Indemnification of Customer. (a) Subject to the provisions of this Section 10 and, for clarity, without limiting anything in the Separation Agreement or any other Ancillary Agreements, Manufacturer shall indemnify, defend and hold harmless Customer, its Affiliates and its and their respective directors, officers, managers, members, employees and agents, and each of the heirs, executors, successors and assigns of any of the foregoing (each, a “Customer Indemnified Party”) from and against any and all Losses of such Customer Indemnified Parties to the extent relating to, arising out of or resulting from any Action of a Third Party arising out of or resulting from any of the following items (without duplication): (i) any breach by Manufacturer or its Personnel of this Agreement or any Facility Addendum; (ii) any injury or death of any Person due to any breach by Manufacturer or its Personnel of this Agreement or any Facility Addendum; (iii) the infringement or misappropriation of a Third Party’s Intellectual Property by the use or practice by Manufacturer or its Affiliate of any Product manufacturing process that has been changed (including as to the facility in which such manufacturing process takes place) on or following the Effective Date without the written approval of Customer to make such change; (iv) Manufacturer’s supply of Non-Complying Product under this Agreement; or (v) the gross negligence, fraud or willful misconduct of Manufacturer or its Personnel in connection with the performance or non-performance of this Agreement.
(b) Notwithstanding the foregoing, Manufacturer shall not be liable for Losses described in Section 10.1(a) to the extent such Losses are: (i) caused by the gross negligence, fraud or willful misconduct of a Customer Indemnified Party in connection with the performance or non-performance of this Agreement; (ii) caused by the breach of any of the terms of this Agreement or a Facility Addendum by a Customer Indemnified Party, including in connection with the performance or non-performance of this Agreement or (iii) subject to Customer’s indemnification obligations pursuant to Section 10.2.
Indemnification of Customer. (a) Bank shall indemnify and hold each Customer harmless from and against all out-of-pocket expenses or losses actually incurred (net of any tax effect) as a result of (i) Bank’s operational failure or (ii) Bank’s failure to maintain Collateral for each Loan in accordance with the applicable Securities Lending Agreement, provided that Bank shall be deemed to have complied with the requirement to maintain Collateral if Bank has timely demanded additional Collateral from the applicable Approved Counterparty in accordance with the applicable Securities Lending Agreement; and provided that Bank shall not indemnify and hold Customer harmless to the extent that any expense or loss is caused in whole or in part by any willful misconduct, negligence, bad faith or other wrongful act of Customer.
(b) In the event an Approved Counterparty defaults under a Securities Lending Agreement by reason of its bankruptcy or insolvency and fails to return any Loaned Securities within the time specified in the applicable Securities Lending Agreement, the Bank shall indemnify Customer either (i) by causing to be credited to Customer’s account the amount, if any, by which the market value of the Loaned Securities at the time of Default exceeds the market value at the time of Default of the Collateral (which, in the case of cash, will be its face value) or, (ii) at the option of the Bank, providing replacement securities, to Customer. To the extent that the Bank provides indemnification under this Section, Customer agrees that the Bank shall become and remain subrogated to all rights of Customer, whether under the applicable Securities Lending Agreements or otherwise, that Customer may have against the Approved Counterparty, and Customer hereby assigns to the Bank all such rights. Customer agrees to execute and deliver all such written documents, and to take all other action reasonably requested by the Bank from time to time, to give effect to any rights of subrogation referred to in this Section.
