INDEMNITIES FOR CERTAIN BREACHES AND OTHER MATTERS. The following shall apply to any breach of, and certain other Damages relating to, this Agreement, other than a Deficiency for which Sabre has no liability for Damages under SECTION 11.2(a) or a nonpayment by TCY of any amount relating to an invoice: (a) Subject to the limits on liability described in SECTION 11.2(b) AND (c), if that Section is applicable, each Party shall indemnify the other Party against all Damages of the Indemnified Party, or any of its Indemnified Agents, resulting from or relating to: (i) any breach of this Agreement, including a breach of any warranty in this Agreement, by the Indemnifying Party; (ii) any Proceedings relating to a breach of this Agreement by the Indemnifying Party; and (iii) the actions or omissions of the Indemnifying Party's employees or agents under or in connection with this Agreement, except as described in SECTIONS 11.4(b) and 11.4(c). (b) TCY shall also indemnify Sabre against all Damages of Sabre or any of its Indemnified Agents, including any Subcontract Termination Penalty, under or relating to any Service Subcontract resulting from: (i) any violation by TCY of any obligation imposed on it under that Service Subcontract; (ii) the actions or omissions of TCY's employees or agents under or in connection with that Service Subcontract; (iii) TCY's discontinuance of any Optional Service that Sabre renders, in whole or in part, by that Service Subcontract, even if permitted by ARTICLE 3; (iv) TCY's performing itself or obtaining from any Person other than Sabre or its Subcontractor any service or services to supplement or substitute for any Optional Service that Sabre renders, in whole or in part, by that Service Subcontract; (v) the actions, omissions or claims of any client or customer of TCY or any Person to whom TCY provides goods or services; or (vi) the termination of this Agreement other than a termination by TCY under SECTIONS 10.1(a), 10.1(b) or 10.1(c). (c) TCY shall also indemnify Sabre against all Damages of Sabre or any of its Indemnified Agents resulting from or relating to: (i) the actions or omissions of any of the Legal Staff that are directed by TCY or any TCY Company within the scope of that lawyer's or paralegal's engagement for any legal matter of TCY or any TCY Company; or (ii) any sales, use, or similar taxes (however described) applicable to any of the Services, in whole or in part, that are assessed or levied against or paid by Sabre. (d) The indemnification obligations in SECTIONS 11.4(a), 11.4(b), and 11.4(c) shall be extinguished to the extent that the Damages of the other Party, or any of its Indemnified Agents for whom or which the other Party is seeking indemnification, were caused by the gross negligence (including recklessness) or willful misconduct of the Person for whom or which indemnification is sought. THE ORDINARY NEGLIGENCE OF A PERSON OR THE JOINT OR CONCURRENT ORDINARY NEGLIGENCE OF PERSONS SHALL NOT PRECLUDE THAT PERSON OR ANY OF THOSE PERSONS FROM RECEIVING THE BENEFITS OF INDEMNIFICATION UNDER THIS AGREEMENT. (e) If an Indemnification Claim is not based on a Third-Party Claim, the Indemnified Party shall give an Indemnification Claim Notice promptly after the event constituting the basis for the Indemnification Claim; its failure to do so, however, shall relieve the Indemnifying Party of its indemnification obligations only to the extent the Indemnifying Party is actually prejudiced by that CONFIDENTIAL
Appears in 1 contract
Samples: Administrative Services Agreement (Travelocity Com Inc)
INDEMNITIES FOR CERTAIN BREACHES AND OTHER MATTERS. The following shall apply to any breach of, and certain other Damages relating to, this Agreement, other than a Deficiency for which Sabre TSI has no liability for Damages under SECTION 11.2(aSection 14.2(a) or a nonpayment by TCY PCO of any amount relating to an invoice:
(a) Subject to the limits on liability described in SECTION 11.2(b) AND (cSection 14.2(b), if that Section is applicable, each Party shall indemnify the other Party against all Damages of the Indemnified Party, or any of its Indemnified Agents, resulting from or relating to:
(i) any breach of this Agreement, including a breach of any nay warranty in this Agreement, by the Indemnifying Party;
(ii) any Proceedings relating to a breach of this Agreement by the Indemnifying Party; and
(iii) the actions or omissions of the Indemnifying Party's employees or agents under or in connection with this Agreement, except as described in SECTIONS 11.4(bSections 14.4(b) and 11.4(c14.4(c).
