Common use of Indemnification by Fund Clause in Contracts

Indemnification by Fund. FUND agrees to indemnify and hold harmless LIFE COMPANY and each of its directors, officers, employees and agents and each person, if any, who controls LIFE COMPANY within the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified Parties" for the purposes of this Article VII) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of FUND which consent shall not be unreasonably withheld) 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 sale or acquisition of FUND's shares or the Variable Contracts and: (a) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the registration statement or prospectus or sales literature of FUND (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, provided that this agreement to indemnify shall not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to FUND by or on behalf of LIFE COMPANY for use in the registration statement or prospectus for FUND or for use in sales literature (or any amendment or supplement) or otherwise for use in connection with the sale of the Variable Contracts or FUND shares; or (b) arise out of or as a result of statements or representations (other than statements or representations contained in the registration statement, prospectus or sales literature for the Variable Contracts not supplied by FUND or by persons under its control) or wrongful conduct of FUND or persons under its control, with respect to the sale or distribution of the Variable Contracts or FUND shares; or (c) arise out of any untrue statement or alleged untrue statement of a material fact contained in a registration statement, prospectus, or sales literature covering the Variable Contracts, or any amendment thereof or supplement thereto or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to LIFE COMPANY for inclusion therein by or on behalf of FUND; or (d) arise as a result of (i) a failure by FUND to provide substantially the services and furnish the materials under the terms of this Agreement; or (ii) a failure by any Portfolio invested in by the Separate Account to comply with the diversification requirements of Section 817(h) of the Code; or (iii) a failure by any Portfolio invested in by the Separate Account to qualify as a "regulated investment company" under Subchapter M of the Code; or (e) arise out of or result from any material breach of any representation and/or warranty made by FUND in this Agreement or arise out of or result from any other material breach of this Agreement by FUND.

Indemnification by Fund. FUND agrees to indemnify and hold harmless LIFE the COMPANY and each of its directors, officers, employees employees, and agents and each person, if any, who controls LIFE the COMPANY within the meaning of Section 15 of the 1933 `33 Act (collectively, the "Indemnified Parties" for the purposes of this Article VII) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of FUND ADVISER which consent shall not be unreasonably withheld) or litigation (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, or 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 sale or acquisition of FUND's shares or the Variable Contracts and: (a) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the registration statement or prospectus or sales literature of FUND (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, provided that this agreement to indemnify shall not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to FUND by or on behalf of LIFE the COMPANY for use in the registration statement or prospectus for FUND or for use in sales literature (or any amendment or supplement) or otherwise for use in connection with the sale of the Variable Contracts or FUND shares; or (b) arise out of or as a result of statements or representations (other than statements or representations contained in the registration statement, prospectus or sales literature for the Variable Contracts not supplied by FUND or by persons under its control) or wrongful conduct of FUND or persons under its their control, with respect to the sale or distribution of the Variable Contracts or FUND shares; or (c) arise out of any untrue statement or alleged untrue statement of a material fact contained in a registration statement, prospectus, statement or sales literature prospectus covering the Variable Contracts, or any amendment thereof or supplement thereto or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to LIFE the COMPANY for inclusion therein by or on behalf of FUND; or (d) arise as a result of (i) a failure by FUND to provide substantially the services and furnish the materials under the terms of this Agreement; or (ii) a failure by any Portfolio a Portfolio(s) invested in by the Separate Account to comply with the diversification requirements of Section 817(h) of the Code; or (iii) a failure by any Portfolio a Portfolio(s) invested in by the Separate Account to qualify as a "regulated investment company" under Subchapter M of the Code; or (e) arise out of or result from any material breach of any representation and/or warranty made by FUND in this Agreement or arise out of or result from any other material breach of this Agreement by FUND.

