Common use of General Indemnification Provisions Clause in Contracts

General Indemnification Provisions. The amount of any Losses suffered or incurred by any Indemnitee shall be reduced by the amount of any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation or knowledge by a party of a breach of a representation or warranty of another party hereto shall affect the representations and warranties of the breaching party or the recourse available to such first party under any provision of this Agreement (including this ARTICLE VIII) with respect thereto. For all purposes of this ARTICLE VIII including for purposes determining whether there has been a breach giving rise to the indemnification claim and the amount of Losses, all of the representations, warranties and covenants set forth in this Agreement (including the schedules, exhibits and annexes hereto) that are qualified by materiality, Material Adverse Effect or words of similar import or effect will be deemed to have been made without any such qualification. In any claim for indemnification under this Agreement, no Person shall be required to indemnify any Person for punitive damages or special damages, unless such punitive damages, or special damages are actually awarded to a third party.

General Indemnification Provisions. (a) The amount of any Losses suffered or incurred by any Indemnitee shall be reduced by the amount of any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. . (b) No investigation by Buyer and/or Parent or knowledge by a party Knowledge of Buyer and/or Parent of a breach of a representation or warranty of another party hereto Seller or any Principal shall affect the representations and warranties of Seller or the breaching party Principals or the recourse available to such first party Buyer or Parent under any provision of this Agreement (including this ARTICLE VIIIIX) with respect thereto. For all . (c) Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this ARTICLE VIII including for purposes determining whether there has been IX, the amount of any Loss arising from the breach of any representation, warranty, covenant, obligation or agreement contained in this Agreement shall be the entire amount of any Loss actually incurred by the respective Indemnitee as a result of such breach giving rise and not just that portion of the Loss that exceeds the relevant level of materiality, if any. (d) Except to the extent otherwise provided in Section 9.7 below, any indemnification obligation of an Indemnitor under this ARTICLE IX will be paid in cash within three (3) Business Days after the determination of such obligation in accordance with Section 9.4. (e) The provisions of this ARTICLE IX notwithstanding, at its sole discretion and without limiting any other rights of Buyer and/or Parent under this Agreement or any Ancillary Document or at law or equity, to the extent that a Buyer Indemnified Party is entitled to indemnification hereunder, if Seller and Principals fail or refuse to promptly indemnify such Buyer Indemnified Party as provided herein then Buyer and/or Parent (or any other Buyer Indemnified Party) may offset the full amount to which such Buyer Indemnified Party is entitled, in whole or in part, by reducing the amount of any payment or other obligation due to any of Seller or Principals pursuant to this Agreement or any Ancillary Document, including the Holdback or any amounts owed by Buyer and/or Parent pursuant to any outstanding indemnification claim and the amount of Losses, all of the representations, warranties and covenants set forth in this Agreement (including the schedules, exhibits and annexes hereto) that are qualified by materiality, Material Adverse Effect or words of similar import or effect will be deemed to have been made without any such qualification. In any claim for indemnification under this Agreement, no Person shall be required to indemnify any Person for punitive damages or special damages, unless such punitive damages, or special damages are actually awarded to a third partypayments otherwise payable hereunder.