(b) TCY PCO shall also indemnify Sabre TSI against all Damages of Sabre TSI or any of its Indemnified Agents, including any Subcontract Termination Penalty, under or relating to any Service Subcontract - other than as described in Section 3.5(b) - resulting from:
(i) any violation by TCY PCO of any obligation imposed on it under that Service Subcontract;
(ii) the actions or omissions of TCYPCO's employees or agents under or in connection with that Service Subcontract;
(iii) TCYPCO's discontinuance of any Optional Service that Sabre TSI renders, in whole or in part, by that Service Subcontract, even if permitted by ARTICLE 3;Article 5; or
(iv) TCYPCO's performing itself or obtaining from any Person other than Sabre TSI or its Subcontractor any service or services to supplement or substitute for any Optional Service that Sabre TSI renders, in whole or in part, by that Service Subcontract;
(v) the actions, omissions or claims of any client or customer of TCY or any Person to whom TCY provides goods or services; or
(vi) the termination of this Agreement other than a termination even if permitted by TCY under SECTIONS 10.1(a), 10.1(b) or 10.1(c)Section 6.3.
(c) TCY PCO shall also indemnify Sabre TSI against all Damages of Sabre TSI or any of its Indemnified Agents resulting from or relating to:
(i) the actions or omissions of any of the Legal Staff that are directed by TCY or any TCY Company PCO within the scope of that lawyer's or paralegal's engagement for any legal matter of TCY or any TCY CompanyPCO; or
(ii) any sales, use, or similar taxes (however described) applicable to any of the Services, in whole or in part, that are assessed or levied against or paid by SabreTSI.
(d) The indemnification obligations in SECTIONS 11.4(aSections 14.4(a), 11.4(b), 14.4(b) and 11.4(c14.4(c) shall be extinguished to the extent that the Damages of the other Party, or any of its Indemnified Agents for whom or which the other Party is seeking indemnification, were caused by the gross negligence (including recklessness) or willful misconduct of the Person for whom or which indemnification is sought. THE ORDINARY NEGLIGENCE OF A PERSON OR THE JOINT OR CONCURRENT ORDINARY NEGLIGENCE OF PERSONS SHALL NOT PRECLUDE THAT PERSON OR ANY OF THOSE PERSONS FROM RECEIVING THE BENEFITS OF INDEMNIFICATION UNDER THIS AGREEMENT.
(e) If an Indemnification Claim is not based on a Third-Party Claim, the Indemnified Party shall give an Indemnification Claim Notice promptly after the event constituting the basis for the Indemnification Claim; its failure to do so, however, shall relieve the Indemnifying Party of its indemnification obligations only to the extent the Indemnifying Party is actually prejudiced by that CONFIDENTIALfailure. If the Indemnified Party gives an Indemnification Claim Notice regarding an Indemnification Claim not based on a Third-Party Claim, the Indemnifying Party shall Notify the Indemnified Party within the Indemnification Response Period whether the Indemnifying Party disputes all or any portion of the Indemnification Claim. If the Indemnifying Party does not give that dispute Notice or agrees to accept liability for all or a portion of the Indemnification Claim, the Indemnification Claim, or the agreed portion of that Indemnification Claim, shall be the Indemnifying Party's liability. Otherwise, the Indemnification Claim shall be deemed a Dispute to be resolved by the Dispute Resolution Procedure.
(f) If an Indemnification Claim is based on a Third-party Claim:
(i) The Indemnified Party shall give an Indemnification Claim Notice promptly after it receives the Third-Party Claim.
(ii) The Indemnifying Party shall be entitle to defend the Third- Party Claim, with its chosen counsel and at its own expense, if (A) the Third-Party Claim seeks only monetary relief, against the Indemnified Party, and (B) the Indemnifying Party elects to assume, and diligently conducts, that defense. The Indemnifying Party's election to defend shall be given by Notice to the Indemnified Party within the Indemnification Response Period. If the Indemnifying Party conducts the defense, the Indemnified Party may participate in that defense with its own counsel and at its own expense.
(iii) If the Indemnifying Party does not elect to defend the Third- Party Claim by Notice within the Indemnification Response Period, or if the Indemnifying Party does not diligently conduct the defense, the Indemnified Party shall be entitled, upon further Notice to the Indemnifying Party, to defend the Third-Party Claim on behalf of, and for the account and risk of, the Indemnifying Party (if it is determined that the Indemnifying Party has an indemnification obligation regarding that Indemnification Claim). In this circumstance, the Indemnifying Party may participate in the defense with its own counsel and at its own expense.
(iv) If there is a conflict of interest that makes it inappropriate for the same counsel to represent the Indemnifying Party and the Indemnified Party in defending the Third-Party Claim, the Indemnifying Party shall pay for separate counsel for the Indemnified Party.
(v) The Indemnifying Party defending a Third-Party Claim may compromise, settle, or resolve that Third-Party Claim without the Indemnified Party's consent if the compromise, settlement, or resolution involves only the payment of money by the Indemnifying Party (whether on its own behalf or behalf of the Indemnified Party) and the third-party claimant provides the Indemnified Party a release from all liability regarding the Third-Party Claim. Otherwise, the Indemnifying Party may not compromise, settle, or resolve the Third-Party Claim without the Indemnified Party's Reasonable Consent.
