Common use of Indemnification by Supplier Clause in Contracts

Indemnification by Supplier. (a) Subject to the terms and conditions of this Supply Agreement, Supplier will jointly and severally defend, indemnify and hold harmless Buyer and its affiliates and each of their respective officers, directors, employees, shareholders, agents and representatives, and their successors and assigns (collectively the "Buyer Indemnities") from and against all claims, losses, liabilities, damages, costs and expenses (including without limitation reasonable fees and expenses of attorneys incurred in investigation or defense of any Action) (collectively "Claims") arising out of or related to: (i) Excluded Liabilities as set forth in the Sale Agreement, (ii) any breach of any covenant or agreement of Supplier contained in this Supply Agreement, (iii) any negligence, gross negligence, or willful or intentional misconduct by Supplier or any of its personnel; and (iv) any breach of any representation or warranty of Supplier contained in this Supply Agreement; (b) Promptly after receipt by Buyer of notice of any third-party Action in respect of which indemnity may be sought against Supplier hereunder (for purposes of this Section 16.07, a "Buyer's Assertion"), Buyer will notify Supplier in writing of the Buyer's Assertion, but the failure to so notify Supplier will not relieve Supplier of any liability it may have to Buyer, except to the extent Supplier has suffered actual prejudice thereby. Supplier will be entitled to participate in and, to the extent Supplier elects by written notice to Buyer within thirty (30) days after receipt by Supplier of notice of such Buyer's Assertion, to assume the defense of such Buyer's Assertion, at Supplier's own expense, with counsel chosen by them which will be reasonably satisfactory to Buyer. With respect to any such Buyer's Assertion, Buyer will promptly provide Supplier with: (i) notice and copies of any documents served upon Buyer; and (ii) all reasonable cooperation which Supplier deems necessary to defend such Buyer's Assertion, including, without limitation, providing Supplier and its outside attorneys access to any potentially relevant documents, information, or individuals within the control of Buyer, other than any privileged documents. If business information of Buyer other than that pertaining to the Business is contained in such documents or information, Supplier and Buyer will enter into appropriate secrecy commitments to protect such documents or information. Notwithstanding that Supplier may have elected by written notice to assume the defense of any Buyer's Assertion, Buyer will have the right to participate in the investigation and defense thereof, with separate counsel chosen by Buyer, but in such event the fees and expenses of Buyer (above those which would otherwise have been incurred) and such separate counsel will be paid by Buyer. (c) Notwithstanding anything in this Section 16.07 to the contrary: (i) Supplier will have no obligation with respect to any Buyer's Assertion if, in connection therewith, Buyer, without the written consent of Supplier, which consent will not be unreasonably withheld, settles or compromises any Action or consents to the entry of any judgment; and (ii) Supplier will not without the written consent of Buyer with respect to any Buyer Assertion: (A) settle or compromise any Action or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to Buyer of a duly executed written release of Buyer from all liability in respect of such Action, which release will be reasonably satisfactory in form and substance to counsel for Buyer, or (B) settle or compromise any Action in any manner that, in the reasonable judgment of Buyer or its counsel, will adversely affect Buyer other than as a result of money damages or other money payments. (d) Upon the payment of any settlement or judgment pursuant to this Section 16.07 with respect to any Buyer's Assertion, Supplier will be subrogated to all rights and remedies of Buyer against any third party in respect of such Buyer's Assertion to the extent of the amount so paid by Supplier. (e) The indemnity provided for by this Section 16.07 will be Buyer's exclusive source of recovery against Supplier with respect to matters covered hereby.

Indemnification by Supplier. Supplier shall indemnify, defend (aat Supplier’s expense) Subject to the terms and conditions of this Supply Agreement, Supplier will jointly and severally defend, indemnify and hold harmless Buyer Gogo, its Affiliates and its affiliates and each of their respective officers, directors, employees, shareholders, agents and representatives, and their successors and assigns (collectively the "Buyer Indemnities") employees harmless from and against all any court costs, reasonable attorneys’ fees and expenses, settlements and settlement expenses, third party liabilities, claims, lossespenalties, liabilitiesfines, damages, reasonable costs and expenses (including without limitation reasonable fees and expenses of attorneys incurred in investigation or defense of any Action) (collectively "Claims") arising out of or related toresulting from: (a) any bodily injury or real or tangible personal property damage arising out of Supplier’s negligence or willful misconduct; and (b) any third-party claim that such third party’s rights in Intellectual Property are infringed, misappropriated or violated by any Product (including any Supplier tools incorporated into a Product) except to the extent such infringement, misappropriation, or violation arises from the use of such Product in combination with any other product not provided or approved by Airspan or by any modification to the Product(s) made by Gogo. To the extent permissible, Supplier shall pass through to Gogo any indemnification provided to Supplier by third-party suppliers for such third-party services and third-party products, along with any warranties (likewise, to the extent permissible), further to its obligation under the Exhibit C Product Support Assurance Agreement of this Agreement. If any of the Products or any portion thereof is held, or in Supplier’s reasonable opinion is likely to be held in any such suit to constitute an infringement, misappropriation or violation of the rights of a third party, Supplier shall promptly, at its expense and option, either: (i) Excluded Liabilities as set forth in secure for Gogo the Sale Agreement, right to continue the use of such Product; or (ii) any breach of any covenant or agreement of Supplier contained in this Supply Agreement, (iii) any negligence, gross negligence, or willful or intentional misconduct by Supplier or any of its personnel; and (iv) any breach of any representation or warranty of Supplier contained in this Supply Agreement; (b) Promptly after receipt by Buyer of notice of any third-party Action in respect of which indemnity may be sought against Supplier hereunder (for purposes of this Section 16.07, replace such Product with a "Buyer's Assertion"), Buyer will notify Supplier in writing of the Buyer's Assertion, but the failure to so notify Supplier will substantially equivalent item that is not relieve Supplier of any liability it may have to Buyer, except to the extent Supplier has suffered actual prejudice thereby. Supplier will be entitled to participate in and, to the extent Supplier elects by written notice to Buyer within thirty (30) days after receipt by Supplier of notice of such Buyer's Assertion, to assume the defense of such Buyer's Assertion, at Supplier's own expense, with counsel chosen by them which will be reasonably satisfactory to Buyer. With respect subject to any such Buyer's Assertionclaim, Buyer will promptly provide or modify such Product so that it becomes no longer subject to any such claim; provided, however, that after any such replacement or modification, the Product must continue to substantially conform to the Specifications, and further provided, that any such modified or replaced Product shall be subject to all Supplier with: warranties contained herein. If Supplier is unable to procure the right to continued use of such Product, or to modify or replace such Product, as provided in clauses (i) notice and copies of any documents served upon Buyer; and (ii) all reasonable cooperation which Supplier deems necessary of the immediately preceding sentence, then Gogo shall return such Product to defend such Buyer's Assertion, including, without limitation, providing Supplier and its outside attorneys access to any potentially relevant documents, information, or individuals within the control of Buyer, other than any privileged documents. If business information of Buyer other than that pertaining to the Business is contained in such documents or information, Supplier and Buyer will enter into appropriate secrecy commitments to protect such documents or information. Notwithstanding that Supplier may have elected by written notice to assume the defense of any Buyer's Assertion, Buyer will have the right to participate in the investigation and defense thereof, with separate counsel chosen by Buyer, but in such event the fees and expenses of Buyer (above those which would otherwise have been incurred) and such separate counsel will be paid by Buyer. (c) Notwithstanding anything in this Section 16.07 to the contrary: (i) Supplier will have no obligation with respect to any Buyer's Assertion if, in connection therewith, Buyer, without the written consent of Supplier, which consent will not be unreasonably withheld, settles or compromises any Action or consents and Supplier shall refund to the entry of any judgment; and (ii) Supplier will not without the written consent of Buyer with respect to any Buyer Assertion: (A) settle or compromise any Action or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to Buyer of a duly executed written release of Buyer from all liability in respect of such Action, which release will be reasonably satisfactory in form and substance to counsel for Buyer, or (B) settle or compromise any Action in any manner that, in the reasonable judgment of Buyer or its counsel, will adversely affect Buyer other than as a result of money damages or other money payments. (d) Upon the payment of any settlement or judgment pursuant to this Section 16.07 with respect to any Buyer's Assertion, Supplier will be subrogated to all rights and remedies of Buyer against any third party in respect of such Buyer's Assertion to the extent of Gogo the amount so paid by Supplierto Supplier for such Products. (e) The indemnity provided for by this Section 16.07 will be Buyer's exclusive source of recovery against Supplier with respect to matters covered hereby.