Indemnification of Customer. LAS agrees to indemnify, defend and hold Customer harmless from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any claim by any third party that the Subscription Services and/or the Service Documentation infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights, provided that Customer promptly notifies LAS in writing of the claim, cooperates with LAS, and allows LAS sole authority to control the defense and settlement of such claim. If such a claim is made or appears likely to occur, Customer agrees to permit LAS, at LAS’ sole discretion, to enable it to continue to use the Subscription Services or the Service Documentation, as applicable, or to modify or replace any such infringing material to make it non-infringing, or to obtain rights to continue use. If LAS determines that none of these alternatives is reasonably available, Customer shall, upon written request from LAS, cease use of, and, if applicable, return, such materials as are the subject of the claim. This Section 8.1 shall not apply to the extent that the alleged claim arises from (a) modification of any of the Subscription Services by Customer, (b) combination, operation or use of any of the Subscription Services with other software, hardware, content, data or technology not provided by LAS, (c) use of a superseded or altered release of any of the Subscription Services, if such infringement would have been avoided by the use of a then-current release of the Subscription Services, as applicable, and if such then-current release has been made available to Customer, or (d) any Customer Content (any of the foregoing circumstances under clauses (a), (b), (c), or (d) a “Customer Indemnity Responsibility”). THIS SECTION STATES LAS’ ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION.
Indemnification of Customer. Vendor shall defend, indemnify, and hold harmless Customer and the Customer Associates (as defined below), against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Vendor's alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Vendor’s account, and (b) claims that use of the System through Vendor’s account harasses, defames, or defrauds a third party or violates any other law or restriction on electronic advertising. Vendor will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Customer Associates” are Customer’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
Indemnification of Customer. Encap shall indemnify, defend and hold Customer, its Affiliates and their respective officers, directors, employees and agents (each, a “Customer Indemnified Party”) harmless from and against any and all Losses suffered, incurred or sustained by any Customer Indemnified Party, by reason of any Claim or Proceeding to the extent arising out of or resulting from Encap’s: (i) breach of the representations and warranties and obligations made by Encap in this Agreement; or (ii) actual or alleged infringement of any third-party patent, trade secret, copyright, trademark or other intellectual property by Encap in connection with the performance of the services by Encap under this Agreement; or (iii) negligence or willful misconduct by Encap in connection with this Agreement; except to the extent that any of the foregoing arises out of or results from the breach of this Agreement by Customer or the negligence or willful misconduct of Customer or its Affiliates.
Indemnification of Customer. Fracta agrees to defend Customer and its directors, officers and employees from and against any and all claims, demands, suits or proceedings made or brought against Customer by third parties, and agrees to pay or reimburse Customer for any and all damages, costs and expenses payable by Customer to such third party to the extent that they are awarded in a final judgment or agreed to in settlement, as a result of a claim against Customer, based upon or arising out of: (i) any dishonest, fraudulent, criminal, or negligent acts committed by Fracta, or any agent or employee of Fracta, acting pursuant to, or in connection with, the Agreement; or (ii) a claim that the use of the Software as a Service or the System as permitted hereunder infringes the intellectual property rights of a third party. As a condition of Fracta’s indemnification obligation, Customer must (i) promptly give written notice of the claim to Fracta, (ii) give Fracta sole control of the defense and settlement of the claim (provided that Fracta may not settle or defend any claim unless it unconditionally releases Customer of all liability), (iii) provide to Fracta all reasonable and available information and assistance. and (iv) not have compromise or settled such claim.
Indemnification of Customer. Subject to Section 7 hereof, Zeus will defend, indemnify and hold harmless Customer and its affiliates, and officers, directors, employees, and agents thereof, from and against any and all Causes of Action incurred by Customer in connection with any third-party claim for (a) any breach of this Agreement by Zeus, and (b) infringement of a third-party intellectual property right by the Product or the manufacturing of the Product; provided, however, that such Causes of Action are in no way attributable to the negligence or willful misconduct of Customer. The afore-stated provision shall not apply if and to the extent such infringement of a third party intellectual property right is caused (i) by the sale, importation, or use of delivered Products being manufactured by Zeus according to Specifications, or drawings, models or similar descriptions provided by Customer, (ii) by alterations or variations of the Products by Customer after delivery by Zeus, (iii) by the combination of Products with other components to derive the devices or products of Customer, or (iv) the use or mis-use of the Products provided to Customer by Zeus, or any devices or products of Customer in a manner that is different from the manner expressly disclosed to Zeus in connection with the purchase of such Products hereunder.