(vi) The Indemnifying Party and the Indemnified Party shall cooperate with all reasonable requests of the other in defending any Third-Party Claim.
Appears in 1 contract
INDEMNITIES FOR CERTAIN BREACHES AND OTHER MATTERS. The following shall apply to any breach of, and certain other Damages relating to, this Agreement, other than a Deficiency for which Sabre has no liability for Damages under SECTION 11.2(a) or a nonpayment by TCY of any amount relating to an invoice:
(a) Subject to the limits on liability described in SECTION 11.2(b) AND (c), if that Section is applicable, each Party shall indemnify the other Party against all Damages of the Indemnified Party, or any of its Indemnified Agents, resulting from or relating to:
(i) any breach of this Agreement, including a breach of any warranty in this Agreement, by the Indemnifying Party;
(ii) any Proceedings relating to a breach of this Agreement by the Indemnifying Party; and
(iii) the actions or omissions of the Indemnifying Party's employees or agents under or in connection with this Agreement, except as described in SECTIONS 11.4(b) and 11.4(c).
(b) TCY shall also indemnify Sabre against all Damages of Sabre or any of its Indemnified Agents, including any Subcontract Termination Penalty, under or relating to any Service Subcontract resulting from:
(i) any violation by TCY of any obligation imposed on it under that Service Subcontract;
(ii) the actions or omissions of TCY's employees or agents under or in connection with that Service Subcontract;
(iii) TCY's discontinuance of any Optional Service that Sabre renders, in whole or in part, by that Service Subcontract, even if permitted by ARTICLE 3;
(iv) TCY's performing itself or obtaining from any Person other than Sabre or its Subcontractor any service or services to supplement or substitute for any Optional Service that Sabre renders, in whole or in part, by that Service Subcontract;
(v) the actions, omissions or claims of any client or customer of TCY or any Person to whom TCY provides goods or services; or
(vi) the termination of this Agreement other than a termination by TCY under SECTIONS 10.1(a), 10.1(b) or 10.1(c).
(c) TCY shall also indemnify Sabre against all Damages of Sabre or any of its Indemnified Agents resulting from or relating to:
(i) the actions or omissions of any of the Legal Staff that are directed by TCY or any TCY Company within the scope of that lawyer's or paralegal's engagement for any legal matter of TCY or any TCY Company; or
(ii) any sales, use, or similar taxes (however described) applicable to any of the Services, in whole or in part, that are assessed or levied against or paid by Sabre.
(d) The indemnification obligations in SECTIONS 11.4(a), 11.4(b), and 11.4(c) shall be extinguished to the extent that the Damages of the other Party, or any of its Indemnified Agents for whom or which the other Party is seeking indemnification, were caused by the gross negligence (including recklessness) or willful misconduct of the Person for whom or which indemnification is sought. THE ORDINARY NEGLIGENCE OF A PERSON OR THE JOINT OR CONCURRENT ORDINARY NEGLIGENCE OF PERSONS SHALL NOT PRECLUDE THAT PERSON OR ANY OF THOSE PERSONS FROM RECEIVING THE BENEFITS OF INDEMNIFICATION UNDER THIS AGREEMENT.
(e) If an Indemnification Claim is not based on a Third-Party Claim, the Indemnified Party shall give an Indemnification Claim Notice promptly after the event constituting the basis for the Indemnification Claim; its failure to do so, however, shall relieve the Indemnifying Party of its indemnification obligations only to the extent the Indemnifying Party is actually prejudiced by that CONFIDENTIALfailure. If the Indemnified Party gives an Indemnification Claim Notice regarding an Indemnification Claim not based on a Third-Party Claim, the Indemnifying Party shall Notify the Indemnified Party within the Indemnification Response Period whether the Indemnifying Party disputes all or any portion of the Indemnification Claim. If the Indemnifying Party does not give that dispute Notice or agrees to accept liability for all or a portion of the Indemnification Claim, the Indemnification Claim, or the agreed portion of that Indemnification Claim, shall be the Indemnifying Party's liability. Otherwise, the Indemnification Claim shall be deemed a Dispute to be resolved by the Dispute Resolution Procedure.
(f) If an Indemnification Claim is based on a Third-Party Claim:
(i) The Indemnified Party shall give an Indemnification Claim Notice promptly after it receives the Third-Party Claim. The failure of an Indemnified Party to timely give an Indemnification Claim Notice shall relieve the Indemnifying Party of its indemnification obligations only to the extent the Indemnifying Party is actually prejudiced by that failure.
(ii) The Indemnifying Party shall be entitled to defend the Third- Party Claim, with its chosen counsel and at its own expense, if (A) the Third-Party Claim seeks only monetary relief, and not an injunction or other equitable relief, against the Indemnified Party, and (B) the Indemnifying Party elects to assume, and diligently conducts, that defense. The Indemnifying Party's election to defend shall be given by Notice to the Indemnified Party within the Indemnification Response Period. If the Indemnifying Party conducts the defense, the Indemnified Party may participate in that defense with its own counsel and at its own expense.