Indemnification by Supplier. (a) Subject to the terms and conditions of this Supply Agreement, Supplier will jointly and severally defend, indemnify and hold harmless Buyer and its affiliates and each of their respective officers, directors, employees, shareholders, agents and representatives, and their successors and assigns (collectively the "Buyer Indemnities") from and against all claims, losses, liabilities, damages, costs and expenses (including without limitation reasonable fees and expenses of attorneys incurred in investigation or defense of any Action) (collectively "Claims") arising out of or related to: (iI) Excluded Liabilities as set forth in the Sale Agreement, (iiIi) any breach of any covenant or agreement of Supplier contained in this Supply Agreement, ; (iii) any negligence, gross negligence, or willful or intentional misconduct by Supplier or any of its personnel; and (iv) any breach of any representation or warranty of Supplier contained in this Supply Agreement; (b) Promptly after receipt by Buyer of notice of any third-party Action in respect of which indemnity may be sought against Supplier hereunder (for purposes of this Section 16.0716.01, a "Buyer's Assertion"), Buyer will notify Supplier in writing of the Buyer's Assertion, but the failure to so notify Supplier will not relieve Supplier of any liability it may have to Buyer, except to the extent Supplier has suffered Execution Copy Amended and Restated and Manufacturing Agreement actual prejudice thereby. Supplier will be entitled to participate in and, to the extent Supplier elects by written notice to Buyer within thirty (30) days after receipt by Supplier of notice of such Buyer's Assertion, to assume the defense of such Buyer's Assertion, at Supplier's own expense, with counsel chosen by them it which will be reasonably satisfactory to Buyer. With respect to any such Buyer's Assertion, Buyer will promptly provide Supplier with: (i) notice and copies of any documents served upon Buyer; and (ii) all reasonable cooperation which Supplier deems necessary to defend such Buyer's Assertion, including, without limitation, providing Supplier and its outside attorneys access to any potentially relevant documents, information, or individuals within the control of Buyer, other than any privileged documents. If business information of Buyer other than that pertaining to the Business is contained in such documents or information, Supplier and Buyer will enter into appropriate secrecy commitments to protect such documents or information. Notwithstanding that Supplier may have elected by written notice to assume the defense of any Buyer's Assertion, Buyer will have the right to participate in the investigation and defense thereof, with separate counsel chosen by Buyer, but in such event the fees and expenses of Buyer (above those which would otherwise have been incurred) and such separate counsel will be paid by Buyer. (c) Notwithstanding anything in this Section 16.07 16,07 to the contrary: (i) Supplier will have no obligation with respect to any Buyer's Assertion if, in connection therewith, Buyer, without the written consent of Supplier, which consent will not be unreasonably withheld, settles or compromises any Action or consents to the entry of any judgment; and (ii) Supplier will not without the written consent of Buyer with respect to any Buyer Buyers Assertion: (A) settle or compromise any Action or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to Buyer of a duly executed written release of Buyer from all liability in respect of such Action, which release will be reasonably satisfactory in form and substance to counsel for Buyer, or (B) settle or compromise any Action in any manner that, in the reasonable judgment of Buyer or its counsel, will adversely affect Buyer other than as a result of money damages or other money payments. (d) Upon the payment of any settlement or judgment pursuant to this Section 16.07 with respect to any Buyer's Assertion, Supplier will be subrogated to all rights and remedies of Buyer against any third party in respect of such Buyer's Assertion to the extent of the amount so paid by Supplier. (e) The indemnity provided for by this Section 16.07 will be Buyer's exclusive source of recovery against Supplier with respect to matters covered hereby.