General Indemnification Provisions. The amount (a) Notwithstanding any of the provisions of this Agreement, Parent shall not be entitled to make claims for Damages under Sections 9.1(a) hereof unless and until the aggregate of such claims exceeds $700,000 (the "Indemnification Threshold") and then only to the extent of such excess; provided, however, that the Indemnification Threshold shall not be applicable to claims by Parent for Damages arising from a breach by a Seller of any Losses suffered provisions of Sections 3.10 and 4.9 and Article VIII hereof (the "Excluded Provisions") or incurred by from an indemnification obligation arising under Section 9.1(b) hereof and any Indemnitee claim arising from a breach of any Excluded Provisions or from an indemnification obligation arising under Section 9.1(b) hereof shall not be taken into account for purposes of determining when the Indemnification Threshold has been met. Notwithstanding any of the provisions of this Agreement, in no event shall the aggregate indemnification obligations of the Sellers pursuant to Section 9.1(a) (except for any indemnification obligations arising from any breach of the Excluded Provisions) exceed the value of the Escrowed Shares as determined pursuant to Section 9.4(f) below. Notwithstanding anything herein to the contrary, all indemnification obligations of the Sellers pursuant to Section 9.1(a) (except for any indemnification obligations arising from any breach of the Excluded Provisions) shall be reduced by satisfied exclusively from the amount of any insurance proceeds or Escrowed Shares held under the Escrow Agreement and Parent shall have no other cash receipts paid to recourse against the Indemnitee or any Affiliate thereof as a reimbursement Sellers with respect to such Losses claims. (b) Parent shall be entitled to make claims for Damages under Section 9.1(a) with respect to a breach of any Excluded Provision and no right under Section 9.1(b) without such Damages having to exceed any threshold. The aggregate indemnification obligations of subrogation the Sellers with respect to the claims referred to in the immediately preceding sentence shall accrue not be subject to any insurer hereunderlimitation. However, Parent shall not have any right, in connection with any such claims, to retain (or cause to be retained) under the Escrow Agreement any Merger Securities beyond the end of the Basic Survival Period unless Parent has properly made such a claim during the Basic Survival Period, it being further agreed that to the extent any such claims are made by Parent after the end of the Basic Survival Period, Parent shall have only a general unsecured claim against the Sellers with respect thereto. (c) The parties further agree that the possession of any Merger Securities by the Custodian pursuant to Section 5.11(b) is solely for the purpose of implementing the trading restrictions provided for therein and that any Merger Securities so held do not constitute additional collateral securing the performance of the Sellers' indemnification obligations under Section 9.1. (d) In the event that any time subsequent to an indemnification payment hereunder the Damages to the indemnified party are reduced by tax benefits or recovery, 57 settlement or otherwise under any insurance coverage or third party claim, the amount of such reduction (less any cost, expense, premium or tax paid) will be promptly repaid to the indemnifying party. (e) For purposes of this Article IX, "Damages" means costs, losses, liabilities, damages, lawsuits, deficiencies, claims, Taxes and expenses (whether or not arising out of third-party claims or governmental examinations, inspections or audits), including, without limitation, interest, penalties, reasonable attorneys' fees and all amounts paid in investigation, defense or settlement of any of the foregoing; provided, however, that "Damages" shall not include punitive damages except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage)punitive damages recovered by third parties. The term "Damages" is not limited to matters asserted by third parties against either the Sellers or against Parent or the Company, including any indemnification received but includes Damages incurred or sustained by the Indemnitee Sellers or such Affiliate from an unrelated by Parent or by the Company in the absence of third party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation or knowledge by a party of a breach of a representation or warranty of another party hereto shall affect the representations and warranties of the breaching party or the recourse available to such first party under any provision of this Agreement (including this ARTICLE VIII) with respect thereto. For all purposes of this ARTICLE VIII including for purposes determining whether there has been a breach giving rise to the indemnification claim and the amount of Losses, all of the representations, warranties and covenants set forth in this Agreement (including the schedules, exhibits and annexes hereto) that are qualified by materiality, Material Adverse Effect or words of similar import or effect will be deemed to have been made without any such qualification. In any claim for indemnification under this Agreement, no Person shall be required to indemnify any Person for punitive damages or special damages, unless such punitive damages, or special damages are actually awarded to a third partyclaims.

General Indemnification Provisions. The amount of any Losses suffered or incurred by any Indemnitee shall be reduced by (i) the amount of any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment, and (ii) any Tax Benefits actually realized by the Indemnitee from the incurrence or payment of any such Losses. To the extent that any Tax Benefit is actually realized following the date that an indemnity payment is made by the Indemnitor to the Indemnitee hereunder, then no later than five (5) Business Days after a Tax Return of the Indemnitee has been filed that takes into account the deduction, loss or other Tax attribute generated as a result of the Losses that gave rise to the indemnification by the Indemnitor, the Indemnitee shall pay to the Indemnitor as an indemnification payment under this ARTICLE VII subject to Section 7.7, the amount of the Tax Benefit realized as a result of the Losses that gave rise to the indemnification by the Indemnitor. No investigation by a Buyer Party or its Representatives, on the one hand, or the Seller Parties or their Representatives, on the other hand, or knowledge by a party Buyer Party or its Representatives, on the one hand, or the Seller Parties or their Representatives, on the other hand, of a breach of a representation or warranty of another party hereto the other set of parties shall affect the such other set of parties’ representations and warranties of the breaching party or the recourse available to such first party or any other Indemnitee of such first party under any provision of this Agreement (including this ARTICLE VIIIVII) with respect thereto. For all Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this ARTICLE VIII including for purposes determining whether there has been a breach giving rise to the indemnification claim and VII, the amount of Lossesany Loss arising from the breach of any representation, all of the representationswarranty, warranties and covenants set forth covenant, obligation or agreement contained in this Agreement (including shall be the schedules, exhibits entire amount of any Loss actually incurred by the respective Indemnitee as a result of such breach and annexes hereto) not just that are qualified by portion of the Loss that exceeds the relevant level of materiality, Material Adverse Effect if any. No Seller will have any right to seek contribution from a RHI Company with respect to all or words any part of similar import or effect will be deemed to have been made without any such qualification. In any claim for Seller’s indemnification obligations under this Agreement, no Person shall ARTICLE VII. The Buyer Indemnified Parties will not be required to indemnify make any Person for punitive damages claim against a RHI Company in respect of any representation, warranty, covenant or special damages, unless such punitive damages, or special damages are actually awarded any other obligation of the Company to a third Buyer Party hereunder or under any Ancillary Document to which the Company is a party, and may solely seek action against Sellers.

