Common use of Indemnity and Limitation of Liability Clause in Contracts

Indemnity and Limitation of Liability. 13.1. The Company shall not be liable to the Partner with respect to any subject matter of this Agreement under any contract, negligence, tort, strict liability, or other legal or equitable principle for any indirect, incidental, consequential, special, general, exemplary damages, proceedings, costs, damages, expenses (including legal fees), willful default, fraud or breach of its obligation under this Agreement (including without limitation, loss of revenue or goodwill, or anticipated profits or lost business) even if the Company have been advised of the possibility of such damages and the Company may deduct any amount to indemnify the Company and/or its affiliated entities from any outstanding Partner Commission. Further, notwithstanding anything to the contrary contained in this agreement, in no event shall the Company’s cumulative liability to the Partner arising out of or related to this agreement, whether based in contract, negligence, strict liability, tort or other legal or equitable theory, exceed the total commission fees paid to the Partner under this Agreement. 13.2. The Company makes no express or implied representations or warranties regarding the Company’s Services and Website or the products or services provided therein, any implied warranties of the Company ability, fitness for a particular purpose, and non-infringement are expressly disclaimed and excluded. In addition, the Company make no representation that the operation of the Company’s Website shall be uninterrupted or error free, and we shall not be liable for the consequences of any interruptions or errors. 13.3. The Partner hereby agrees to indemnify and hold harmless the Company, their Affiliated Entities and, directors, officers, employees, agents, shareholders, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of the breach of the Terms and Conditions of the present Agreement and/or any Operational Agreements and/or are based on any claim of: a) the Company’s use of the Partner trademarks infringes on any trademark, trade name, brand name, service mark, copyright, license, intellectual property, or other proprietary right of any third party; b) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by the Partner herein; or c) any claim related to the Partner’s site, including, without limitation, content therein not attributable to the Company. 13.4. Upon notice from the Company, the Partner will promptly pay to the Company any amount owed to the Company under this paragraph. If the Partner fails to make such payment, the Company, by action of an officer, will be entitled to collect any such amount by any available means, including but not be limited to charging any proprietary account of the Partner or offsetting any amount owed to the Partner by the Company. The Company is authorized to transfer, use, apply, sell, re-hypothecate or draw upon, as the case may be, any of the funds, securities or property in any proprietary account of the Partner whenever the Company deems it necessary to pay or satisfy amounts owed to it under this Agreement or any other agreement with the Partner. Further, the Company is authorized to withhold all commissions earned and payable to the Partner to the extent of any deficits in any and all accounts that the Partner has introduced to the Company. The rights described in this paragraph are in addition to all other rights and remedies available to the Company under this Agreement. 13.5. The Affiliate further agrees that, if any person or entity has instituted a claim, suit, action, arbitration or other proceeding against the Company and/or any Affiliated Entities, or threatened to do so, or the Company, in its reasonable judgment, believes may be instituted or threatened, which proceeding reasonably could expose the Company and/or any other Affiliated Entities to any potential liability, loss, cost, or expense which is the obligation of the Partner under this Agreement, the Company is authorized to withhold an amount equal to the amount of any such claim from any amounts owed to the Partner or from any other funds, securities or other property owned by the Partner on deposit with the Company for any purpose (including, without limitation, funds, securities or other property in any proprietary account of the Partner) until such has been fully resolved to the satisfaction of the Company. However, in the event that the intends to withhold the amount of any potential liability, loss, cost or expense as set forth above, the Company will notify the Partner of the amount to be withheld and the nature of the claim, and the Partner may participate in defense of the claim through counsel chosen by it at its own expense.