Indemnification by Supplier. (a) Subject to the terms and conditions of this Supply AgreementSupplier shall indemnify, Supplier will jointly and severally defend, indemnify defend and hold harmless Buyer Advantica, its Affiliates, and its affiliates and each of their respective officers, directors, employees, shareholdersagents, agents and representatives, and their successors and assigns (collectively the "Buyer Indemnities") assigns, from and against all claimsLosses arising from, lossesin connection with or relating to, liabilities, damages, costs and expenses (including without limitation reasonable fees and expenses of attorneys incurred in investigation or defense third party allegations of any Actionof the following: (a) (collectively "Claims") arising out of or related to: (i) Excluded Liabilities as set forth in the Sale Agreement, (ii) Supplier's failure to perform any breach of any covenant or agreement of Supplier contained in this Supply Agreement, (iii) any negligence, gross negligence, or willful or intentional misconduct obligations required to be performed by Supplier or it under any of its personnel; and (iv) any breach of any representation the Third Party Contracts on or warranty of after the date Supplier contained becomes responsible for such obligations in this Supply accordance with the applicable Service Agreement; (b) Promptly after receipt by Buyer acts or omissions of notice of Supplier Personnel located in any third-party Action in respect of which indemnity may be sought against Supplier hereunder (for purposes of this Section 16.07, a "Buyer's Assertion"), Buyer will notify Supplier in writing of the Buyer's Assertion, but the failure to so notify Supplier will not relieve Supplier of any liability it may have to Buyer, except to the extent Supplier has suffered actual prejudice thereby. Supplier will be entitled to participate in and, to the extent Supplier elects by written notice to Buyer within thirty (30) days after receipt by Supplier of notice of such Buyer's Assertion, to assume the defense of such Buyer's Assertion, at Supplier's own expense, with counsel chosen by them which will be reasonably satisfactory to Buyer. With respect to any such Buyer's Assertion, Buyer will promptly provide Supplier with: (i) notice and copies of any documents served upon Buyer; and (ii) all reasonable cooperation which Supplier deems necessary to defend such Buyer's Assertion, including, without limitation, providing Supplier and its outside attorneys access to any potentially relevant documents, information, or individuals within the control of Buyer, other than any privileged documents. If business information of Buyer other than that pertaining to the Business is contained in such documents or information, Supplier and Buyer will enter into appropriate secrecy commitments to protect such documents or information. Notwithstanding that Supplier may have elected by written notice to assume the defense of any Buyer's Assertion, Buyer will have the right to participate in the investigation and defense thereof, with separate counsel chosen by Buyer, but in such event the fees and expenses of Buyer (above those which would otherwise have been incurred) and such separate counsel will be paid by Buyer.Advantica Facility; (c) Notwithstanding anything any claims arising out of or related to occurrences for which damages are recoverable under insurance policies Supplier is required to maintain pursuant to Article 12 (Insurance; Risk of Loss); (d) Supplier's breach of its obligations with respect to Advantica's Confidential Information; (e) any claims relating in any way to selection of the Transferred Employees or Supplier's offers of employment, and any claims by or on behalf of Transferred Employees that arise from or relate in any way to their employment with Supplier or to the termination of their employment with Supplier, including any claims by Transferred Employees against Advantica based on a theory of joint employer liability or similar theory; (f) any claims of Supplier's subcontractors; (g) the untruthfulness or inaccuracy of any representation or warranty made by Supplier in this Section 16.07 to the contrary: Master Agreement or in any Service Agreement; (h) any amounts, including without limitation, taxes, interest and penalties assessed against Advantica which are obligations of Supplier under this Master Agreement or any Service Agreement; (i) personal injuries, death or damage to tangible personal or real property of third parties including employees of Supplier, its contractors and subcontractors caused by the negligence or willful misconduct of Supplier; provided that Supplier will have no obligation with respect under this clause, to any Buyer's Assertion if, the extent the claim arises out of or in connection therewith, Buyer, without with the written consent negligence or willful misconduct of Supplier, which consent will not be unreasonably withheld, settles or compromises Advantica; (j) any Action or consents claims for a breach of software licenses related to the entry Services, committed by Advantica or any of its subcontractors or any judgment; employee of Advantica and its subcontractors that is not the result of Advantica failing to perform its obligations under this Master Agreement or any Service Agreement; (iik) Supplier will not without the written consent of Buyer with respect to any Buyer Assertion: (A) settle or compromise any Action or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to Buyer of a duly executed written release of Buyer from all liability in respect of such Action, which release will be reasonably satisfactory in form and substance to counsel for Buyer, or (B) settle or compromise any Action in any manner that, in the reasonable judgment of Buyer or its counsel, will adversely affect Buyer other than environmental claim arising as a result of money damages or other money payments. (d) Upon the payment of any settlement or judgment pursuant to this Section 16.07 Services with respect to any Buyer's Assertion, the Supplier will be subrogated to all rights and remedies of Buyer against any third party in respect of such Buyer's Assertion Environment or the Advantica corporate facilities or restaurant locations to the extent Supplier or its subcontractors has caused the environmental damage or violation of the amount so paid by Supplier.environmental laws or regulations from which the claim arises; (el) The indemnity any claims directly attributable to Supplier's decision to request that Advantica cancel, substitute, terminate, change, add or breach any Third Party Contract and Advantica's assent to and compliance with such decision and any Losses incurred by Advantica associated with such decision by Supplier and compliance by Advantica; and (m) any claims for penalties, interest and other charges imposed by a taxing authority (except the actual taxes payable by Advantica under the terms of this Master Agreement or any Service Agreement) arising out or resulting from Supplier issuing an incorrect invoice or other information provided to Advantica in writing regarding its charges to Advantica for the Services. In the event and to the extent that a claim is made against an indemnitee by an employee of Supplier, its contractors or subcontractors providing services, products and/or software hereunder, the Parties agree that Supplier shall indemnify and hold harmless the indemnitee to the same extent as if the claim was made by a non-employee of Supplier, its contractors or subcontractors. Supplier's indemnification hereunder shall be primary and immediate. Accordingly, in addition to other provisions herein, and in order to render the Parties' intent and this Section 16.07 will be Buyer's exclusive source indemnification agreement fully enforceable, Supplier, in an indemnification claim hereunder, expressly and without reservation waives any defense or immunity it may have under any applicable workers' compensation law(s) or any other statute or judicial decision disallowing or limiting such indemnification and consents to a cause of recovery against Supplier with respect action for indemnity. This waiver and consent to matters covered herebyindemnification is made irrespective of and specifically waiving any defense or immunity under any statute or judicial decision.

Indemnification by Supplier. (a) Subject Supplier hereby agrees, at its sole cost and expense, to defend, hold harmless and indemnify, to the terms and conditions of this Supply Agreementextent permitted by applicable Law, Supplier will jointly and severally defend(collectively, indemnify and hold harmless “Indemnify”) Buyer and its affiliates Affiliates and each of their respective officers, directors, employees, shareholders, agents officers and representatives, employees of such Persons and their the respective successors and assigns of any of the foregoing (collectively the "“Buyer Indemnities"Indemnitees”) from and against any and all claims, losses, liabilities, damages, penalties, fines, costs and actual expenses (including without limitation including, reasonable attorneys’ fees and other expenses of attorneys incurred in investigation or defense of any Actionlitigation) (collectively "Claims"collectively, “Liabilities”) resulting from suits, claims, actions and demands, in each case brought by a Third Party (each, a “Third-Party Claim”) against any Buyer Indemnitee and arising out of from or related tooccurring as a result of: (i) Excluded Liabilities as set forth in the Sale Agreement, (iia) any material breach of any covenant of Supplier’s obligations, representations, warranties or agreement of Supplier contained in covenants under this Supply Manufacturing Agreement, (iii) any negligence, gross negligence, ; or willful or intentional misconduct by Supplier or any of its personnel; and (iv) any breach of any representation or warranty of Supplier contained in this Supply Agreement; (b) Promptly after receipt by Buyer of notice of any third-party Action in respect of which indemnity may be sought against Supplier hereunder (for purposes of this Section 16.07, a "Buyer's Assertion"), Buyer will notify Supplier in writing of the Buyer's Assertion, but the failure to so notify Supplier will not relieve Supplier of any liability it may have to Buyer, except to the extent Supplier