Indemnification of Customer. Subject to the limitation of liability provided in Clause 13.3, Supplier shall indemnify and hold Customer and its officers, directors, agents, servants, employees and consultants harmless against any and all Claims of any Third Party, including all Claims for personal injury or death directly arising from the manufacture by Supplier of the Product, or Claims arising out of Supplier’s breach of its obligations under this Agreement, and which is not attributable to the gross negligence or willful misconduct of Customer or its officers, directors, agents, servants, employees or contractors.
Indemnification of Customer. (a) XXXX agrees to defend or settle any claim brought against Customer by an unaffiliated third party arising from (i) OPAQ’s gross negligence or willful misconduct, or (ii) allegations that Customer’s use of the Services as authorized by this Agreement infringes such third party’s patents issued as of the Effective Date, or alleging that such use infringes or misappropriates, as applicable, such third party’s copyrights, trademarks or trade secret rights under applicable laws (an “INFRINGEMENT CLAIM”). OPAQ shall pay all amounts that are finally awarded against Customer based on any such claims by a court of competent jurisdiction or any amounts that OPAQ has agreed to pay in settlement of the relevant third-party claim.
(b) If an Infringement Claim is made or appears possible, Customer agrees to permit OPAQ, at OPAQ’s sole discretion, to: (i) enable Customer to continue to use the Services; (ii) to modify or replace any such infringing material to make it non-infringing; or (iii) require Customer to cease use of, and, if applicable, return, such materials as are the subject of the infringement claim, and in the case of this clause (iii), OPAQ shall in connection with such requirement refund unearned pro rata portion of fees attributable to the materials or portion of the Services with regard to which the use is discontinued.
(c) OPAQ will have no obligation to indemnify where the alleged infringement, violation or misappropriation arises, in whole or in part, from: (i) modification of any OPAQ product or services; (ii) combination, operation or use of any OPAQ products or service with other software, hardware, systems or technologies not provided by OPAQ or explicitly authorized by the Documentation; (iii) Customer’s breach of Sections 2.1 or 5; or (iv) Customer’s use of the Services other than in accordance with the Documentation.
(d) THE PROVISIONS OF THIS SECTION 9 SET FORTH OPAQ’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
Indemnification of Customer. Regent agrees to indemnify, defend and hold harmless Customer from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any claim by any third party (each a “Claim”) to the extent arising from: (a) the Regent Service infringes such third party’s valid U.S. patents issued as of the Effective Date, or infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America; (b) Regent’s or Regent Service’s violation of any HEA or applicable Third Party Servicer Regulation 4 REV 110713-1 CONFIDENTIAL or other Regent Law; or (c) Regent’s gross negligence or willful misconduct, provided that Customer promptly notifies Regent in writing of the Claim, cooperates with Regent, and allows Regent sole authority to control the defense and settlement of such Claim; provided that Regent will not settle any Claim unless such settlement completely and forever releases Customer from all liability with respect to such Claim or unless Customer consents to such settlement, and further provided that Customer will have the right, at its option, and at its sole expense, to defend itself against any such Claim or to participate in the defense thereof by counsel of its own choice. If such a Claim is made or appears possible, Customer agrees to permit Regent, at Regent’s sole discretion, to enable it to continue to use the Regent Service or to modify or replace any such infringing material to make it non-infringing. If Regent determines that none of these alternatives is reasonably available, Customer shall, upon written request from Regent, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim and Regent will refund to Customer any amounts paid in advance by Customer for the use of such materials. This Section 8.1 shall not apply if the alleged infringement arises, in whole or in part, from (i) modification of the Regent Service by Customer, or (ii) combination, operation or use of the Regent Service with other software, hardware or technology not provided by Regent, or (iii) related to the Customer Content (any of the foregoing circumstances under clauses (i), (ii), and (iii) a “Customer Indemnity Responsibility”).