Indemnification by Fund. FUND agrees to indemnify and hold harmless LIFE COMPANY the COMPANY, the principal underwriter (“Underwriter”) in respect of the Variable Contracts issued by the COMPANY, and each of its their respective directors, officers, employees employees, and agents and each person, if any, who controls LIFE the COMPANY or Underwriter within the meaning of Section 15 of the 1933 ‘33 Act (each, a “COMPANY Indemnified Party”, and collectively, the "COMPANY Indemnified Parties" ” for the purposes of this Article VII) against any and all losses, costs, claims, damages, liabilities (including amounts paid in settlement with the written consent of FUND FUND, which consent shall not be unreasonably withheld) or litigation and expenses (including legal and other expenses) (collectively “FUND Indemnification Costs”) to which the COMPANY Indemnified Parties may become subject under any statute, or regulation, at common law or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof) or settlements FUND Indemnification Costs are related to the sale sale, distribution or acquisition of FUND's FUND shares or the Variable Contracts and: (a) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the registration statement or prospectus or sales literature of a FUND (or any amendment or supplement to any of the foregoing)Document, or arise out of or are based upon the omission or the alleged omission to state therein in any FUND Document a material fact required to be stated therein or necessary to make the statements therein not misleading, provided that this agreement to indemnify shall not apply as to any COMPANY Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to FUND by or on behalf of LIFE a COMPANY Indemnified Party for use in the registration statement or prospectus for such FUND or for use in sales literature (or any amendment or supplement) Documents or otherwise for use in connection with the sale of the Variable Contracts or FUND shares; or (b) arise out of or as a result of statements or representations (other than statements or representations contained in the registration statement, prospectus or sales literature for the Variable Contracts not supplied by FUND or by persons under its control) or wrongful conduct of FUND or persons under its control, with respect to the sale or distribution of the Variable Contracts or FUND shares; or (cb) arise out of any untrue statement or alleged untrue statement of a material fact contained in a registration statementany COMPANY Document, prospectus, or sales literature covering the Variable Contracts, or any amendment thereof or supplement thereto or the omission or alleged omission to state therein in any COMPANY Document a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading , if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to LIFE the COMPANY for inclusion therein by or on behalf of FUND; or (c) arise out of or as a result of statements or representations (other than statements or representations contained in any COMPANY Document not supplied by FUND, persons controlling FUND, or persons under FUND’s control) or wrongful conduct of FUND, persons controlling FUND, or persons under FUND’s control, with respect to the sale or distribution of the Variable Contracts or FUND shares; or (d) arise as a result of (i) a failure by FUND to provide substantially the services and furnish the materials under the terms of this Agreement; or (ii) a , including, without limitation, any failure by any Portfolio invested in by the Separate Account FUND, persons controlling FUND, or persons under FUND’s control, as applicable, to comply with inform the diversification requirements of Section 817(h) COMPANY of the Code; or (iii) a failure by any Portfolio invested in by the Separate Account to qualify as a "regulated investment company" under Subchapter M correct net asset values per share of the Codeselected Portfolio(s) on a timely basis sufficient to ensure the timely execution of all purchase and redemption orders at the correct net asset value per share; or (e) arise out of or result from any material breach of any representation and/or warranty made by FUND in this Agreement or arise out of or result from any other material breach of this Agreement by FUND.