(iii) If the Indemnifying Party does not elect to defend the Third- Party Claim by Notice within the Indemnification Response Period, or if the Indemnifying Party does not diligently conduct the defense, the Indemnified Party shall be entitled, upon further Notice to the Indemnifying Party, to defend the Third-Party Claim on behalf of, and for the account and risk of, the Indemnifying Party (if it is determined that the Indemnifying Party has an indemnification obligation regarding that Indemnification Claim). In this circumstance, the Indemnifying Party may participate in the defense with its own counsel and at its own expense.
(iv) If there is a conflict of interest that makes it inappropriate for the same counsel to represent the Indemnifying Party and the Indemnified Party in defending the Third-Party Claim, the Indemnifying Party shall pay for separate counsel for the Indemnified Party.
(v) The Indemnifying Party defending a Third-Party Claim may compromise, settle, or resolve that Third-Party Claim without the Indemnified Party's consent if the compromise, settlement, or resolution involves only the payment of money by the Indemnifying Party (whether on its own behalf or behalf of the Indemnified Party) and the third-party claimant provides the Indemnified Party a release from all liability regarding the Third-Party Claim. Otherwise, the Indemnifying Party may not compromise, settle, or resolve the Third-Party Claim without the Indemnified Party's Reasonable Consent.
(vi) The Indemnifying Party and the Indemnified Party shall cooperate with all reasonable requests of the other in defending any Third-Party Claim.
Appears in 1 contract
Samples: Administrative Services Agreement (Travelocity Com Inc)
INDEMNITIES FOR CERTAIN BREACHES AND OTHER MATTERS. The following shall apply to any breach of, and certain other Damages relating to, this Agreement, other than a Deficiency for which Sabre WWT has no liability for Damages under SECTION 11.2(aSection 14.2(b) or a nonpayment by TCY TCB of any amount relating to an invoice:
(a) Subject to the limits on liability described in SECTION 11.2(b) AND (cSection 14.2(c), if that Section is applicable, each Party shall indemnify the other Party against all Damages of the Indemnified Party, or any of its Indemnified Agents, resulting from or relating to:
(i) any breach of this Agreement, including a breach of any warranty in this Agreement, by the Indemnifying Party;
(ii) any Proceedings relating to a breach of this Agreement by the Indemnifying Party; and
(iii) the actions or omissions of the Indemnifying Party's employees or agents under or in connection with this Agreement, except as described in SECTIONS 11.4(b) and 11.4(c).
(b) TCY TCB shall also indemnify Sabre WWT against all Damages of Sabre WWT or any of its Indemnified Agents, including any Subcontract Termination Penalty, under or relating to any Service Subcontract Subcontract, other than as described in Section 3.5(b), resulting from:
(i) any violation by TCY TCB of any obligation imposed on it under that Service Subcontract;; or
(ii) the actions or omissions of TCYTCB's employees or agents under or in connection with that Service Subcontract;
(iii) TCY's discontinuance of any Optional Service that Sabre renders, in whole or in part, by that Service Subcontract, even if permitted by ARTICLE 3;
(iv) TCY's performing itself or obtaining from any Person other than Sabre or its Subcontractor any service or services to supplement or substitute for any Optional Service that Sabre renders, in whole or in part, by that Service Subcontract;
(v) the actions, omissions or claims of any client or customer of TCY or any Person to whom TCY provides goods or services; or
(vi) the termination of this Agreement other than a termination by TCY under SECTIONS 10.1(a), 10.1(b) or 10.1(c).
(c) TCY TCB shall also indemnify Sabre WWT against all Damages of Sabre WWT or any of its Indemnified Agents resulting from or relating to:
(i) the actions or omissions of any of the Legal Staff that are directed by TCY or any TCY Company within the scope of that lawyer's or paralegal's engagement for any legal matter of TCY or any TCY Company; or
(ii) to any sales, use, or similar taxes (however described) applicable to any of the Services, in whole or in part, that are assessed or levied against or paid by SabreWWT.
(d) The indemnification obligations in SECTIONS 11.4(aSections 14.4(a), 11.4(b), 14.4(b) and 11.4(c14.4(c) shall be extinguished to the extent that the Damages of the other Party, or any of its Indemnified Agents for whom or which the other Party is seeking indemnification, were caused by the gross negligence (including recklessness) or willful misconduct of the Person for whom or which indemnification is sought. THE ORDINARY NEGLIGENCE OF A PERSON OR THE JOINT OR CONCURRENT ORDINARY NEGLIGENCE OF PERSONS SHALL NOT PRECLUDE THAT PERSON OR ANY OF THOSE PERSONS FROM RECEIVING THE BENEFITS OF INDEMNIFICATION UNDER THIS AGREEMENT.