has suffered actual prejudice thereby. Supplier will be entitled to participate in and, to the extent Supplier elects by written notice to Buyer within thirty (30) days after receipt by Supplier of notice of such Buyer's Assertion, to assume the defense of such Buyer's Assertion, at Supplier's own expense, with counsel chosen by them which will be reasonably satisfactory to Buyer. With respect to any such Buyer's Assertion, Buyer will promptly provide Supplier with: (i) notice and copies of any documents served upon Buyer; and (ii) all reasonable cooperation which Supplier deems necessary to defend such Buyer's Assertion, including, without limitation, providing Supplier and its outside attorneys access to any potentially relevant documents, information, gross negligence or individuals within the control of Buyer, other than any privileged documents. If business information of Buyer other than that pertaining to the Business is contained in such documents or information, Supplier and Buyer will enter into appropriate secrecy commitments to protect such documents or information. Notwithstanding that Supplier may have elected by written notice to assume the defense of any Buyer's Assertion, Buyer will have the right to participate in the investigation and defense thereof, with separate counsel chosen by Buyer, but in such event the fees and expenses of Buyer (above those which would otherwise have been incurred) and such separate counsel will be paid by Buyer. (c) Notwithstanding anything in this Section 16.07 to the contrary: (i) Supplier will have no obligation with respect to any Buyer's Assertion if, in connection therewith, Buyer, without the written consent of Supplier, which consent will not be unreasonably withheld, settles or compromises any Action or consents to the entry of any judgment; and (ii) Supplier will not without the written consent of Buyer with respect to any Buyer Assertion: (A) settle or compromise any Action or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to Buyer willful misconduct of a duly executed written release of Supplier Indemnitee under this Manufacturing Agreement. Supplier’s obligation to Indemnify Buyer from all liability in respect of such Action, which release will be reasonably satisfactory in form and substance to counsel for Buyer, or (B) settle or compromise any Action in any manner that, in the reasonable judgment of Buyer or its counsel, will adversely affect Buyer other than as a result of money damages or other money payments. (d) Upon the payment of any settlement or judgment Indemnitees pursuant to this Section 16.07 with respect to any Buyer's Assertion, Supplier will be subrogated to all rights and remedies of Buyer against any third party in respect of such Buyer's Assertion 11.1.1 shall not apply to the extent that any such Liabilities are the result of a material breach by Buyer of its obligations, representations, warranties or covenants under this Manufacturing Agreement or any Buyer Indemnitee’s gross negligence or willful misconduct. Notwithstanding anything to the amount so paid by contrary in this Manufacturing Agreement, Supplier’s liability arising from this Manufacturing Agreement and the performance hereof shall not exceed [****] Dollars ($[****]) in the aggregate (the “Seller Cap”). Additionally, Supplier’s obligation to Indemnify Buyer Indemnitees shall include lost profits and out-of-pocket costs and expenses. The Seller Cap shall not, nor shall any other limitation set forth in this Manufacturing Agreement, apply to any indemnification obligations where a Third-Party Claim for bodily injury or death arises from the gross negligence or willful misconduct of Supplier. (e) The indemnity provided for by this Section 16.07 will be Buyer's exclusive source of recovery against Supplier with respect to matters covered hereby.

Indemnification by Supplier. 6 11.1.1. Supplier shall indemnify, defend (aat Supplier’s expense) Subject to the terms and conditions of this Supply Agreement, Supplier will jointly and severally defend, indemnify and hold harmless Buyer Gogo, its Affiliates and its affiliates and each of their respective officers, directors, employees, shareholders, agents and representatives, and their successors and assigns (collectively the "Buyer Indemnities") employees harmless from and against all claimsany court costs, losses, liabilities, damages, costs and expenses (including without limitation reasonable attorneys’ fees and expenses expenses, settlement expenses, court-awarded damages and reasonable costs of attorneys incurred in investigation or defense of any Action) (collectively "Claims") arising out of or related toresulting from: [***]. 11.1.2. If any of the Products or any portion thereof is held, or in Supplier’s reasonable opinion is likely to be held, in any such suit to constitute an infringement, misappropriation or violation of the rights of a third party, Supplier shall promptly, at its expense and option, either: (i) Excluded Liabilities as set forth in secure for Gogo the Sale Agreement, right to continue the use of such Product; or (ii) replace such Product with a substantially equivalent item that is not subject to any breach of any covenant or agreement of Supplier contained in this Supply Agreement, (iii) any negligence, gross negligencesuch claim, or willful modify such Product so that it becomes no longer subject to any such claim; provided, however, that after any such replacement or intentional misconduct by modification, the Product must continue to substantially conform to the Specifications, and further provided, that any such modified or replaced Product shall be subject to all Supplier warranties contained herein. If Supplier is unable to procure the right to continued use of such Product, or any of its personnel; to modify or replace such Product, as provided in clauses (i) and (ivii) any breach of any representation the immediately preceding sentence, then Gogo shall return such Product to Supplier, and Supplier shall refund to Gogo the amount paid to Supplier for such Products. In addition, if SOWs are specifically identified as phases of the same project in each of the applicable SOW, and Supplier fails to correct an infringement, misappropriation or warranty violation in one of the phases, Supplier contained in this Supply Agreement; shall refund to Gogo (bA) Promptly after receipt by Buyer all amounts paid to Supplier for the applicable Product, and (B) all amounts paid to Supplier for other Products that are part of notice the same project but are rendered to be of any third-party Action in respect of which indemnity may be sought against no reasonable utility to Gogo without the applicable Product. Supplier hereunder (for purposes of shall have no liability under this Section 16.07, a "Buyer's Assertion"), Buyer will notify Supplier in writing of the Buyer's Assertion, but the failure to so notify Supplier will not relieve Supplier of any liability it may have to Buyer, except 11.1 to the extent Supplier has suffered actual prejudice thereby. Supplier will be entitled to participate in and, to the extent Supplier elects by written notice to Buyer within thirty (30) days after receipt by Supplier of notice of such Buyer's Assertion, to assume the defense of such Buyer's Assertion, at Supplier's own expense, with counsel chosen by them which will be reasonably satisfactory to Buyer. With respect to any such Buyer's Assertion, Buyer will promptly provide Supplier witharising from: (i) notice and copies use of any documents served upon Buyeritem provided by Supplier hereunder in combination with other items not provided or approved by Supplier or with which such items were not designed to be used; and (ii) all reasonable cooperation which Supplier deems necessary to defend such Buyer's Assertion, including, without limitation, providing Supplier and its outside attorneys access to any potentially relevant documents, information, or individuals within the control of Buyer, other than any privileged documents. If business information of Buyer other than that pertaining to the Business is contained in such documents or information, Supplier and Buyer will enter into appropriate secrecy commitments to protect such documents or information. Notwithstanding that Supplier may have elected by written notice to assume the defense Gogo’s modification of any Buyer's Assertionitem provided by Supplier hereunder; or (iii) Supplier’s compliance with Gogo’s designs or specifications (where such designs or specifications form the basis for the claim, Buyer will have the right to participate in the investigation and defense thereof, with separate counsel not Supplier’s chosen by Buyer, but in such event the fees and expenses of Buyer (above those which would otherwise have been incurred) and such separate counsel will be paid by Buyer. (c) Notwithstanding anything in this Section 16.07 to the contrary: (i) Supplier will have no obligation with respect to any Buyer's Assertion if, in connection therewith, Buyer, without the written consent of Supplier, which consent will not be unreasonably withheld, settles or compromises any Action or consents to the entry of any judgment; and (ii) Supplier will not without the written consent of Buyer with respect to any Buyer Assertion: (A) settle or compromise any Action or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to Buyer of a duly executed written release of Buyer from all liability in respect of such Action, which release will be reasonably satisfactory in form and substance to counsel for Buyerimplementation), or (Biv) settle Supplier’s incorporation of technology supplied or compromise any Action in any manner that, in dictated by Gogo (where such technology forms the reasonable judgment of Buyer or its counsel, will adversely affect Buyer other than as a result of money damages or other money paymentsbasis for the claim). (d) Upon the payment of any settlement or judgment pursuant to this Section 16.07 with respect to any Buyer's Assertion, Supplier will be subrogated to all rights and remedies of Buyer against any third party in respect of such Buyer's Assertion to the extent of the amount so paid by Supplier. (e) The indemnity provided for by this Section 16.07 will be Buyer's exclusive source of recovery against Supplier with respect to matters covered hereby.