General Indemnification Provisions. The amount of any Losses suffered or incurred by any Indemnitee shall be reduced by the amount of any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation or knowledge by a party Buyer or its Representatives, on the one hand, or the Seller or its Representatives, on the other hand, of a breach of a representation or warranty of another party hereto the other set of parties shall affect the such other set of parties' representations and warranties of the breaching party or the recourse available to such first party or any other Indemnitee of such first party under any provision of this Agreement (including this ARTICLE VIIIArticle VI) with respect thereto. For all purposes of this ARTICLE VIII Article VI including for purposes determining whether there has been a breach giving rise to the indemnification claim and the amount of Losses, all of the representations, warranties and covenants set forth in this Agreement (including the schedules, exhibits and annexes Schedules hereto) or any Ancillary Document that are qualified by materiality, Material Adverse Effect or words of similar import or effect will be deemed to have been made without any such qualification. In Seller will not have any claim for right to seek contribution from the Company, any Subsidiary or Buyer or any of its Affiliates or Buyer Indemnified Parties with respect to all or any part of Seller's indemnification obligations under this Agreement, no Person shall Article VI. The Buyer Indemnified Parties will not be required to indemnify make any Person claim against the Company in respect of any representation, warranty, covenant or any other obligation of the Company to Buyer hereunder or under any Ancillary Document to which the Company is a party and may solely seek action against Seller. Any Losses under this Agreement and the Ancillary Documents shall be determined without duplication of recovery by reason of the state of facts giving rise to such Losses constituting a breach of more than one representation, warranty, covenant or agreement. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for punitive damages or special damagesall Tax purposes, unless and no party may take any position inconsistent with such punitive damages, or special damages are actually awarded to a third partycharacterization.

General Indemnification Provisions. The amount of any Losses suffered or incurred by any Indemnitee shall be reduced by the amount of any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation or knowledge by a party Notwithstanding anything in this Agreement to the contrary, for purposes of a breach of a representation or warranty of another party hereto shall affect the representations and warranties application of the breaching party or the recourse available to such first party under any provision indemnification provisions of this Agreement (including this ARTICLE VIII) with respect thereto. For all purposes of this ARTICLE VIII including for purposes determining whether there has been a breach giving rise to the indemnification claim and , the amount of Lossesany Loss arising from the breach of any representation, all of the representationswarranty, warranties and covenants set forth covenant, obligation or agreement contained in this Agreement (including shall be the schedules, exhibits entire amount of any Loss actually incurred by the respective Indemnitee as a result of such breach and annexes hereto) not just that are qualified by portion of the Loss that exceeds the relevant level of materiality, Material Adverse Effect if any. No Seller will have any right to seek contribution from the Company or words Buyer with respect to all or any part of similar import or effect such Seller’s indemnification obligations under this ARTICLE VIII. The Buyer Indemnified Parties will be deemed to have been made without any such qualification. In not make any claim for indemnification against the Sellers in respect of any representation, warranty, covenant or any other obligation of the Company to Buyer hereunder or under this Agreementany Ancillary Document to which the Company is a party, no Person shall be required to indemnify any Person for punitive damages or special damages, unless such punitive damages, or special damages are actually awarded to a third partyand may solely seek action against the Company.

General Indemnification Provisions. Solely for purposes of determining the amount of any Loss under this ARTICLE IX (but not for determining whether there has been any breach of this Agreement for which an Indemnitee is entitled to indemnification under this Agreement), any representation or warranty given or made by a party that is qualified in scope as to materiality or Material Adverse Effect shall be deemed to be made or given without such qualification. The amount of any Losses suffered or incurred by any Indemnitee shall be reduced by the amount of any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or its Representatives, on the one hand, or the Company or Parent or their respective Representatives, on the other hand, or knowledge by a party Buyer or its Representatives, on the one hand, or the Company or Parent or their respective Representatives, on the other hand, of a breach of a representation or warranty of another party hereto the other parties shall affect the such other parties’ representations and warranties of the breaching party or the recourse available to such first party or any other Indemnitee of such first party under any provision of this Agreement (including this ARTICLE VIII) with respect thereto. For Parent will not have any right to seek contribution from the Company or Buyer with respect to all purposes or any part of Parent’s indemnification obligations under this ARTICLE VIII including for purposes determining whether there has been a breach giving rise IX. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the applicable purchase price for all Tax purposes, and no party may take any position inconsistent with such characterization. Any indemnification claim payments to or by the Company under this ARTICLE IX will take into account the ownership interests of Buyer in the Company at such time, and the amount of Losses, all of the representations, warranties and covenants set forth in this Agreement (including the schedules, exhibits and annexes hereto) that are qualified indemnifiable Losses payable to or by materiality, Material Adverse Effect or words of similar import or effect Buyer hereunder will be deemed to have been made without any such qualification. In any claim adjusted for indemnification under this Agreement, no Person shall be required to indemnify any Person for punitive damages the indirect benefit received or special damages, unless such punitive damages, or special damages are actually awarded to a third partycost incurred by Buyer through its ownership interests in the Company.