Indemnification by Fund. FUND agrees to indemnify and hold harmless LIFE the COMPANY and each of its directors, officers, employees employees, and agents and each person, person if any, who controls LIFE the COMPANY within the meaning of Section 15 of the 1933 '33 Act (collectively, the "Indemnified Parties" for the purposes of this Article VII) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of FUND which consent shall not be unreasonably withheld) or litigation (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, or 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 sale or acquisition of FUND's shares or the Variable Contracts and: (a) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the registration statement or prospectus or sales literature Registration Statement of FUND (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, provided that this agreement to indemnify shall not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to FUND by or on behalf of LIFE the COMPANY for use in the registration statement or prospectus Registration Statement for FUND or for use in sales literature (or any amendment or supplement) or otherwise for use in connection with the sale of the Variable Contracts or FUND shares; or (b) arise out of or as a result of statements or representations (other than statements or representations contained in the registration statement, prospectus or sales literature for the Variable Contracts not supplied by FUND or by persons under its control) or wrongful conduct of FUND or persons under its control, with respect to the sale or distribution of the Variable Contracts or FUND shares; or (c) arise out of any untrue statement or alleged untrue statement of a material fact contained in a registration statement, prospectus, statement or sales literature prospectus covering the Variable Contracts, or any amendment thereof or supplement thereto or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission or such alleged statement or of omission was made in reliance upon and in conformity with the information furnished to LIFE the COMPANY for inclusion therein by or on behalf of FUND; or (d) arise as a result of (i) a failure by FUND to provide substantially the services and furnish the materials under the terms of this Agreement; or (ii) a failure by any Portfolio a Portfolio(s) invested in by the Separate Account to comply with the diversification requirements of Section 817(h) of the Code; or (iii) a failure by any Portfolio a Portfolio(s) invested in by the Separate Account to qualify as a "regulated investment company" under Subchapter M of the Code; or (e) arise out of or result from any material breach of any representation and/or warranty made by FUND in this Agreement or arise out of or result from any other material breach of this Agreement by FUND.

Indemnification by Fund. FUND agrees to The Fund shall indemnify and hold harmless LIFE COMPANY the Custodian, any Sub-Custodian and each of its directorsany nominee thereof (each, officers, employees an “Indemnified Party” and agents and each person, if any, who controls LIFE COMPANY within the meaning of Section 15 of the 1933 Act (collectively, the "“Indemnified Parties" for the purposes of this Article VII”) from and against any and all claims, demands, losses, claims, damages, reasonable expenses and liabilities of any and every nature (including amounts paid reasonable attorneys’ fees) that an Indemnified Party may sustain or incur or that may be asserted against an Indemnified Party by any person arising directly or indirectly (i) from the fact that Securities are registered in settlement with the written consent name of FUND which consent shall not any such nominee, (ii) from any action taken or omitted to be unreasonably withheld) taken by the Custodian 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 sale or acquisition of FUND's shares or the Variable Contracts and: Sub-Custodian (a) arise out at the request or direction of or are based upon any untrue statement or alleged untrue statement of any material fact contained in reliance on the registration statement or prospectus or sales literature of FUND (or any amendment or supplement to any advice of the foregoing)Fund, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, provided that this agreement to indemnify shall not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to FUND by or on behalf of LIFE COMPANY for use in the registration statement or prospectus for FUND or for use in sales literature (or any amendment or supplement) or otherwise for use in connection with the sale of the Variable Contracts or FUND shares; or (b) arise out upon Written Instructions, (iii) from any inability of or failure of the Fund to vote or otherwise execute or respond to any proxies or other notices related to Securities held by the Custodian or a Sub-Custodian for the benefit of the Fund (provided that the Fund does not waive any claims that it or its affiliates may have due to the failure of the Custodian to promptly forward to the Fund proxies, proxy solicitation materials or notices received by the Custodian with respect to the Securities held by the Custodian or a Sub-Custodian or as a result of statements the Custodian revoking or representations (seeking to revoke