set out in Clause 23.2.2, the Supplier shall be liable for all reasonable and unavoidable costs of the modified or substitute items and/or services including the additional costs of procuring, implementing and maintaining the substitute items.
Seller Indemnity Each Seller will indemnify and hold harmless Pointer, its directors, officers, employees, any underwriter for Pointer and each person, if any, who controls Pointer (within the meaning of section 15 of the Securities Act or Section 20(a) of the Exchange Act) or such underwriter, from and against any and all losses, damages, claims, liabilities, costs or expenses (including any amounts paid in any settlement effected with such Seller's consent) asserted against or incurred by Pointer, its directors, officers, employees, any such underwriter or any such controlling person which shall be caused by (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the prospectus (or any amendment or supplement thereto), or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and the Seller will reimburse Pointer, its directors, officers, employees, any such underwriter and each such controlling person of Pointer or any such underwriter, promptly upon demand, for any reasonable legal or other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding; in each case to the extent, that such untrue statement or omission is contained in any information so furnished in writing by the Seller to Pointer for inclusion in the Registration Statement or such prospectus; provided, however, that the indemnity agreement contained in this Section 6.6 shall not apply to amounts paid in settlement of any losses if such settlement is effected without the prior written consent of the Seller. In no event shall the liability of the Seller hereunder be greater in amount than the dollar amount of the net proceeds received by the Seller upon the sale of the Pointer Shares giving rise to such indemnification obligation.
Seller’s Indemnity A. Seller agrees to indemnify and hold Buyer harmless from, against and in respect of, and shall on demand reimburse Buyer for:
(i) any and all loss, liability or damage resulting from any untrue representation, breach of warranty or nonfulfillment of any covenant or agreement by Seller contained in any Transaction Document to which it is a party;
(ii) any and all obligations of Seller not specifically assumed by Buyer pursuant to the terms of this Agreement, including any and all liabilities arising with respect to the System, Assets and Contracts or other agreements assumed by Buyer and relating to events which occurred prior to the Closing Date, except to the extent adjusted in favor of Buyer pursuant to Section 2.4;
(iii) any claims made by creditors with respect to non- compliance with any bulk sales law relating to this Agreement and the transactions contemplated hereby; and
(iv) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including without limitation, legal fees and expenses, incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnity.
B. If any claim covered by the foregoing indemnity is asserted against Buyer by a third party, Buyer shall promptly give the Seller notice thereof and give Seller an opportunity to defend the same with counsel of Seller's choice at Seller's expense. Buyer shall provide reasonable cooperation in connection with such defense. In the event that Seller desires to compromise or settle any such claim, Buyer shall have the right to consent to such settlement or compromise; provided, however, that if such compromise or settlement is for money damages only and will include a full release and discharge of Buyer, and Buyer withholds its consent to such compromise or settlement, Buyer and Seller agree that (1) Seller's liability shall be limited to the amount of the proposed settlement and Seller shall thereupon be relieved of any further liability with respect to such claim, and (2) from and after such date, Buyer will undertake all legal costs and expenses in connection with any such claim and shall indemnify Seller from any further liability or obligation to such third party in connection with such claim in excess of the amount of the proposed settlement. If Seller fails to defend any claim within a reasonable time, Buyer shall be entitled to assume the defense thereof, and Seller shall be liable to Buyer for its expenses reasonably incurred, including attorney's fees and payment of any settlement amount or judgment.
C. Notwithstanding anything in this Agreement to the contrary,
(i) Seller shall not be required to indemnify or otherwise be liable to Buyer for any claim unless the losses, liabilities, damages, costs and expenses of Buyer arising from all such claims exceeds $25,000 (other than with respect to any claims based on a breach of the representation set forth in Section 4.23, which claims may be made notwithstanding, and shall not be counted toward, the basket amount). If the losses, liabilities, damages, costs and expenses of Buyer arising from all such claims exceeds $25,000, Seller shall be required to indemnify Buyer for the full amount of all such claims, subject to the other limitations in this Agreement;
(ii) Seller shall not be required to indemnify or otherwise be liable to Buyer for any claim to the extent that the losses, liabilities, damages, costs and expenses of Buyer arising from all such claims exceed in the aggregate $2,500, 000;
(iii) Seller shall not be required to indemnify or otherwise be liable to Buyer for any claim hereunder unless notice of such claim is given to Seller: (a) with respect to any claims based on a breach of the representations and warranties set forth in the first sentence of Section 4.5, and Sections 4.9 and 4.16, within six (6) years after the Closing Date; (b) with respect to any claims based on a breach of the representations and warranties set forth in Section 4.12, prior to the expiration of the applicable statute of limitations relating to the subject matter of such representation and warranty; (c) with respect to any claims arising out of fraudulent conduct involving intentional misrepresentation on behalf of Seller and any claims by third parties against Buyer, within eighteen months after the Closing Date; and (d) with respect to all other claims, within one year after the Closing Date.
Expenses; Indemnity (a) Borrower covenants and agrees to pay or, if Borrower fails to pay, to reimburse, Lender upon receipt of notice from Lender for all costs and expenses (including reasonable attorneys’ fees and disbursements) incurred by Lender in connection with (i) the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby and all the costs of furnishing all opinions by counsel for Borrower (including without limitation any opinions requested by Lender as to any legal matters arising under this Agreement or the other Loan Documents with respect to the Property); (ii) Borrower’s ongoing performance of and compliance with Borrower’s respective agreements and covenants contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date, including, without limitation, confirming compliance with environmental and insurance requirements; (iii) Lender’s ongoing performance and compliance with all agreements and conditions contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date; (iv) the negotiation, preparation, execution, delivery and administration of any consents, amendments, waivers or other modifications to this Agreement and the other Loan Documents and any other documents or matters requested by Lender; (v) securing Borrower’s compliance with any requests made pursuant to the provisions of this Agreement; (vi) the filing and recording fees and expenses, title insurance and reasonable fees and expenses of counsel for providing to Lender all required legal opinions, and other similar expenses incurred in creating and perfecting the Liens in favor of Lender pursuant to this Agreement and the other Loan Documents; (vii) enforcing or preserving any rights, either in response to third party claims or in prosecuting or defending any action or proceeding or other litigation, in each case against, under or affecting Borrower, this Agreement, the other Loan Documents, the Property, or any other security given for the Loan; and (viii) enforcing any obligations of or collecting any payments due from Borrower under this Agreement, the other Loan Documents or with respect to the Property, or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or of any insolvency or bankruptcy proceedings or any other amounts required under Section 9.3; provided, however, that Borrower shall not be liable for the payment of any such costs and expenses to the extent the same arise by reason of the gross negligence, illegal acts, fraud or willful misconduct of Lender. Any cost and expenses due and payable to Lender may be paid by Lender from any Reserve Account.
(b) Borrower shall indemnify, defend and hold harmless the Indemnified Parties from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for Lender in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not Lender shall be designated a party thereto), that may be imposed on, incurred by, or asserted against any Indemnified Party in any manner relating to or arising out of (i) any breach by Borrower of its Obligations under, or any misrepresentation by Borrower contained in, this Agreement or the other Loan Documents, or (ii) the use or intended use of the proceeds of the Loan (the liabilities, losses, costs, expenses and other matters described in this subparagraph (b), collectively, the “Indemnified Liabilities”); provided, however, that Borrower shall not have any obligation to an Indemnified Party hereunder to the extent that such Indemnified Liabilities arise from the gross negligence, illegal acts, fraud or willful misconduct of such Indemnified Party. To the extent that the undertaking to indemnify, defend and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, Borrower shall pay the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by the Indemnified Parties.