General Indemnification Provisions. The amount Subject to Section 7.1, from and after the Effective Time, Parent and the Surviving Corporation and their respective affiliates, officers, directors, shareholders, representatives and agents (collectively the “Indemnitees”) shall be indemnified and held harmless by each Company Shareholder and each Company Option Holder (each, an “Indemnifying Party”), each of whom shall be severally liable only to the extent of each Indemnifying Party’s pro rata interest in the “Indemnification Reserve” (as defined below), from and against and in respect of any and all Losses suffered incurred by, resulting from, arising out of, relating to, imposed upon or incurred by Parent, the Surviving Corporation or any other Indemnitee shall be reduced by reason of (i) any inaccuracy in or breach of any of Company’s representations, warranties, covenants or agreements contained in this Agreement or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the transactions contemplated hereby or thereby to the extent the indemnifiable Losses with respect thereto exceed, in the aggregate, the Loss Deductible and then only for the amount of indemnifiable Losses in excess of the Loss Deductible, which indemnifiable Losses shall be calculated without giving effect to any insurance proceeds materiality or other cash receipts paid similar limitations or qualifications herein or therein, (ii) any claim by a holder of shares of Company Preferred Stock that are converted to Company Common Stock immediately prior to the Indemnitee Effective Time or any Affiliate thereof as that are outstanding immediately prior to the Effective Time that such a reimbursement with respect to such Losses (and no right of subrogation shall accrue holder is entitled to any insurer hereunderconsideration by virtue of such holding other than as provided in Article II hereof, (iii) all Taxes of Company for any Taxable periods or portions thereof ending on or before the Effective Time, except to the extent that such waiver of subrogation would prejudice Taxes are included in Closing Indebtedness, (iv) any applicable insurance coverage)Negative Adjustment Shortfall, (v) any amounts payable by the Company Shareholders to the Accounting Firm pursuant to Section 2.5, and (vi) any and all reasonable costs and expenses, including reasonable legal fees and expenses, in connection with enforcing the indemnification rights of Parent pursuant to this Section 7.2. After the Effective Time, the Indemnitees’ sole and exclusive remedy for any indemnification received by Losses shall be the Indemnitee or such Affiliate from an unrelated party ability to seek indemnity with respect to such Losses, net of indemnifiable Losses from the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation or knowledge by a party of a breach of a representation or warranty of another party hereto shall affect the representations and warranties of the breaching party or the recourse available Indemnification Reserve pursuant to such first party under any provision of this Agreement (including this ARTICLE VIII) with respect thereto. For all purposes of this ARTICLE VIII including for purposes determining whether there has been a breach giving rise to the indemnification claim and the amount of Losses, all of the representations, warranties and covenants set forth in this Agreement (including the schedules, exhibits and annexes hereto) that are qualified by materiality, Material Adverse Effect or words of similar import or effect will be deemed to have been made without any such qualification. In any claim for indemnification under this Agreement, no Person shall be required to indemnify any Person for punitive damages or special damages, unless such punitive damages, or special damages are actually awarded to a third partyArticle VII.

General Indemnification Provisions. The amount of any Losses suffered or incurred by any Indemnitee shall be reduced by the amount of any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses Xxxxxx (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation or knowledge by a party the Purchaser or Fresh2 or their respective Representatives, on the one hand, or the Seller Parties or their Representatives, on the other hand, or knowledge by the Purchaser or Fresh2 or their respective Representatives, on the one hand, or the Seller Parties or their Representatives, on the other hand, of a breach of a representation or warranty of another party hereto the other set of Parties shall affect the such other set of Parties’ representations and warranties of the breaching party or the recourse available to such first party set of Parties or any other Indemnitee of such first set of Parties under any provision of this Agreement (including this ARTICLE VIIISection 7) with respect thereto. For all purposes of this ARTICLE VIII Section 7, including for purposes determining whether there has been a breach giving rise to the indemnification claim and the amount of Losses, all of the representations, warranties and covenants set forth in this Agreement (including the schedules, exhibits and annexes heretoDisclosure Schedules) or any other Transaction Document that are qualified by materiality, Material Adverse Effect or words of similar import or effect will be deemed to have been made without any such qualification. In No Seller will have any claim for right to seek contribution from any Group Company or Purchaser with respect to all or any part of such Seller’s indemnification obligations under this Agreement, no Person shall Section 7. The Purchaser Indemnified Parties will not be required to indemnify make any claim against any Group Company in respect of any representation, warranty, covenant or any other obligation of a Group Company to the Purchaser or Fresh2 hereunder or under any other Transaction Document to which a Group Company is a party, and may solely seek action against Sellers. Any Losses under this Agreement and the other Transaction Documents shall be determined without duplication of recovery by reason of the state of facts giving rise to such Losses constituting a breach of more than one representation, warranty, covenant or agreement. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for all Tax purposes, and no Party may take any position inconsistent with such characterization. The provisions in this Section 7 shall be enforceable regardless of whether the Liability is based upon past, present or future acts, claims or Laws and regardless of whether any Person for punitive damages (including the Person from whom relief is sought) alleges or special damagesproves the sole, unless such punitive damagesconcurrent, contributory, or special damages are actually awarded to a third partycomparative negligence of the Person seeking relief, or the sole or concurrent strict liability imposed upon the person seeking relief.