the proxy granted by Section 3.13) , or from any claims that any voting of such Securities or response to such proxies or other than statements notices was improper or representations contained in the registration statementviolated any law, prospectus rule, regulation, order or sales literature for the Variable Contracts not supplied by FUND or by persons under its control) or wrongful conduct of FUND or persons under its control, with respect agreement applicable to the sale Fund or distribution an Indemnified Party or (iv) from the performance of its obligations under this Agreement or any sub-custody agreement, provided that neither the Variable Contracts Custodian nor any such Sub-Custodian shall be indemnified and held harmless from and against any such claim, demand, loss, expense or FUND shares; or (c) arise liability arising out of any untrue statement or alleged untrue statement of a material fact contained in a registration statement, prospectus, relating to its refusal or sales literature covering the Variable Contracts, or any amendment thereof or supplement thereto or the omission or alleged omission failure to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity comply with information furnished to LIFE COMPANY for inclusion therein by or on behalf of FUND; or (d) arise as a result of (i) a failure by FUND to provide substantially the services and furnish the materials under the terms of this Agreement (or any sub-custody agreement), or from its bad faith, negligence or willful misconduct in the performance of its duties under this Agreement (or any sub-custody agreement). This indemnity shall be a continuing obligation of the Fund, its successors and assigns, notwithstanding the termination of this Agreement; or provided that notice of any claims made hereunder must be made within three (ii3) a failure by any Portfolio invested in by the Separate Account to comply with the diversification requirements of Section 817(h) years of the Code; or termination of this Agreement. However, if the Fund is liquidated, any notice of claims made hereunder must be made within one (iii1) a failure by any Portfolio invested in by the Separate Account to qualify as a "regulated investment company" under Subchapter M year of the Code; or (e) arise out liquidation of or result from any material breach of any representation and/or warranty made by FUND the Fund. As used in this Agreement or arise out of or result from any other material breach of this Agreement by FUNDparagraph, the terms “Custodian” and “Sub-Custodian” shall include their respective directors, officers and employees.

Indemnification by Fund. FUND agrees to indemnify and hold harmless LIFE the COMPANY and each of its directors, officers, employees employees, and agents and each person, if any, who controls LIFE the COMPANY within the meaning of Section 15 of the 1933 '33 Act (collectively, the "Indemnified Parties" for the purposes of this Article VII) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of FUND ADVISER which consent shall not be unreasonably withheld) or litigation (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, or 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 sale or acquisition of FUND's shares or the Variable Contracts and: (a) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the registration statement or prospectus or sales literature of FUND (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, provided that this agreement to indemnify shall not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to FUND by or on behalf of LIFE the COMPANY for use in the registration statement or prospectus for FUND or for use in sales literature (or any amendment or supplement) or otherwise for use in connection with the sale of the Variable Contracts or FUND shares; or (b) arise out of or as a result of statements or representations (other than statements or representations contained in the registration statement, prospectus or sales literature for the Variable Contracts not supplied by FUND or by persons under its control) or wrongful conduct of FUND or persons under its their control, with respect to the sale or distribution of the Variable Contracts or FUND shares; or (c) arise out of any untrue statement or alleged untrue statement of a material fact contained in a registration statement, prospectus, statement or sales literature prospectus covering the Variable Contracts, or any amendment thereof or supplement thereto or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to LIFE the COMPANY for inclusion therein by or on behalf of FUND; or (d) arise as a result of (i) a failure by FUND to provide substantially the services and furnish the materials under the terms of this Agreement; or (ii) a failure by any Portfolio a Portfolio(s) invested in by the Separate Account to comply with the diversification requirements of Section 817(h) of the Code; or (iii) a failure by any Portfolio a Portfolio(s) invested in by the Separate Account to qualify as a "regulated investment company" under Subchapter M of the Code; or (e) arise out of or result from any material breach of any representation and/or warranty made by FUND in this Agreement or arise out of or result from any other material breach of this Agreement by FUND.