Indemnification by Supplier. (ai) Subject to the terms and conditions of this Supply Agreement, Supplier will jointly and severally shall defend, indemnify and hold harmless Buyer ABA and all of its affiliates past, present, and each of their respective future affiliates, customers, distributors, officers, directors, employees, shareholderscontractors, agents and representativessuccessors, assigns, agents, attorneys, and their successors insurers (“ABA Indemnitees“) against any and assigns (collectively the "Buyer Indemnities") from and against all claims, losses, liabilities, damages, costs and costs, expenses (including without limitation reasonable fees and expenses of attorneys incurred in investigation or defense of any Action) (collectively "Claims") arising out of or related to: (i) Excluded Liabilities as set forth in the Sale Agreement, (ii) any breach of any covenant or agreement of Supplier contained in this Supply Agreement, (iii) any negligence, gross negligence, or willful or intentional misconduct by Supplier or any of its personnel; and (iv) any breach of any representation or warranty of Supplier contained in this Supply Agreement; (b) Promptly after receipt by Buyer of notice of any third-party Action in respect of which indemnity may be sought against Supplier hereunder (for purposes of this Section 16.07, a "Buyer's Assertion"), Buyer will notify Supplier in writing of the Buyer's Assertion, but the failure to so notify Supplier will not relieve Supplier of any liability it may have to Buyer, except to the extent Supplier has suffered actual prejudice thereby. Supplier will be entitled to participate in and, to the extent Supplier elects by written notice to Buyer within thirty (30) days after receipt by Supplier of notice of such Buyer's Assertion, to assume the defense of such Buyer's Assertion, at Supplier's own expense, with counsel chosen by them which will be reasonably satisfactory to Buyer. With respect to any such Buyer's Assertion, Buyer will promptly provide Supplier with: (i) notice and copies of any documents served upon Buyer; and (ii) all reasonable cooperation which Supplier deems necessary to defend such Buyer's Assertion, including, without limitation, providing Supplier court costs and its outside attorneys access to any potentially relevant documentsattorneys’ fees), informationsuits, losses, or individuals within liabilities (“Claims”) arising from or by reason of any actual or claimed infringement or misappropriation of any patents, trade secrets, trademarks, maskworks, copyrights, or other Intellectual Property Rights by the Services. In addition, Supplier shall fully defend, indemnify and hold harmless ABA Indemnitees against any and all Claims arising from, or by reason of, or based on allegations of any breach of Exhibit C of this Agreement. (ii) ABA shall give Supplier prompt notice in writing of the Claim, and at Supplier's request and Supplier's expense, permit Supplier through its counsel to defend such Claim and provide Supplier reasonable assistance; provided, however, that ABA may hire its own counsel at its own expense. Supplier shall have control of Buyer, other than any privileged documents. If business information of Buyer other than that pertaining to the Business is contained in such documents or information, Supplier and Buyer will enter into appropriate secrecy commitments to protect such documents or information. Notwithstanding that Supplier may have elected by written notice to assume the defense of any Buyer's Assertionsuch suit, Buyer will have including appeals, negotiations, and the right to participate in the investigation and defense affect a settlement or compromise thereof, with separate counsel chosen by Buyer, but in such event the fees and expenses of Buyer (above those which would otherwise have been incurred) and such separate counsel will be paid by Buyer. (ciii) Notwithstanding anything in In addition to Supplier’s obligations to defend, indemnify, and hold harmless the ABA Indemnitees, and any other rights and remedies ABA may have under this Section 16.07 to Agreement, if the contrary: (i) Supplier will have no obligation with respect to any Buyer's Assertion ifpurchase, in connection therewithuse, Buyerimportation, without the written consent of Supplier, which consent will not be unreasonably withheld, settles or compromises any Action or consents to the entry of any judgment; and (ii) Supplier will not without the written consent of Buyer with respect to any Buyer Assertion: (A) settle or compromise any Action or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to Buyer of a duly executed written release of Buyer from all liability in respect of such Action, which release will be reasonably satisfactory in form and substance to counsel for Buyersale, or (B) settle distribution of the Services or compromise any Action portion of the Services is sought to be, is reasonably likely to be, or is in any manner thatfact, in the reasonable judgment of Buyer enjoined or its counsel, will adversely affect Buyer other than excluded from importation as a result of money damages any such claim of infringement or other money payments. (d) Upon misappropriation, Supplier, at its sole expense and on terms acceptable to ABA, also shall either procure the payment right for the ABA Indemnitees to continue purchasing and using the Services, or replace or modify the enjoined Services so that it becomes non-infringing, is of any settlement equivalent or judgment pursuant superior functionality to this Section 16.07 with respect the enjoined Services, is fully backward compatible, and meets all of ABA’s requirements, including but not limited to any Buyer's Assertionensuring that quality, quantity, price and delivery are not inferior to the Services being replaced or modified. Additionally, at ABA’s request, Supplier will be subrogated to all rights and remedies of Buyer against any third party in respect of such Buyer's Assertion to the extent shall promptly issue a full refund of the amount so total amounts paid by Supplierfor the Services that is enjoined or excluded, and ABA may cancel any or all pending orders for the Services without liability. Supplier agrees that time is of the essence and shall use best efforts and act in good faith to satisfy its foregoing obligations, as soon as practical after the use of the Services, is or is reasonably likely to be enjoined or excluded from importation. (e) The indemnity provided for by this Section 16.07 will be Buyer's exclusive source of recovery against Supplier with respect to matters covered hereby.