General Indemnification Provisions. The amount of any Losses suffered or incurred by any Indemnitee shall be reduced by the amount of any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation or knowledge by a party of a breach of a representation or warranty of another party hereto shall affect the representations and warranties of the breaching party or the recourse available to such first party under any provision of this Agreement (including this ARTICLE VIII) with respect thereto. For all purposes of this ARTICLE VIII including for purposes determining whether there has been a breach giving rise to the indemnification claim and the amount of Losses, all of the representations, warranties and covenants set forth in this Agreement (including the schedules, exhibits and annexes hereto) that are qualified by materiality, Material Adverse Effect or words of similar import or effect will be deemed to have been made without any such qualification. In any claim 3.1 All claims for indemnification under this Agreement, no Person Agreement in respect of any third party claim shall be required asserted and resolved as provided in this Section 3. 3.2 In the event that any third party claim or demand (a “Claim”) for which either party (“Indemnitor”) may be liable under this Agreement to indemnify the other party (“Indemnitee”) is asserted against or sought to be collected from Indemnitee, Indemnitee shall as promptly as practicable inform Indemnitor in writing of the Claim, and shall provide such details of the Claim (including amount, if known) and any Person documents relating thereto as are then available to it (the “Claim Notice”). The failure on the part of Indemnitee to give a Claim Notice promptly shall not relieve the Indemnitor of any indemnification obligations hereunder unless, and then only to the extent that, the Indemnitor is materially prejudiced thereby. 3.3 The Indemnitor shall have 15 days from delivery of the Claim Notice (the “Notice Period”) to inform Indemnitee whether or not it desires to conduct the defence of the Claim, in which case Indemnitor shall, at its sole cost and expense, have the right to defend Indemnitee by appropriate proceedings and by counsel reasonably acceptable to Indemnitee and shall have the sole power to direct and control such defence; provided that Indemnitee may participate in such defence at its sole cost and expense. 3.4 Indemnitee shall not settle a Claim for punitive damages which it is indemnified by Indemnitor unless Indemnitor does not defend Indemnitee against such Claim, except that Indemnitee shall have the sole right to defend, settle or special damagescompromise a Claim with respect to which it has waived its right to indemnification pursuant to this Agreement. 3.5 If Indemnitor does not serve notice under Section 3.3 during the Claim Period, unless Indemnitee may take such punitive damagessteps as are reasonable to defend itself against a Claim and to settle or compromise such Claim. 3.6 Unless Indemnitee agrees (such agreement not to be unreasonably withheld) Indemnitor may settle or compromise actions and consent to entry of judgments only on terms providing for the delivery of the claimant or plaintiff of a duly executed written unconditional release of Indemnitee from all liability in respect of such action. 3.7 During the Notice Period, or special damages are actually awarded Indemnitee may, without prejudicing its right to indemnification, take reasonable actions to preserve all and any rights with respect to the subject matter of a third partyClaim notified to Indemnitor. 3.8 Indemnitee will provide all assistance and access to all documents and personnel reasonably required by Indemnitor in connection with the Defence of any Claim.

General Indemnification Provisions. The amount of any Losses suffered or incurred by any Indemnitee shall be reduced by the amount of any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation or knowledge by a party Buyer or its Representatives, on the one hand, or the Seller or its Representatives, on the other hand, of a breach of a representation or warranty of another party hereto the other set of parties shall affect the such other set of parties’ representations and warranties of the breaching party or the recourse available to such first party or any other Indemnitee of such first party under any provision of this Agreement (including this ARTICLE VIIIArticle VI) with respect thereto. For all purposes of this ARTICLE VIII Article VI including for purposes determining whether there has been a breach giving rise to the indemnification claim and the amount of Losses, all of the representations, warranties and covenants set forth in this Agreement (including the schedules, exhibits and annexes Schedules hereto) or any Ancillary Document that are qualified by materiality, Material Adverse Effect or words of similar import or effect will be deemed to have been made without any such qualification. In Seller will not have any claim for right to seek contribution from the Company, any Subsidiary or Buyer or any of its Affiliates or Buyer Indemnified Parties with respect to all or any part of Seller’s indemnification obligations under this Agreement, no Person shall Article VI. The Buyer Indemnified Parties will not be required to indemnify make any Person claim against the Company in respect of any representation, warranty, covenant or any other obligation of the Company to Buyer hereunder or under any Ancillary Document to which the Company is a party, and may solely seek action against Seller. Any Losses under this Agreement and the Ancillary Documents shall be determined without duplication of recovery by reason of the state of facts giving rise to such Losses constituting a breach of more than one representation, warranty, covenant or agreement. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for punitive damages or special damagesall Tax purposes, unless and no party may take any position inconsistent with such punitive damages, or special damages are actually awarded to a third partycharacterization.