Appears in 2 contracts

Samples: Partnership Agreement, Partnership Agreement

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Indemnity and Limitation of Liability. 13.1. 9.1 The Company shall not be liable to the Partner liability of FhG with respect to any subject matter of this Agreement under any contractservice, negligence, tort, strict liabilitysale, or other legal or equitable principle for any indirectanything done in connection therewith, incidental, consequential, special, general, exemplary damages, proceedings, costs, damages, expenses (including legal fees), willful default, fraud such as the performance or breach thereof, or from the manufacture, sale, delivery, resale, installation or use of its obligation any goods or services covered by or furnished under this Agreement (including without limitation, loss of revenue or goodwill, or anticipated profits or lost business) even if the Company have been advised of the possibility of such damages and the Company may deduct any amount to indemnify the Company and/or its affiliated entities from any outstanding Partner Commission. Further, notwithstanding anything to the contrary contained in this agreement, in no event shall the Company’s cumulative liability to the Partner Contract whether arising out of or related to this agreementstatute, whether based in contract, negligence, strict liabilityliability in tort, tort or other legal under any warranty, or equitable theoryotherwise, and whether or not occasioned by FhG's negligence, shall not exceed 25% of the total commission fees paid price of each work package (i.e., system engineering, [*****] development and test equipment) affected by the action or inaction resulting in such liability and resulting from the willful misconduct or gross negligence of FhG. ***** Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the Partner under this Agreementomitted portions. 13.2. The Company makes no express or implied representations or warranties regarding the Company’s Services and Website or the products or services provided therein9.2 Notwithstanding any other provision of this Contract, neither Party shall under any implied warranties of the Company ability, fitness for a particular purpose, and non-infringement are expressly disclaimed and excluded. In addition, the Company make no representation that the operation of the Company’s Website shall be uninterrupted or error free, and we shall not circumstances be liable for special, incidental, indirect or consequential damages, such as, but not limited to, loss or damage of other property or equipment, loss of profits or revenue cost of capital, cost of purchased or replaced goods, or claims of customers or contractors of the consequences of any interruptions other Party for, but not limited to delays, penalties or errorsservice interruptions. 13.3. The Partner hereby agrees to indemnify 9.3 FhG shall indemnify, defend and hold harmless the Company, their Affiliated Entities and, directors, officers, employees, agents, shareholders, members, and other owners, Customer against any and all claimscosts or expenses, actionswith the exception of those costs identified in Article 9.2 above, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all , incurred by Customer as a result of legal actions brought against Customer by third parties caused by default of FhG in the performance of the foregoing hereinafter referred work under the Contract, subject to the limitation of liability set forth as “Losses”) insofar Clause 9.1 above. 9.4 Notwithstanding the foregoing, the Customer and FhG agree to a no-fault, no-subrogation inter-party waiver of liability under which each Party shall be responsible for any damage it sustains as such Losses (or actions a result of damage to its own property and employees, including death, while involved in respect thereof) arise out the conduct of the breach activities which are the subject of this Contract, which damage is not caused by the other Party. It is the intent of the Terms and Conditions Parties that this inter-party waiver of liability be construed broadly to achieve the present Agreement and/or any Operational Agreements and/or are based on any claim of: a) the Company’s use of the Partner trademarks infringes on any trademark, trade name, brand name, service mark, copyright, license, intellectual property, or other proprietary right of any third party; b) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by the Partner herein; or c) any claim related to the Partner’s site, including, without limitation, content therein not attributable to the Companyintended objectives. 13.4. Upon notice from the Company, the Partner will promptly pay to the Company any amount owed to the Company under this paragraph. If the Partner fails to make such payment, the Company, by action of an officer, will be entitled to collect any such amount by any available means, including but not be limited to charging any proprietary account of the Partner or offsetting any amount owed to the Partner by the Company. The Company is authorized to transfer, use, apply, sell, re-hypothecate or draw upon, as the case may be, any of the funds, securities or property in any proprietary account of the Partner whenever the Company deems it necessary to pay or satisfy amounts owed to it under this Agreement or any other agreement with the Partner. Further, the Company is authorized to withhold all commissions earned and payable to the Partner to the extent of any deficits in any and all accounts that the Partner has introduced to the Company. The rights described in this paragraph are in addition to all other rights and remedies available to the Company under this Agreement. 13.5. The Affiliate further agrees that, if any person or entity has instituted a claim, suit, action, arbitration or other proceeding against the Company and/or any Affiliated Entities, or threatened to do so, or the Company, in its reasonable judgment, believes may be instituted or threatened, which proceeding reasonably could expose the Company and/or any other Affiliated Entities to any potential liability, loss, cost, or expense which is the obligation of the Partner under this Agreement, the Company is authorized to withhold an amount equal to the amount of any such claim from any amounts owed to the Partner or from any other funds, securities or other property owned by the Partner on deposit with the Company for any purpose (including, without limitation, funds, securities or other property in any proprietary account of the Partner) until such has been fully resolved to the satisfaction of the Company. However, in the event that the intends to withhold the amount of any potential liability, loss, cost or expense as set forth above, the Company will notify the Partner of the amount to be withheld and the nature of the claim, and the Partner may participate in defense of the claim through counsel chosen by it at its own expense.