(e) If an Indemnification Claim is not based on a Third-Party Claim, the Indemnified Party shall give an Indemnification Claim Notice promptly after the event constituting the basis for the Indemnification Claim; its failure to do so, however, shall relieve the Indemnifying Party of its indemnification obligations only to the extent the Indemnifying Party is actually prejudiced by that CONFIDENTIALfailure. If the Indemnified Party gives an Indemnification Claim Notice regarding an Indemnification Claim not based on a Third-Party Claim, the Indemnifying Party shall Notify the Indemnified Party within the Indemnification Response Period whether the Indemnifying Party disputes all or any portion of the Indemnification Claim. If the Indemnifying Party does not give that dispute Notice or agrees to accept liability for all or a portion of the Indemnification Claim, the Indemnification Claim, or the agreed portion of that Indemnification Claim, shall be the Indemnifying Party's liability. Otherwise, the Indemnification Claim shall be deemed a Dispute to be resolved by the Dispute Resolution Procedure.
(f) If an Indemnification Claim is based on a Third-party Claim:
(i) The Indemnified Party shall give an Indemnification Claim Notice promptly after it receives the Third-Party Claim.
(ii) The Indemnifying Party shall be entitled to defend the Third-Party Claim, with its chosen counsel and at its own expense, if (A) the Third-Party Claim seeks only monetary relief against the Indemnified Party, and (B) the Indemnifying Party elects to assume, and diligently conducts, that defense. The Indemnifying Party's election to defend shall be given by Notice to the Indemnified Party within the Indemnification Response Period. If the Indemnifying Party conducts the defense, the Indemnified Party may participate in that defense with its own counsel and at its own expense.
(iii) If the Indemnifying Party does not elect to defend the Third-Party Claim by Notice within the Indemnification Response Period, or if the Indemnifying Party does not diligently conduct the defense, the Indemnified Party shall be entitled, upon further Notice to the Indemnifying Party, to defend the Third-Party Claim on behalf of, and for the account and risk of, the Indemnifying Party (if it is determined that the Indemnifying Party has an indemnification obligation regarding that Indemnification Claim). In this circumstance, the Indemnifying Party may participate in the defense with its own counsel and at its own expense.
(iv) If there is a conflict of interest that makes it inappropriate for the same counsel to represent the Indemnifying Party and the Indemnified Party in defending the Third-Party Claim, the Indemnifying Party shall pay for separate counsel for the Indemnified Party.
(v) The Indemnifying Party defending a Third-Party Claim may compromise, settle, or resolve that Third-Party Claim without the Indemnified Party's consent if the compromise, settlement, or resolution involves only the payment of money by the Indemnifying Party (whether on its own behalf or behalf of the Indemnified Party) and the third-party claimant provides the Indemnified Party a release from all liability regarding the Third-Party Claim. Otherwise, the Indemnifying Party may not compromise, settle, or resolve the Third-Party Claim without the Indemnified Party's Reasonable Consent.
(vi) The Indemnifying Party and the Indemnified Party shall cooperate with all reasonable requests of the other in defending any Third-Party Claim.
Appears in 1 contract
INDEMNITIES FOR CERTAIN BREACHES AND OTHER MATTERS. The following shall apply to any breach of, and certain other Damages damages relating to, this Agreement, other than a Deficiency for which Sabre American has no liability for Damages damages under SECTION 11.2(a) Section 15.2(a), or a nonpayment by TCY Eagle of any amount relating to an invoice:
(a) Subject to the limits on liability described in SECTION 11.2(b) AND (cSection 15.2(b), if that and further subject to the indemnities provided in Section is applicable, 15.3(b) and Section 15.3(c) (which indemnities will control over those provided in this Section 15.3(a)) each Party shall indemnify the other Party against all Damages damages of the Indemnified Party, or any of its Indemnified Agents, resulting from or relating to:
(i) to any breach of this Agreement, including a breach of any warranty in this Agreement, by the Indemnifying Party;
(ii) any Proceedings relating to a breach of this Agreement by the Indemnifying Party; and
(iii) the actions or omissions of the Indemnifying Party's employees or agents under or in connection with this Agreement, except as described in SECTIONS 11.4(b) and 11.4(c).