Indemnification by Fund. FUND agrees to indemnify and hold harmless LIFE COMPANY the COMPANY, the principal underwriter ("Underwriter") in respect of the Variable Contracts issued by the COMPANY, and each of its their respective directors, officers, employees employees, and agents and each person, if any, who controls LIFE the COMPANY or Underwriter within the meaning of Section 15 of the 1933 `33 Act (each, a "COMPANY Indemnified Party", and collectively, the "COMPANY Indemnified Parties" for the purposes of this Article VII) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of FUND which consent shall not be unreasonably withheld) or litigation (including legal and other expenses) Indemnification Costs to which the COMPANY Indemnified Parties may become subject under any statute, or regulation, at common law or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof) or settlements Indemnification Costs are related to the sale sale, distribution or acquisition of FUND's FUND shares or the Variable Contracts and: (a) arise out of or are based upon on any untrue statement or alleged untrue statement of any material fact contained in the registration statement or prospectus or sales literature of FUND (or any amendment or supplement to any of the foregoing)a Fund Document, or arise out of or are based upon the omission or the alleged omission to state therein in any FUND Document a material fact required to be stated therein or necessary to make the statements therein not misleading, provided that this agreement to indemnify shall not apply as to any COMPANY Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to FUND by or on behalf of LIFE a COMPANY Indemnified Party for use in the registration statement or prospectus for such FUND or for use in sales literature (or any amendment or supplement) Documents or otherwise for use in connection with the sale or distribution of the Variable Contracts or FUND shares; or (b) arise out of or as a result of statements or representations (other than statements or representations contained in the registration statement, prospectus or sales literature for the Variable Contracts not supplied by FUND or by persons under its control) or wrongful conduct of FUND or persons under its control, with respect to the sale or distribution of the Variable Contracts or FUND shares; or (c) arise out of any untrue statement statements or alleged untrue statement of a material fact contained in a registration statementany COMPANY Document, prospectus, or sales literature covering the Variable Contracts, or any amendment thereof or supplement thereto or the omission or alleged omission to state therein in any COMPANY Document a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading , if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to LIFE the COMPANY for inclusion therein by or on behalf of FUND; or (c) arise out of or as a result of statements or representations (other than statements or representations contained in any COMPANY Document not supplied by FUND, persons controlling FUND, or persons under FUND's control) or wrongful conduct of FUND, persons controlling FUND, or persons under FUND's control, with respect to the sale or distribution of the Variable Contracts or FUND shares; or (d) arise as a result of (i) a failure by FUND to provide substantially the services and furnish the materials under the terms of this Agreement, including, without limitation, any failure by the FUND, persons controlling FUND, or persons under FUND's control, as applicable, to inform the COMPANY of the correct net asset values per share of the selected Portfolio(s) on a timely basis sufficient to ensure the timely execution of all purchase and redemption orders at the correct net asset value per share; or (ii) a failure by any a Portfolio invested in by the Separate Account to comply with the diversification requirements of Section 817(h817 (h) of the Code; or (iii) a failure by any a Portfolio invested in by the Separate Account to qualify as a "regulated investment company" under Subchapter M of the Code; or (e) arise out of or result from any material breach of any representation and/or warranty made by FUND in this Agreement or arise out of or result from any other material breach of this Agreement by FUND.

Indemnification by Fund. FUND agrees to indemnify and hold harmless LIFE COMPANY the COMPANY, the principal underwriter ("Underwriter") in respect of the Variable Contracts issued by the COMPANY, and each of its their respective directors, officers, employees employees, and agents and each person, if any, who controls LIFE the COMPANY or Underwriter within the meaning of Section 15 of the 1933 `33 Act (each , a "COMPANY Indemnified Party", and collectively, the "COMPANY Indemnified Parties" for the purposes of this Article VII) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of FUND which consent shall not be unreasonably withheld) or litigation (including legal and other expenses) Indemnification Costs to which the COMPANY Indemnified Parties may become subject under any statute, or regulation, at common law or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof) or settlements Indemnification Costs are related to the sale sale, distribution or acquisition of FUND's FUND shares or the Variable Contracts and: (a) arise out of or are based upon on any untrue statement or alleged untrue statement of any material fact contained in the registration statement or prospectus or sales literature of FUND (or any amendment or supplement to any of the foregoing)a Fund Document, or arise out of or are based upon the