Indemnification by Supplier. Supplier shall indemnify, defend and hold harmless Customer, Customer Affiliates and their Indemnitees from and against any and all Losses arising from claims by third parties, whether based in whole or in part in contract, tort, negligence, statute or otherwise, to the extent caused by any of the following: (a) Subject to the terms and conditions of this Supply Agreement, Supplier will jointly and severally defend, indemnify and hold harmless Buyer and its affiliates and each of their respective officers, directors, employees, shareholders, agents and representatives, and their successors and assigns (collectively the "Buyer Indemnities") from and against all claims, losses, liabilities, damages, costs and expenses (including without limitation reasonable fees and expenses of attorneys incurred in investigation or defense of any Action) (collectively "Claims") arising out of or related to: (i) Excluded Liabilities as set forth in the Sale Agreement, (ii) any breach of any covenant or agreement The failure of Supplier contained in this Supply Agreementto perform any obligations under any license, (iii) any negligence, gross negligence, lease or willful or intentional misconduct by other agreement between Supplier or any of its personnel; and (iv) any breach of any representation or warranty of Supplier contained in this Supply Agreementa third party; (b) Promptly after receipt by Buyer The failure of notice of Supplier to perform any obligations under any third-party Action license, lease or other agreement assigned by Supplier and assumed by Customer in respect of which indemnity may be sought against Supplier hereunder (for purposes connection with the expiration or termination of this Agreement, provided that this Section 16.07, a "Buyer's Assertion"), Buyer will notify Supplier in writing of 13.2(b) shall apply only to Losses payable to such third party that are based on acts or omissions occurring during the Buyer's Assertion, but period preceding the failure to so notify Supplier will not relieve Supplier of any liability it may have to Buyer, except to the extent Supplier has suffered actual prejudice thereby. Supplier will be entitled to participate in and, to the extent Supplier elects by written notice to Buyer within thirty (30) days after receipt by Supplier of notice date of such Buyer's Assertion, to assume the defense of such Buyer's Assertion, at Supplier's own expense, with counsel chosen by them which will be reasonably satisfactory to Buyer. With respect to any such Buyer's Assertion, Buyer will promptly provide Supplier with: (i) notice and copies of any documents served upon Buyer; and (ii) all reasonable cooperation which Supplier deems necessary to defend such Buyer's Assertion, including, without limitation, providing Supplier and its outside attorneys access to any potentially relevant documents, information, or individuals within the control of Buyer, other than any privileged documents. If business information of Buyer other than that pertaining to the Business is contained in such documents or information, Supplier and Buyer will enter into appropriate secrecy commitments to protect such documents or information. Notwithstanding that Supplier may have elected by written notice to assume the defense of any Buyer's Assertion, Buyer will have the right to participate in the investigation and defense thereof, with separate counsel chosen by Buyer, but in such event the fees and expenses of Buyer (above those which would otherwise have been incurred) and such separate counsel will be paid by Buyer.assumption; (c) Notwithstanding anything in this Section 16.07 The failure of Supplier to the contrary: (i) comply with Supplier will have no obligation with respect to any Buyer's Assertion if, in connection therewith, Buyer, without the written consent of Supplier, which consent will not be unreasonably withheld, settles or compromises any Action or consents to the entry of any judgment; and (ii) Supplier will not without the written consent of Buyer with respect to any Buyer Assertion: (A) settle or compromise any Action or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to Buyer of a duly executed written release of Buyer from all liability in respect of such Action, which release will be reasonably satisfactory in form and substance to counsel for Buyer, or (B) settle or compromise any Action in any manner that, in the reasonable judgment of Buyer or its counsel, will adversely affect Buyer other than as a result of money damages or other money payments.Laws; (d) Upon Supplier’s failure to obtain any Required Consents; provided, however, if the payment failure to obtain a Required Consent is an infringement or alleged infringement of any settlement or judgment pursuant to intellectual property, this Section 16.07 13.2 shall not apply and Section 13.4 shall constitute Supplier’s sole and exclusive obligation and liability with respect to any Buyer's Assertion, Supplier will be subrogated the failure to all rights and remedies of Buyer against any third party in respect of obtain such Buyer's Assertion to the extent of the amount so paid by Supplier.Required Consent; (e) The indemnity provided for To the extent not related to any wrongful acts or omissions committed or alleged to have been committed by this Customer or any Customer Affiliate or any Authorized Users, any claims brought by any Contractor or Related Party of Supplier arising under or in connection with an agreement between Supplier and such Contractor or Related Party; (f) Supplier’s breach of any of its representations and warranties set forth in Section 16.07 will be Buyer's exclusive source 10.1(a); (g) Any breach of recovery against Supplier Supplier’s obligations hereunder with respect to matters covered herebyTaxes; or (h) Any claims brought by other customers of Supplier caused by the provision of the Services from a Service Location that is shared with other customers of Supplier.

Indemnification by Supplier. (a) Subject to the terms Section 11.02(b) and conditions of this Supply Agreement11.03, Supplier will jointly and severally defendshall indemnify, indemnify defend and hold harmless Buyer Purchaser, its Affiliates, sublicensees and its affiliates and each of their respective officers, directors, employees, shareholders, agents and representativesdistributors, and their successors respective directors, officers, employees and assigns (collectively the "Buyer Indemnities") agents, from and against any and all claims, losses, liabilities, damages, losses, costs and or expenses (including without limitation reasonable fees and expenses of attorneys incurred in investigation or defense of any Actionand other professionals) (collectively "“Losses”) resulting from claims, demands or actions (“Claims"”) arising out of Third Parties to the extent based upon any breach of Supplier’s obligations, covenants, representations and warranties set forth in this Agreement or related to: the Quality Agreement. For the sake of clarity, Purchaser’s Obsolescence Claims shall not be handled pursuant to this Section 11.02(a) and instead shall be handled in accordance with Section 11.02(b) below. (b) Subject to Section 11.04(d), Supplier shall indemnify Purchaser by reimbursing or crediting Purchaser (at Purchaser’s option) for all Qualified Costs resulting from Obsolescence Claims, provided that, Supplier shall not obligated to indemnify Purchaser to the extent that such Obsolescence Claim is (i) Excluded Liabilities as set forth in the Sale Agreement, (ii) any breach of any covenant attributable to Purchaser’s or agreement of Supplier contained in this Supply Agreement, (iii) any its Affiliates’ negligence, gross negligence, willful misconduct or willful fraud; (ii) attributable to Purchaser’s, its Affiliate’s or intentional misconduct its Third Party customer’s failure to abide by Supplier cGMP (if applicable), Good Distribution Practices as defined under relevant Law (if applicable) or any applicable Law; (iii) attributable to Purchaser or its Affiliate having supplied Third Party customer with Products in excess of its personnel; and such Third Party customer’s orders, or (iv) any breach of any representation made more than six (6) months after the expiration or warranty of Supplier contained in this Supply Agreement; (b) Promptly after receipt by Buyer of notice of any third-party Action in respect of which indemnity may be sought against Supplier hereunder (for purposes termination of this Section 16.07Agreement. All such Obsolescence Claims shall be reported to Supplier on a quarterly basis, a "Buyer's Assertion"), Buyer will notify Supplier in writing of the Buyer's Assertion, but the failure to so notify Supplier will not relieve Supplier of any liability it may have to Buyer, except to the extent Supplier has suffered actual prejudice thereby. Supplier will be entitled to participate in and, to the extent Supplier elects by written notice to Buyer within thirty (30) days after receipt of the end of the applicable calendar quarter in which such Obsolescence Claim is incurred by Supplier of notice of Purchaser, and supported by such Buyer's Assertion, to assume the defense of such Buyer's Assertion, at Supplier's own expense, with counsel chosen by them which will documentation as may be reasonably satisfactory to Buyer. With respect to any such Buyer's Assertion, Buyer will promptly provide Supplier with: (i) notice and copies of any documents served upon Buyer; and (ii) all reasonable cooperation which Supplier deems necessary to defend such Buyer's Assertion, including, without limitation, providing Supplier and its outside attorneys access to any potentially relevant documents, information, or individuals within the control of Buyer, other than any privileged documents. If business information of Buyer other than that pertaining to the Business is contained in such documents or information, Supplier and Buyer will enter into appropriate secrecy commitments to protect such documents or information. Notwithstanding that Supplier may have elected by written notice to assume the defense of any Buyer's Assertion, Buyer will have the right to participate in the investigation and defense thereof, with separate counsel chosen by Buyer, but in such event the fees and expenses of Buyer (above those which would otherwise have been incurred) and such separate counsel will be paid by Buyer. (c) Notwithstanding anything in this Section 16.07 to the contrary: (i) Supplier will have no obligation with respect to any Buyer's Assertion if, in connection therewith, Buyer, without the written consent of Supplier, which consent will not be unreasonably withheld, settles or compromises any Action or consents to the entry of any judgment; and (ii) Supplier will not without the written consent of Buyer with respect to any Buyer Assertion: (A) settle or compromise any Action or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to Buyer of a duly executed written release of Buyer from all liability in respect of such Action, which release will be reasonably satisfactory in form and substance to counsel for Buyer, or (B) settle or compromise any Action in any manner that, in the reasonable judgment of Buyer or its counsel, will adversely affect Buyer other than as a result of money damages or other money payments. (d) Upon the payment of any settlement or judgment pursuant to this Section 16.07 with respect to any Buyer's Assertion, Supplier will be subrogated to all rights and remedies of Buyer against any third party in respect of such Buyer's Assertion to the extent of the amount so paid requested by Supplier. (e) The indemnity provided for by this Section 16.07 will be Buyer's exclusive source of recovery against Supplier with respect to matters covered hereby.