General Indemnification Provisions. The amount of any Losses suffered or incurred by any Indemnitee shall be reduced by the amount of any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses Xxxxxx (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation or knowledge by a party the Purchaser or Fresh2 or their respective Representatives, on the one hand, or the Seller Parties or their Representatives, on the other hand, or knowledge by the Purchaser or Fresh2 or their respective Representatives, on the one hand, or the Seller Parties or their Representatives, on the other hand, of a breach of a representation or warranty of another party hereto the other set of Parties shall affect the such other set of Parties’ representations and warranties of the breaching party or the recourse available to such first party set of Parties or any other Indemnitee of such first set of Parties under any provision of this Agreement (including this ARTICLE VIIISection 7) with respect thereto. For all purposes of this ARTICLE VIII Section 7, including for purposes determining whether there has been a breach giving rise to the indemnification claim and the amount of Losses, all of the representations, warranties and covenants set forth in this Agreement (including the schedules, exhibits and annexes hereto) or any other Transaction Document that are qualified by materiality, Material Adverse Effect or words of similar import or effect will be deemed to have been made without any such qualification. In No Seller will have any claim for right to seek contribution from any Group Company or Purchaser with respect to all or any part of such Seller’s indemnification obligations under this Agreement, no Person shall Section 7. The Purchaser Indemnified Parties will not be required to indemnify make any claim against any Group Company in respect of any representation, warranty, covenant or any other obligation of a Group Company to the Purchaser or Fresh2 hereunder or under any other Transaction Document to which a Group Company is a party, and may solely seek action against Sellers. Any Losses under this Agreement and the other Transaction Documents shall be determined without duplication of recovery by reason of the state of facts giving rise to such Losses constituting a breach of more than one representation, warranty, covenant or agreement. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for all Tax purposes, and no Party may take any position inconsistent with such characterization. The provisions in this Section 7 shall be enforceable regardless of whether the Liability is based upon past, present or future acts, claims or Laws and regardless of whether any Person for punitive damages (including the Person from whom relief is sought) alleges or special damagesproves the sole, unless such punitive damagesconcurrent, contributory, or special damages are actually awarded to a third partycomparative negligence of the Person seeking relief, or the sole or concurrent strict liability imposed upon the person seeking relief.

General Indemnification Provisions. (a) The amount of any Losses suffered or incurred payable by any an Indemnitor to the Indemnitee shall be reduced by the amount net of any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received i) amounts actually recovered by the Indemnitee under applicable insurance policies, net of the costs of collection and any actual increase in insurance premiums for the two year period following the year in which the Loss occurs resulting from such Loss or insurance payment, (ii) Tax benefit actually realized by the Indemnitee during the Tax year in which such Affiliate Losses occur arising from an the incurrence or payment of any such Losses, determined on a “with and without” basis after taking into account all other items of income, gain, credit, deduction and loss, and (iii) indemnification or reimbursement payments actually recovered by the Indemnitee from unrelated party third parties (for the avoidance of doubt, excluding any other Buyer Indemnified Party if the Indemnitee is a Buyer Indemnified Party or any other Seller Indemnified Party if the Indemnitee is a Seller Indemnified Party) with respect to such Losses, net of the costs of collection collection. In each case of clauses of (i), (ii) and (iii), the Indemnitee has a duty to use its commercially reasonable efforts to obtain any related anticipated future increases such insurance proceeds, Tax benefits and indemnification or reimbursement payments; provided, that in insurance premiums resulting no event shall the Indemnitee be required to (A) make a claim against an insurer or other Person before bringing a claim for indemnification under this ARTICLE VII or (B) seek litigation or other Action in connection with any recovery of Losses from an insurer or other Person. (b) Any Losses under this Agreement and the Ancillary Documents shall be determined without duplication of recovery by reason of the state of facts giving rise to such Loss Losses constituting a breach of more than one representation, warranty, covenant or insurance payment. agreement. (c) Each Indemnitee agrees to use its commercially reasonable efforts to mitigate any Losses it may incur for which it is entitled to indemnification from any Indemnitor pursuant to this Agreement. (d) No investigation by Buyer or its Representatives, on the one hand, or the Seller Parties or their Representatives, on the other hand, or knowledge by a party Buyer or its Representatives, on the one hand, or the Seller Parties or their Representatives, on the other hand, of a breach of a representation or warranty of another party hereto the other set of parties shall affect the such other set of parties’ representations and warranties of the breaching party or the recourse available to such first party or any other Indemnitee of such first party under any provision of this Agreement (including this ARTICLE VIIIVII) with respect thereto. For all . (e) Except as expressly provided in this Agreement, and except for Fraud Claims, claims based on willful misconduct or any equitable remedies that a party may be entitled to, including claims seeking injunctions or specific performance, the provisions for indemnification set forth in this ARTICLE VII are the exclusive remedies of the parties hereto with respect to any claims arising out of or in connection with this Agreement, and shall be in lieu of any rights under contract, tort, equity or otherwise. (f) Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this ARTICLE VIII including for purposes determining whether there has been a breach giving rise to the indemnification claim and VII, the amount of Lossesany Loss arising from the breach of any representation, warranty, covenant, obligation or agreement contained in this Agreement shall be the entire amount of any Loss actually incurred by the respective Indemnitee as a result of such breach and not just that portion of the Loss that exceeds the relevant level of materiality, if any. No Seller will have any right to seek contribution from any Lighthouse Company or Buyer with respect to all or any part of such Seller’s indemnification obligations under this ARTICLE VII. The Buyer Indemnified Parties will not be required to make any claim against the Company in respect of any representation, warranty, covenant or any other obligation of the Company to Buyer hereunder or under any Ancillary Document to which the Company is a party, and may solely seek action against Sellers. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for all Tax purposes, and no party may take any position inconsistent with such characterization. (g) Notwithstanding anything to the contrary contained in this Agreement, Losses shall not include, and no party shall not be liable for, (i) any exemplary or punitive damages, or (ii) any consequential damages that are not reasonably foreseeable as a result of or arising from a party’s breach of the representations, warranties and or covenants set forth in this Agreement (including the schedules, exhibits and annexes hereto) that are qualified by materiality, Material Adverse Effect or words of similar import or effect will be deemed to have been made without any such qualification. In any claim for indemnification under this Agreement, no Person shall be required except, in each case, to indemnify any Person for punitive damages or special damages, unless such punitive damages, or special damages are actually awarded the extent paid to a third party.