(b) TCY Eagle shall also indemnify Sabre American against all Damages damages of Sabre American or any of its Indemnified Agents, including any Subcontract Termination Penalty*****, under or relating to any Service Subcontract resulting from:
(i) any violation by TCY Eagle or an Eagle Affiliate of any obligation imposed on it under that Service Subcontract;
(ii) the actions or omissions of TCY's Eagle’s or an Eagle Affiliate’s employees or agents under or in connection with that Service Subcontract;
(iii) TCY's Eagle’s discontinuance of any Optional Service that Sabre American renders, in whole or in part, by that Service Subcontract, even if permitted by ARTICLE 3;4; provided that Eagle’s liability related to this sub-section will be limited to *****
(iv) TCY's Eagle or an Eagle Affiliate performing itself or obtaining from any Person other than Sabre American or its Subcontractor any service or * THE COMPANY HAS REQUESTED AN ORDER FROM THE SECURITIES AND EXCHANGE COMMISSION (THE “COMMISSION”) PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, GRANTING CONFIDENTIAL TREATMENT TO SELECTED PORTIONS. ACCORDINGLY, THE CONFIDENTIAL PORTIONS HAVE BEEN OMITTED FROM THIS EXHIBIT, AND HAVE BEEN FILED SEPARATELY WITH THE COMMISSION. OMITTED PORTIONS ARE INDICATED IN THIS EXHIBIT WITH “*****”. services to supplement or substitute for any Optional Service that Sabre American renders, in whole or in part, by that Service Subcontract;, even if permitted by Section 5.1 and Section 5.2; provided that Eagle’s liability related to this sub-section will be limited to *****; or
(v) the actions, omissions or claims of any client or customer of TCY or any Person to whom TCY provides goods or services; or
termination (vinot the Expiration) the termination of this Agreement other than a termination by TCY Eagle under SECTIONS 10.1(a), 10.1(bSection 14.2(a) or 10.1(cSection 14.2(b).
(c) TCY Eagle shall also indemnify Sabre American against all Damages damages of Sabre American or any of its Indemnified Agents resulting from or relating to:
(i) any Third-Party Claim arising out of or related to the actions Services or omissions of any of the Legal Staff that are directed by TCY or any TCY Company within the scope of that lawyer's or paralegal's engagement for any legal matter of TCY or any TCY CompanyLicensed Programs; or
(ii) any sales, use, or similar taxes (however described) applicable to any of the Services, in whole or in part, that are assessed or levied against or paid by SabreAmerican.
(d) The indemnification obligations in SECTIONS 11.4(aSection 15.3(a), 11.4(b), Section 15.3(b) and 11.4(cSection 15.3(c) shall be extinguished to the extent that the Damages damages of the other PartyIndemnified Party , or any of its Indemnified Agents for whom or which the other Indemnified Party is seeking indemnification, were caused by the gross negligence (including recklessness) or willful misconduct of the Person for whom or which indemnification is sought. THE ORDINARY NEGLIGENCE OF INDEMNIFICATION PROVISIONS IN Section 15.3(a), Section 15.3(b) AND Section 15.3(c) EXPRESS THE PARTIES’ INTENT THAT A PERSON BE INDEMNIFIED AGAINST ITS OWN ORDINARY NEGLIGENCE, OR THE JOINT OR CONCURRENT RESULTS OF THAT ORDINARY NEGLIGENCE OF PERSONS SHALL NOT PRECLUDE THAT PERSON OR ANY OF THOSE PERSONS FROM RECEIVING THE BENEFITS OF INDEMNIFICATION NEGLIGENCE, UNDER THIS AGREEMENT.
(e) If an Indemnification Claim is not based on a Third-Party Claim, the Indemnified Party shall give an Indemnification Claim Notice promptly after the event constituting the basis for or the Indemnification Claim; its failure to do so, however, shall relieve the Indemnifying Party of its indemnification obligations only to the extent the Indemnifying Party is actually prejudiced by that CONFIDENTIALfailure. If the Indemnified Party gives an Indemnification Claim Notice regarding an Indemnification Claim not based on a Third-Party Claim, the Indemnifying Party shall Notify the Indemnified Party within the Indemnification Response Period whether the Indemnifying Party disputes all or any portion of the Indemnification Claim. If the Indemnifying Party does not give that dispute Notice or agrees to accept liability for all or a portion of the Indemnification Claim, the Indemnification Claim, or the agreed portion of that Indemnification Claim, shall be the Indemnifying Party’s liability. Otherwise, the Indemnification Claim shall be deemed a Dispute to be resolved by the Dispute Resolution Procedure.