Appears in 2 contracts

Samples: Firm Fixed Price Contract (Xm Satellite Radio Holdings Inc), Firm Fixed Price Contract (Xm Satellite Radio Holdings Inc)

Indemnity and Limitation of Liability. 13.1You hereby agree to hold Wealthsimple, its directors, officers, shareholders, employees and agents harmless and to release such parties from any and all damages, actions, causes of action, debits, charges, expenses, or other losses arising out of the operation of the Accounts, except for any losses, costs or damage arising out of or in connection with Wealthsimple’s breach of the Standard of Care and you further agree to indemnify such parties and hold them harmless for all damages, actions, causes of actions, causes of action, debits, charges, expenses, or other losses arising out of or in connection with your illegal or fraudulent use of the Accounts. The Company shall not be liable to Neither Wealthsimple, its directors, officers, shareholders, employees and agents will have any liability arising during the Partner with respect to any subject matter term of this Agreement under for any contractclaims for direct damages to you for errors or omissions that occur in the course of, negligence, tort, strict liabilityarise from, or other legal which are related to, transactions by us for your Wealthsimple Account, unless such errors or equitable principle omissions are caused by the failure of Wealthsimple to meet the Standard of Care. Neither the Portfolio Manager, its directors, officers, shareholders, employees and agents will have any liability to you in any circumstances for any indirect, incidental, consequential, specialspecial or punitive damages. You acknowledge that your investment objectives, general, exemplary damages, proceedings, costs, damages, expenses (including legal fees), willful default, fraud or breach of its obligation under this Agreement (including without limitation, loss of revenue or goodwill, or anticipated profits or lost business) even if the Company have been advised of the possibility of such damages and the Company may deduct any amount stated in an Investor Policy Statement are to indemnify the Company and/or its affiliated entities from any outstanding Partner Commission. Further, notwithstanding anything to the contrary contained in this agreement, in no event shall the Company’s cumulative liability to the Partner arising out of or related to this agreement, whether based in contract, negligence, strict liability, tort or other legal or equitable theory, exceed the total commission fees paid to the Partner under this Agreement. 13.2. The Company makes no express or implied representations or warranties regarding the Company’s Services and Website or the products or services provided therein, any implied warranties of the Company ability, fitness for a particular purposebe considered only as goals, and non-infringement are expressly disclaimed and excluded. In addition, the Company make no representation that the operation of the Company’s Website shall be uninterrupted or error free, and we shall not be liable for the consequences of any interruptions or errors. 