General Indemnification Provisions. (a) The indemnified party shall promptly notify the indemnifying party of any claim, demand, action or proceeding for which indemnification is sought under Section 6.2 or 6.3 of this Agreement and, if such claim, demand, action or proceeding is a third party claim, demand, action or proceeding, the indemnifying party will have the right, at its own expense, to assume the defense thereof, using counsel reasonably acceptable to the indemnified party. The indemnified party shall have the right to participate, at its own expense, with respect to any such third party claim, demand, action or proceeding. In connection with any such third party claim, demand, action or proceeding, the parties thereto shall cooperate with each other and provide each other with access to relevant books and records in their possession. No such third party claim, demand, action or proceeding shall be settled without prior written consent of the indemnified party, provided, however, that if a firm, written offer is made to settle any such third party claim, demand, action or proceeding and the indemnifying party proposes to accept such settlement and the indemnified party refuses to consent to such settlement, then: (i) the indemnifying party shall be excused from, and the indemnified party shall be solely responsible for, all further defense of such third party claim, demand, action or proceeding; and (ii) the maximum liability of the indemnifying party relating to such third party claim, demand, action, or proceeding shall be the amount of any Losses suffered the proposed settlement if the amount thereafter recovered from the indemnified party on such third party claim, demand, action or incurred by any Indemnitee proceeding is greater that the amount of the proposed settlement. (b) Any indemnification payments to be made herein shall be reduced by limited to the amount of any liability or damage that remains after deducting therefrom any tax benefit to the indemnified party and any insurance proceeds and any indemnity, contribution or other cash receipts paid to similar payment recoverable by the Indemnitee or indemnified party from any Affiliate thereof as a reimbursement third person with respect thereto and adding thereto any tax liability resulting from the indemnity payment. A tax benefit or liability will be considered to such Losses (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received be recognized by the Indemnitee or such Affiliate from an unrelated indemnified party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation or knowledge by a party of a breach of a representation or warranty of another party hereto shall affect the representations and warranties of the breaching party or the recourse available to such first party under any provision of this Agreement (including this ARTICLE VIII) with respect thereto. For all for purposes of this ARTICLE VIII including for purposes determining whether there has been a breach giving rise to section in the indemnification claim year in which the indemnity payment occurs, and the amount of Lossesthe tax benefit or liability shall be determined by assuming that the indemnified party is in the maximum applicable statutory tax bracket after any deductions or any allowances reportable with respect to a payment hereunder, all of and assuming that the representations, warranties and covenants indemnification payment is treated for tax purposes as an adjustment to the Purchase Price. (c) Except as set forth in this Agreement, neither party is making any representation, warranty, covenant or agreement with respect to the matters contained herein. Each of the Shareholder and Purchaser hereby acknowledges and agrees that its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement following the Closing shall be pursuant to the indemnification provisions set forth in this Article. Neither the Shareholder nor Purchaser shall have any liability to the other under this Article VI for consequential damages. Each of the Shareholder and Purchaser shall take, and shall cause to be taken, all reasonable steps to mitigate any losses for which it might be entitled to indemnification under this Article upon and after becoming aware of any event that could reasonably expect to give rise to such losses. 790603v7 (including d) Neither the schedulesShareholder nor Purchaser shall be entitled to indemnification under this Agreement with respect to the breach of any representation or warranty, exhibits or the failure to comply with a covenant or agreement to be performed prior to Closing if, on or prior to the Closing Date, an executive officer of the Shareholder (if it is the indemnified party) existing as of the Closing Date, or any of Charles Hubbs, John Sopcisak or Thomas Kennelly (if Purchaser or xxx xxxxxxxxxs ix xxx xxxxxxxfied xxxxx) xxx xxxual knowledge of the existence of such breach or failure. For purposes of this subsection (d), the term "actual knowledge" shall mean the actual awareness of a person and annexes hereto) that are qualified by materiality, Material Adverse Effect or words of similar import or effect a person will be deemed to have been made without any such qualification. In any claim knowledge of information communicated by or on behalf of either party to this Agreement to the other subsequent to April 1, 1998 in connection with the proposed sale of the Company (but not necessarily due to incidental knowledge acquired by a person in a capacity other than as a party prospectively involved in a transaction for indemnification under this Agreement, no Person shall be required to indemnify any Person for punitive damages or special damages, unless such punitive damages, or special damages are actually awarded to a third partythe sale of the Company).