(f) The Indemnified Party shall provide the Indemnifying Party with prompt Notice of any Third-Party claim which the Indemnified Party believes gives rise to a * THE COMPANY HAS REQUESTED AN ORDER FROM THE SECURITIES AND EXCHANGE COMMISSION (THE “COMMISSION”) PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, GRANTING CONFIDENTIAL TREATMENT TO SELECTED PORTIONS. ACCORDINGLY, THE CONFIDENTIAL PORTIONS HAVE BEEN OMITTED FROM THIS EXHIBIT, AND HAVE BEEN FILED SEPARATELY WITH THE COMMISSION. OMITTED PORTIONS ARE INDICATED IN THIS EXHIBIT WITH “*****”. claim for indemnity against the Indemnifying Party. Notwithstanding the foregoing, the failure of an Indemnified Party to promptly provide Notice shall not constitute a waiver by the Indemnified Party of any right to indemnification or otherwise relieve such Indemnifying Party from any liability hereunder unless and only to the extent that the Indemnifying Party is materially prejudiced as a result thereof, and in any event shall not relieve such Indemnifying Party from any liability which it may have otherwise than on account of this Article 15. The Indemnifying Party shall be entitled, if it accepts financial responsibility for the Third-Party Claim, to control the defense of or to settle any such Third-Party Claim at its own expense and by its own counsel; provided, that the Indemnified Party’s prior Consent (which may not be unreasonably withheld or delayed) must be obtained prior to settling any such Third-Party Claim. The Indemnified Party shall provide the Indemnifying Party with such information as the Indemnifying Party shall reasonably request to defend any such Third-Party Claim and shall otherwise cooperate with the Indemnifying Party in the defense of any such Third-Party Claim. If the Indemnifying Party does not accept financial responsibility for the Third-Party Claim or fails to defend against the Third-Party Claim that is the subject of a Notice under this Section 15.3 within (30) thirty days of receiving such Notice (or sooner if the nature of the Third-Party Claim so requires), or otherwise contests its obligation to indemnify the Indemnified Party in connection therewith, the Indemnified Party may, upon providing Notice to the Indemnifying Party, pay, compromise or defend such Third-Party Claim. In the latter event, the Indemnified Party, by proceeding to defend itself or settle the matter, does not waive any of its rights hereunder to later seek indemnification from the Indemnifying Party. Except as set forth in this Section 15.3, the Indemnified Party shall not enter into any settlement or other compromise or Consent to a judgment with respect to a Third-Party Claim as to which the Indemnifying Party has an indemnity obligation hereunder without the prior Consent of the Indemnifying Party (which may not be unreasonably withheld or delayed), and the entering into of any settlement or compromise or the Consent to any judgment in violation of the foregoing shall constitute a waiver by the Indemnified Party of its right to indemnity hereunder to the extent the Indemnifying Party is prejudiced thereby. Any Indemnifying Party shall be subrogated to the rights of the Indemnified Party to the extent that the Indemnifying Party pays for any loss, damage or expense suffered by the Indemnified Party hereunder. Notwithstanding anything contained in this Section 15.3 to the contrary, Contractor and American shall cooperate in the defense of any claim imposed jointly against them.
Appears in 1 contract
Samples: Information Technology Transition Services Agreement (AMR Eagle Holding Corp)
INDEMNITIES FOR CERTAIN BREACHES AND OTHER MATTERS. The following shall apply to any breach of, and certain other Damages relating to, this Agreement, other than a Deficiency for which Sabre EDS has no liability for Damages under SECTION 11.2(aSection 14.2(a) or a nonpayment by TCY USI of any amount relating to an invoice:
(a) Subject to the limits on liability described in SECTION 11.2(b) AND (cSection 14.2(b), if that Section is applicable, each Party shall indemnify the other Party against all Damages of the Indemnified Party, or any of its Indemnified Agents, resulting from or relating to:
: (i) any breach of this Agreement, including a breach of any warranty in this Agreement, by the Indemnifying Party;
; (ii) any Proceedings relating to a breach of this Agreement by the Indemnifying Party; and
and (iii) the actions or omissions of the Indemnifying Party's employees or agents under or in connection with this Agreement, except as described in SECTIONS 11.4(bSections 14.4(b) and 11.4(c14.4(c).
(b) TCY USI shall also indemnify Sabre EDS against all Damages of Sabre EDS or any of its Indemnified Agents, including any Subcontract Termination Penalty, under or relating to any Service Subcontract Subcontract, other than as described in Section 3.5(b), resulting from:
: (i) any violation by TCY USI of any obligation imposed on it under that Service Subcontract;
; (ii) the actions or omissions of TCYUSI's employees or agents under or in connection with that Service Subcontract;
; (iii) TCYUSI's discontinuance of any Optional Service that Sabre EDS renders, in whole or in part, by that Service Subcontract, even if permitted by ARTICLE 3;
Article 5; (iv) TCYUSI's performing itself or obtaining from any Person other than Sabre EDS or its Subcontractor any service or services to supplement or substitute for any Optional Service that Sabre EDS renders, in whole or in part, by that Service Subcontract;
, even if permitted by Section 6.3; (v) the actions, omissions Expiration; or claims of any client or customer of TCY or any Person to whom TCY provides goods or services; or
(vi) the termination of this Agreement other than a termination by TCY USI under SECTIONS 10.1(a), 10.1(bSection 13.1(b) or 10.1(cSection 13.1(c).