omission or the alleged omission to state therein in any FUND Document a material fact required to be stated therein or necessary to make the statements therein not misleading, provided that this agreement to indemnify shall not apply as to any COMPANY Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to FUND by or on behalf of LIFE a COMPANY Indemnified Party for use in the registration statement or prospectus for such FUND or for use in sales literature (or any amendment or supplement) Documents or otherwise for use in connection with the sale or distribution of the Variable Contracts or FUND shares; or (b) arise out of or as a result of statements or representations (other than statements or representations contained in the registration statement, prospectus or sales literature for the Variable Contracts not supplied by FUND or by persons under its control) or wrongful conduct of FUND or persons under its control, with respect to the sale or distribution of the Variable Contracts or FUND shares; or (c) arise out of any untrue statement statements or alleged untrue statement of a material fact contained in a registration statementany COMPANY Document, prospectus, or sales literature covering the Variable Contracts, or any amendment thereof or supplement thereto or the omission or alleged omission to state therein in any COMPANY Document a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading , if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to LIFE the COMPANY for inclusion therein by or on behalf of FUND; or (c) arise out of or as a result of statements or representations (other than statements or representations contained in any COMPANY Document not supplied by FUND, persons controlling FUND, or persons under FUND's control) or wrongful conduct of FUND, persons controlling FUND, or persons under FUND's control, with respect to the sale or distribution of the Variable Contracts or FUND shares; or (d) arise as a result of (i) a failure by FUND to provide substantially the services and furnish the materials under the terms of this Agreement, including, without limitation, any failure by the FUND, persons controlling FUND, or persons under FUND's control, as applicable, to inform the COMPANY of the correct net asset values per share of the selected Portfolio(s) on a timely basis sufficient to ensure the timely execution of all purchase and redemption orders at the correct net asset value per share; or (ii) a failure by any a Portfolio invested in by the Separate Account to comply with the diversification requirements of Section 817(h817 (h) of the Code; or (iii) a failure by any a Portfolio invested in by the Separate Account to qualify as a "regulated investment company" under Subchapter M of the Code; or (e) arise out of or result from any material breach of any representation and/or warranty made by FUND in this Agreement or arise out of or result from any other material breach of this Agreement by FUND.

Indemnification by Fund. FUND agrees to indemnify and hold harmless LIFE COMPANY and each of its directors, officers, employees employees, and agents and each person, if any, who controls LIFE COMPANY within the meaning of Section 15 of the 1933 '33 Act (collectively, the "Indemnified Parties" for the purposes of this Article VII") against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of FUND which consent shall not be unreasonably withheld) or litigation (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, or 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 sale or acquisition of FUND's shares or the Variable Contracts and: (a) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the registration statement or prospectus or sales literature of FUND (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, provided that this agreement to indemnify shall not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to ADVISER or FUND by or on behalf of LIFE COMPANY for use in the registration statement or prospectus for FUND or for use in sales literature (or any amendment or supplement) or otherwise for use in connection with the sale of the Variable Contracts or FUND shares; or (b) arise out of or as a result of statements or representations (other than statements or representations contained in the registration statementstate ment, prospectus or sales literature for the Variable Contracts not supplied by ADVISER or FUND or by persons under its control) or wrongful conduct of FUND or persons under its control, with respect to the sale or distribution of the Variable Contracts or FUND shares; or (c) arise out of any untrue statement or alleged untrue statement of a material fact contained in a registration statement, prospectus, or sales literature covering the Variable Contracts, or any amendment thereof or supplement thereto or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to LIFE COMPANY for inclusion therein by or on behalf of FUND; or (d) arise as a result of (i) a failure by FUND to provide substantially the services and furnish the materials under the terms of this Agreement; or (ii) a failure by any Portfolio a Portfolio(s) invested in by the Separate Account to comply with the diversification requirements of Section 817(h) of the Code; or (iii) a failure by any Portfolio a Portfolio(s) invested in by the Separate Account to qualify as a "regulated investment company" under Subchapter M of the Code; or (e) arise out of or result from any material breach of any representation and/or warranty made by FUND in this Agreement or arise out of or result from any other material breach of this Agreement by FUND.