Indemnification by Supplier. (a) Subject to the terms and conditions of this Supply AgreementSupplier shall indemnify, Supplier will jointly and severally defend, indemnify defend and hold CUTANEA harmless Buyer from any and its affiliates and each of their respective officersall losses, directors, employees, shareholders, agents and representatives, and their successors and assigns (collectively the "Buyer Indemnities") from and against all claims, lossesdamages, liabilities, damagescosts, costs charges, expenses, including, without limitation, court fees and reasonable lawyers’ fees and other legal expenses (including without limitation reasonable fees and expenses of attorneys incurred in investigation or defense collectively, “Losses”) to which CUTANEA may become subject as a result of any Action) claim, complaint, suit, demand, action or other proceeding by any Third Party (collectively "“Claims") arising ”), to the extent such Losses arise out of or related toin connection with: (i) Excluded Liabilities as set forth in the Sale Agreementdevelopment, (ii) any breach use, Manufacturing, storage, handling or distribution of any covenant or agreement of Supplier contained in this Supply Agreement, (iii) any negligence, gross negligence, or willful or intentional misconduct the Products by Supplier or any of its personnelAffiliates or contract suppliers of Products; and (ii) the negligence or willful misconduct of Supplier or any of its Affiliates or contract suppliers of Products; or (iii) a breach or non-fulfilment by Supplier of its obligations according to this Agreement and/or any law in force; or (iv) any a breach of any representation or warranty of Supplier contained in this Supply Agreement; (b) Promptly after receipt by Buyer of notice of any third-party Action in respect of which indemnity may be sought against Supplier hereunder (for purposes of this Section 16.07, a "Buyer's Assertion"), Buyer will notify Supplier in writing of the Buyer's Assertion, but the failure to so notify Supplier will not relieve Supplier of any liability warranty, representation, covenant or agreement made by it may have to Buyerin this Agreement; except, except to the extent Supplier has suffered actual prejudice thereby. Supplier will be entitled to participate in andeach case, to the extent such Losses result from (a) the negligence or willful misconduct of CUTANEA or (b) the breach by CUTANEA of any warranty, representation, covenant or agreement made by it in this Agreement and to the extent that such negligence, willful misconduct or breach it is stated by a final court decision. Notwithstanding the foregoing, Supplier elects shall have no obligation to indemnify CUTANEA for reasonable lawyers’ fees and other legal expenses incurred by written notice to Buyer within thirty (30) days CUTANEA after receipt by Supplier of notice of such Buyer's Assertion, to assume has taken over the defense of such Buyer's Assertionclaim, at Supplier's own expense, with counsel chosen by them which will be reasonably satisfactory to Buyer. With respect to any such Buyer's Assertion, Buyer will promptly provide Supplier with: (i) notice and copies of any documents served upon Buyer; and (ii) all reasonable cooperation which Supplier deems necessary to defend such Buyer's Assertion, including, without limitation, providing Supplier and its outside attorneys access to any potentially relevant documents, information, or individuals within the control of Buyer, other than any privileged documents. If business information of Buyer other than that pertaining to the Business is contained in such documents or information, Supplier and Buyer will enter into appropriate secrecy commitments to protect such documents or information. Notwithstanding that Supplier may have elected by written notice to assume the defense of any Buyer's Assertion, Buyer will have the right to participate in the investigation and defense thereof, with separate counsel chosen by Buyer, but in such event the fees and expenses of Buyer (above those which would otherwise have been incurred) and such separate counsel will be paid by Buyer. (c) Notwithstanding anything in this Section 16.07 to the contrary: (i) Supplier will have no obligation with respect to any Buyer's Assertion if, in connection therewith, Buyer, without the written consent of Supplier, which consent will not be unreasonably withheld, settles or compromises any “Action or consents to the entry of any judgment; Proceeding” in accordance with Section 10.3 unless and (ii) Supplier will not without the written consent of Buyer with respect to any Buyer Assertion: (A) settle or compromise any Action or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to Buyer of a duly executed written release of Buyer from all liability in respect of such Action, which release will be reasonably satisfactory in form and substance to counsel for Buyer, or (B) settle or compromise any Action in any manner that, in the reasonable judgment of Buyer or its counsel, will adversely affect Buyer other than as a result of money damages or other money payments. (d) Upon the payment of any settlement or judgment pursuant to this Section 16.07 with respect to any Buyer's Assertion, Supplier will be subrogated to all rights and remedies of Buyer against any third party in respect of such Buyer's Assertion then only to the extent of the amount so paid otherwise agreed to in advance in writing by Supplier. (e) The indemnity provided for by this Section 16.07 will be Buyer's exclusive source of recovery against Supplier with respect to matters covered hereby.