(c) TCY USI shall also indemnify Sabre EDS against all Damages of Sabre EDS or any of its Indemnified Agents resulting from or relating to:
: (i) the actions or omissions of any of the Legal Staff that are directed by TCY USI or any TCY USI Company within the scope of that lawyer's or paralegal's engagement for any legal matter of TCY USI or any TCY USI Company; or
or (ii) any sales, use, consumption, value-added, telecommunications, gross receipts or similar taxes (however described) ), including any related interest and penalties, applicable to any of the Services, in whole or in part, that are assessed or levied against or paid by SabreEDS or an EDS Company.
(d) The indemnification obligations in SECTIONS 11.4(aSections 14.4(a), 11.4(b14.4(b), and 11.4(c14.4(c) shall be extinguished to the extent that the Damages of the other Party, or any of its Indemnified Agents for whom or which the other Party is seeking indemnification, were caused by the gross negligence (including recklessness) or willful misconduct of the Person for whom or which indemnification is sought. THE ORDINARY NEGLIGENCE OF INDEMNIFICATION PROVISIONS IN SECTIONS 14.4(a), 14.4(b), AND 14.4(c) EXPRESS THE PARTIES' INTENT THAT A PERSON BE INDEMNIFIED AGAINST ITS OWN ORDINARY NEGLIGENCE, OR THE JOINT OR CONCURRENT RESULTS OF THAT ORDINARY NEGLIGENCE OF PERSONS SHALL NOT PRECLUDE THAT PERSON OR ANY OF THOSE PERSONS FROM RECEIVING THE BENEFITS OF INDEMNIFICATION NEGLIGENCE, UNDER THIS AGREEMENT.
(e) If an Indemnification Claim is not based on a Third-Party Claim, the Indemnified Party shall give an Indemnification Claim Notice promptly after the event constituting the basis for the Indemnification Claim; its failure to do so, however, shall relieve the Indemnifying Party of its indemnification obligations only to the extent the Indemnifying Party is actually prejudiced by that CONFIDENTIALfailure. If the Indemnified Party gives an Indemnification Claim Notice regarding an Indemnification Claim not based on a Third-Party Claim, the Indemnifying Party shall Notify the Indemnified Party within the Indemnification Response Period whether the Indemnifying Party disputes all or any portion of the Indemnification Claim. If the Indemnifying Party does not give that dispute Notice or agrees to accept liability for all or a portion of the Indemnification Claim, the Indemnification Claim, or the agreed portion of that Indemnification Claim, shall be the Indemnifying Party's liability. Otherwise, the Indemnification Claim shall be deemed a Dispute to be resolved by the Dispute Resolution Procedure.
(f) If an Indemnification Claim is based on a Third-Party Claim:
(i) The Indemnified Party shall give an Indemnification Claim Notice promptly after it receives the Third-Party Claim. The failure of an Indemnified Party to timely give an Indemnification Claim Notice shall relieve the Indemnifying Party of its indemnification obligations only to the extent the Indemnifying Party is actually prejudiced by that failure.
(ii) The Indemnifying Party shall be entitled to defend the Third- Party Claim, with its chosen counsel and at its own expense, if (A) the Third-Party Claim seeks only monetary relief, and not an injunction or other equitable relief, against the Indemnified Party, and (B) the Indemnifying Party elects to assume, and diligently conducts, that defense. The Indemnifying Party's election to defend shall be given by Notice to the Indemnified Party within the Indemnification Response Period. If the Indemnifying Party conducts the defense, the Indemnified Party may participate in that defense with its own counsel and at its own expense.
(iii) If the Indemnifying Party does not elect to defend the Third- Party Claim by Notice within the Indemnification Response Period, or if the Indemnifying Party does not diligently conduct the defense, the Indemnified Party shall be entitled, upon further Notice to the Indemnifying Party, to defend the Third-Party Claim on behalf of, and for the account and risk of, the Indemnifying Party (if it is determined that the Indemnifying Party has an indemnification obligation regarding that Indemnification Claim). In this circumstance, the Indemnifying Party may participate in the defense with its own counsel and at its own expense.
(iv) If there is a conflict of interest that makes it inappropriate for the same counsel to represent the Indemnifying Party and the Indemnified Party in defending the Third-Party Claim, the Indemnifying Party shall pay for separate counsel for the Indemnified Party.
(v) The Indemnifying Party defending a Third-Party Claim may compromise, settle, or resolve that Third-Party Claim without the Indemnified Party's consent if the compromise, settlement, or resolution involves only the payment of money by the Indemnifying Party (whether on its own behalf or behalf of the Indemnified Party) and the third-party claimant provides the Indemnified Party a release from all liability regarding the Third-Party Claim. Otherwise, the Indemnifying Party may not compromise, settle, or resolve the Third-Party Claim without the Indemnified Party's Reasonable Consent.
(vi) The Indemnifying Party and the Indemnified Party shall cooperate with all reasonable requests of the other in defending any Third- Party Claim.
Appears in 1 contract
Samples: Management Services Agreement (Unigraphics Solutions Inc)