13.3. The Partner hereby agrees to indemnify and hold harmless the Company, their Affiliated Entities and, directors, officers, employees, agents, shareholders, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions while Wealthsimple will invest Account Assets only in respect thereof) arise out of the breach of the Terms and Conditions of the present Agreement and/or any Operational Agreements and/or are based on any claim of: a) the Company’s use of the Partner trademarks infringes on any trademark, trade name, brand name, service mark, copyright, license, intellectual property, or other proprietary right of any third party; b) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by the Partner herein; or c) any claim related to the Partner’s site, including, without limitation, content therein not attributable to the Company. 13.4. Upon notice from the Company, the Partner will promptly pay to the Company any amount owed to the Company under this paragraph. If the Partner fails to make such payment, the Company, by action of an officer, will be entitled to collect any such amount by any available means, including but not be limited to charging any proprietary account of the Partner or offsetting any amount owed to the Partner by the Company. The Company is authorized to transfer, use, apply, sell, re-hypothecate or draw upon, as the case may be, any of the funds, those securities or property in any proprietary account of the Partner whenever the Company deems it necessary to pay or satisfy amounts owed to it under this Agreement or any other agreement with the Partner. Further, the Company is authorized to withhold all commissions earned and payable to the Partner to the extent of any deficits in any and all accounts that the Partner has introduced to the Company. The rights described in this paragraph are in addition to all other rights and remedies available to the Company under this Agreement. 13.5. The Affiliate further agrees that, if any person or entity has instituted a claim, suit, action, arbitration or other proceeding against the Company and/or any Affiliated Entities, or threatened to do so, or the Companywhich, in its reasonable judgment, believes may be instituted or threatened, which proceeding reasonably could expose the Company and/or any are suitable for an Account considering (among other Affiliated Entities to any potential liability, loss, cost, or expense which is the obligation of the Partner under this Agreementthings) such objectives, the Company is authorized to withhold an amount equal to Portfolio Manager does not guarantee the amount results of any such claim from any amounts owed to the Partner or from any other funds, securities or other property owned by the Partner on deposit with the Company for any purpose (including, without limitation, funds, securities or other property in any proprietary account of the Partner) until such has been fully resolved to the satisfaction of the Company. However, investment and will not be responsible in the event that some or all of such investment objectives are not realized. Disclosure regarding investment risk is described in the intends to withhold Investment Risk Disclosure section of Wealthsimple’s website which is available here: xxxxx://xxx.xxxxxxxxxxxx.xxx/en-ca/legal/disclosure. You acknowledge that you have read and understand such disclosure. If the amount Account Assets are only a portion of your total assets, we will not be responsible for (a) any potential liability, loss, cost or expense as set forth above, the Company will notify the Partner of your assets outside of the amount to be withheld and the nature Account Assets; or (b) diversifying all of the claim, and the Partner may participate in defense of the claim through counsel chosen by it at its own expenseyour assets.