Indemnification by Supplier. (a) Subject to the terms and conditions of this Supply Agreement, Supplier will jointly and severally defendat its expense indemnify, indemnify defend and hold harmless Buyer Health Net and its affiliates Affiliates, and each of their respective officers, directors, customers, employees, shareholdersagents, agents and representatives, and their successors and assigns (collectively the "Buyer Indemnities"collectively, “Health Net Indemnitees”) from and against any and all claimsLosses suffered or incurred by any of them arising from, lossesin connection with, liabilitiesor based on any of the following, damageswhenever made, costs and expenses except to the extent caused by Health Net or an Health Net Affiliate: (including without limitation reasonable fees and expenses of attorneys incurred in investigation or defense of any Actiona) (collectively "Claims") arising out Any Indemnity Claim by, on behalf of or related to: (i) Excluded Liabilities as set forth in relating to any of the Sale AgreementAffected Employees relating to Supplier’s employee selection, (ii) any communications, recruitment or hiring process or a breach of any covenant or agreement of Supplier contained in this Supply Agreement, (iii) any negligence, gross negligence, or willful or intentional misconduct by Supplier or any of its personnel; and Schedule E (iv) any breach of any representation or warranty of Supplier contained in this Supply AgreementEmployee Transfer); (b) Promptly Any Indemnity Claim by, on behalf of or relating to any of the Transitioned Employees with respect to matters arising out of acts or omissions of Supplier occurring on or after receipt the Transfer Date, excluding Indemnity Claims for which Health Net is required to indemnify under Section 23.3(b); (c) Any Indemnity Claim (i) by Buyer a Subcontractor or by other Supplier Personnel, including claims by such personnel that Health Net is liable to such personnel for employee benefits or as the employer or joint employer of notice of any third-party Action such personnel, except to the extent, if any, that Health Net is required by this Agreement to indemnify Supplier in respect of which indemnity may be sought against Supplier hereunder the Indemnity Claim, or (for purposes of this Section 16.07, a "Buyer's Assertion"), Buyer will notify Supplier in writing of ii) based upon the Buyer's Assertion, but the failure to so notify Supplier will not relieve Supplier acts or omissions of any liability it may have Subcontractor in performance of or relating to Buyerthe Services to the same extent as if Supplier had committed the act or omission; (d) Any Indemnity Claim arising out of Supplier’s breach of its obligations under Section 14 (Data Security and Protection) or Section 21 (Confidentiality) or the Business Associate Agreement; (e) Any Indemnity Claim arising out of a Security Breach, except to the extent that such Security Breach was caused by Health Net’s negligence, willful misconduct or breach of this Agreement; (f) Any Indemnity Claim arising out of Supplier’s breach of Section 19.7(a) (Non-Infringement); (g) Any Indemnity Claim arising out of Supplier’s breach of its obligations under Section 27.7 (Compliance with Laws) (h) Any Indemnity Claim for death or bodily injury, or the damage, loss or destruction of real or tangible personal property of any third party (including employees of Health Net or Supplier has suffered actual prejudice therebyor their respective subcontractors) brought against a Health Net Indemnitee alleged to have been caused by the tortious acts or omissions of Supplier, Supplier Personnel or anyone else for whose acts Supplier is responsible. However, Supplier will be entitled have a right of contribution from Health Net with respect to participate the Indemnity Claim to the extent Health Net’s comparative negligence is responsible for causing the alleged injury or damage, loss or destruction; (i) Any Indemnity Claim with respect to Supplier’s use of any Health Net Provided Resources made available by Health Net to Supplier or Subcontractors pursuant to Section 11 to the extent the loss results from a breach by Supplier or any Subcontractor of, or an act or omission of Supplier which creates liability for Health Net pursuant to (A) a Health Net Provided Resource or an agreement between Health Net and a third party relating to such Health Net Provided Resources, or certain provisions thereof, which have been provided to Supplier in writing, including obligations to comply with requirements regarding numbers and types of licenses under any such agreements; (B) the terms of this Agreement, including Supplier’s obligations with respect to Managed Third Party Contracts set forth in this Agreement, or (C) any other reasonable restrictions required by Health Net relating to the Health Net Provided Resources, which restrictions are provided to Supplier in writing; (j) Any amounts, including taxes, interest, and penalties, assessed against Health Net which arise as a result of Supplier’s failure to comply with and perform its obligations under Section 9.3 (Taxes); (k) Supplier’s (i) improper or wrongful termination of this Agreement or part thereof, or (ii) except to the extent any cessation of Services is expressly permitted under this Agreement, abandonment of any work under this Agreement; (l) Any breach of any of Supplier’s representations or warranties set forth in Section 20 (Mutual Representations and Warranties), Section 19.8 (Disabling Code), or the second sentence of Section 19.7 (Viruses); (m) Any intentional misconduct or criminal misconduct by Supplier; and (n) Any Indemnity Claim arising out of occurrences Supplier is required to insure against under this Agreement, but only to the extent Supplier elects by written notice has failed to Buyer within thirty (30) days after receipt by Supplier of notice of such Buyer's Assertion, to assume procure the defense of such Buyer's Assertion, at Supplier's own expense, with counsel chosen by them which will be reasonably satisfactory to Buyer. With respect to any such Buyer's Assertion, Buyer will promptly provide Supplier with: (i) notice and copies of any documents served upon Buyer; and (ii) all reasonable cooperation which Supplier deems necessary to defend such Buyer's Assertion, including, without limitation, providing Supplier and its outside attorneys access to any potentially relevant documents, information, or individuals within the control of Buyer, other than any privileged documents. If business information of Buyer other than that pertaining to the Business is contained in such documents or information, Supplier and Buyer will enter into appropriate secrecy commitments to protect such documents or information. Notwithstanding insurance that Supplier may have elected by written notice is obligated to assume the defense of any Buyer's Assertion, Buyer will have the right to participate in the investigation and defense thereof, with separate counsel chosen by Buyer, but in such event the fees and expenses of Buyer (above those which would otherwise have been incurred) and such separate counsel will be paid by Buyer. (c) Notwithstanding anything in procure under this Section 16.07 to the contrary: (i) Supplier will have no obligation with respect to any Buyer's Assertion if, in connection therewith, Buyer, without the written consent of Supplier, which consent will not be unreasonably withheld, settles Agreement. Any act or compromises any Action or consents to the entry of any judgment; and (ii) Supplier will not without the written consent of Buyer with respect to any Buyer Assertion: (A) settle or compromise any Action or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to Buyer omission of a duly executed written release Subcontractor shall be deemed to be an act or omission of Buyer from all liability in respect Supplier for purposes of such Action, which release will be reasonably satisfactory in form and substance to counsel for Buyer, or (B) settle or compromise any Action in any manner that, in the reasonable judgment of Buyer or its counsel, will adversely affect Buyer other than as a result of money damages or other money payments. (d) Upon the payment of any settlement or judgment determining Supplier’s indemnification obligations pursuant to this Section 16.07 with respect to any Buyer's Assertion, Supplier will be subrogated to all rights and remedies of Buyer against any third party in respect of such Buyer's Assertion to the extent of the amount so paid by Supplier23.1. (e) The indemnity provided for by this Section 16.07 will be Buyer's exclusive source of recovery against Supplier with respect to matters covered hereby.