General Indemnification Provisions. The amount of any Losses suffered or incurred by any Indemnitee shall be reduced by the amount of any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation or knowledge by a party of a breach of a representation or warranty of another party hereto shall affect the representations and warranties of the breaching party or the recourse available to such first party under any provision of this Agreement (including this ARTICLE VIIIVII) with respect thereto. For all purposes of this ARTICLE VIII VII including for purposes determining whether there has been a breach giving rise to the indemnification claim and the amount of Losses, all of the representations, warranties and covenants set forth in this Agreement (including the schedules, exhibits and annexes hereto) that are qualified by materiality, Material Adverse Effect or words of similar import or effect will be deemed to have been made without any such qualification. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Purchase Price for all Tax purposes, and no party may take a position inconsistent with such characterization. In any claim for indemnification under this Agreement, no Person shall be required to indemnify any Person for punitive damages or special damages, unless such punitive damages, or special damages are actually awarded to a third party.

General Indemnification Provisions. The amount of any Losses suffered or incurred by any Indemnitee shall be reduced by the amount of any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or its Representatives, on the one hand, or Seller, on the other hand, or knowledge by a party Buyer or its Representatives, on the one hand, or Seller or its Representatives, on the other hand, of a breach of a representation or warranty of another party hereto the other set of parties shall affect the such other set of parties’ representations and warranties of the breaching party or the recourse available to such first party or any other Indemnitee of such first party under any provision of this Agreement (including this ARTICLE VIIIVI) with respect thereto. For all Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this ARTICLE VIII including for purposes determining whether there has been a breach giving rise to the indemnification claim and VI, the amount of Lossesany Loss arising from the breach of any representation, all of the representationswarranty, warranties and covenants set forth covenant, obligation or agreement contained in this Agreement (including shall be the schedules, exhibits entire amount of any Loss actually incurred by the respective Indemnitee as a result of such breach and annexes hereto) not just that are qualified by portion of the Loss that exceeds the relevant level of materiality, Material Adverse Effect if any. Seller will not have any right to seek contribution from the Company or words Buyer with respect to all or any part of similar import or effect will be deemed to have been made without any such qualification. In any claim for Seller’s indemnification obligations under this Agreement, no Person shall ARTICLE VI. The Buyer Indemnified Parties will not be required to indemnify make any Person claim against the Company in respect of any representation, warranty, covenant or any other obligation of the Company to Buyer hereunder or under any Ancillary Document to which the Company is a party, and may solely seek action against Seller. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Stock Consideration for punitive damages or special damagesall Tax purposes, unless and no party may take any position inconsistent with such punitive damages, or special damages are actually awarded to a third partycharacterization.

General Indemnification Provisions. The amount of any Losses suffered or incurred by any Indemnitee shall be reduced by the amount of any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment. No investigation by Buyer or its Representatives, on the one hand, or the Seller Parties or their Representatives, on the other hand, or knowledge by a party Buyer or its Representatives, on the one hand, or the Seller Parties or their Representatives, on the other hand, of a breach of a representation or warranty of another party hereto the other set of parties shall affect the such other set of parties' representations and warranties of the breaching party or the recourse available to such first party or any other Indemnitee of such first party under any provision of this Agreement (including this ARTICLE VIII) VI with respect thereto. For all Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this ARTICLE VIII including for purposes determining whether there has been a breach giving rise to the indemnification claim and VI, the amount of Lossesany Loss arising from the breach of any representation, all of the representationswarranty, warranties and covenants set forth covenant, obligation or agreement contained in this Agreement (including shall be the schedules, exhibits entire amount of any Loss actually incurred by the respective Indemnitee as a result of such breach and annexes hereto) not just that are qualified by portion of the Loss that exceeds the relevant level of materiality, Material Adverse Effect if any. No Seller will have any right to seek contribution from the Company or words Buyer with respect to all or any part of similar import or effect will be deemed to have been made without any such qualification. In any claim for Seller's indemnification obligations under this Agreement, no Person shall ARTICLE VI. The Buyer Indemnified Parties will not be required to indemnify make any Person claim against the Company in respect of any representation, warranty, covenant or any other obligation of the Company to Buyer hereunder or under any Ancillary Document to which the Company is a party, and may solely seek action against Sellers. Unless otherwise required by applicable Law, all indemnification payments will constitute adjustments to the Purchase Consideration for punitive damages or special damagesall Tax purposes, unless and no party may take any position inconsistent with such punitive damages, or special damages are actually awarded to a third partycharacterization.