Appears in 2 contracts

Samples: Discretionary Management Agreement, Discretionary Management Agreement

Indemnity and Limitation of Liability. 13.1. The Any Member, each Manager and any Person acting on behalf of the Company (each an “Indemnified Person”), (a) shall be held harmless, defended and indemnified by the Company from and against any cost, claim, liability, loss, damage or expense (including, without limitation, all attorneys’ fees and expenses, expert witness fees and expenses, court costs and costs of investigation) suffered or incurred by an Indemnified Person by virtue of such Indemnified Person’s acting as or on behalf of the Manager or the Company in connection with the Company’s activities and (b) shall not be liable to the Partner with respect to any subject matter of this Agreement under any contract, negligence, tort, strict liability, or other legal or equitable principle for any indirect, incidental, consequential, special, general, exemplary damages, proceedings, costs, damages, expenses (including legal fees), willful default, fraud or breach of its obligation under this Agreement (including without limitation, loss of revenue or goodwill, or anticipated profits or lost business) even if the Company have been advised of the possibility of such damages and the Company may deduct any amount to indemnify the Company and/or its affiliated entities from any outstanding Partner Commission. Further, notwithstanding anything to the contrary contained in this agreement, in no event shall the Company’s cumulative liability to the Partner arising out of or related to this agreement, whether based in contract, negligence, strict liability, tort or other legal or equitable theory, exceed the total commission fees paid to the Partner under this Agreement. 13.2. The Company makes no express or implied representations or warranties regarding the Company’s Services and Website or the products or services provided therein, any implied warranties of the Company ability, fitness for a particular purpose, and non-infringement are expressly disclaimed and excluded. In addition, the Company make no representation that the operation of the Company’s Website shall be uninterrupted or error free, and we shall not be liable for the consequences of any interruptions or errors. 13.3. The Partner hereby agrees to indemnify and hold harmless the Company, their Affiliated Entities and, directors, officers, employees, agents, shareholders, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of the breach of the Terms and Conditions of the present Agreement and/or any Operational Agreements and/or are based on any claim of: a) the Company’s use of the Partner trademarks infringes on any trademark, trade name, brand name, service mark, copyright, license, intellectual property, or other proprietary right of any third party; b) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by the Partner herein; or c) any claim related to the Partner’s site, including, without limitation, content therein not attributable to the Company. 13.4. Upon notice from the Company, the Partner will promptly pay to the Company any amount owed to the Company under this paragraph. If the Partner fails to make such payment, the Company, by action of an officer, will be entitled to collect any such amount by any available means, including but not be limited to charging any proprietary account of the Partner or offsetting any amount owed to the Partner by the Company. The Company is authorized to transfer, use, apply, sell, re-hypothecate or draw upon, as the case may be, any of the funds, securities or property in any proprietary account of the Partner whenever the Company deems it necessary to pay or satisfy amounts owed to it under this Agreement Manager or any other agreement with the Partner. FurtherMember for any cost, the Company is authorized to withhold all commissions earned and payable to the Partner to the extent of any deficits in any and all accounts that the Partner has introduced to the Company. The rights described in this paragraph are in addition to all other rights and remedies available to the Company under this Agreement. 13.5. The Affiliate further agrees that, if any person or entity has instituted a claim, suit, action, arbitration or other proceeding against the Company and/or any Affiliated Entities, or threatened to do so, or the Company, in its reasonable judgment, believes may be instituted or threatened, which proceeding reasonably could expose the Company and/or any other Affiliated Entities to any potential liability, loss, damage or expense suffered or incurred in connection with the Company’s activities; provided that (i) if such cost, claim, liability, loss, damage or expense which is the obligation arises out of the Partner under this Agreement, the Company is authorized to withhold an amount equal to the amount any action or inaction of any such claim from Indemnified Person, such course of conduct must not have constituted gross negligence, or willful misconduct by such Indemnified Person; (ii) the Company shall, on demand, pay all costs, expenses, attorneys’ fees and expert witness fees as and when incurred by an Indemnified Person in connection with any amounts owed such cost, claim, liability, loss, damage or expense if the Indemnified Person undertakes to repay the same to the Partner or from any other funds, securities or other property owned by the Partner on deposit with the Company for any purpose (including, without limitation, funds, securities or other property in any proprietary account of the Partner) until such has been fully resolved to the satisfaction of the Company. However, in the event that it is finally determined by a court of competent jurisdiction that the intends Indemnified Person shall not have been entitled to withhold indemnification hereunder; and (iii) the amount rights granted under this section shall not be affected by, and shall survive, any dissolution or termination of the Company and the death, disability, incapacity, resignation, withdrawal, insolvency or dissolution of any potential liability, loss, cost Manager or expense as set forth above, the Company will notify the Partner of the amount to be withheld and the nature of the claim, and the Partner may participate in defense of the claim through counsel chosen by it at its own expenseMember.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Innovaro, Inc.)

Indemnity and Limitation of Liability. 13.1. 8.1 The Company Partner shall not be liable to the Partner with respect to any subject matter of this Agreement under any contract, negligence, tort, strict liability, or other legal or equitable principle for any indirect, incidental, consequential, special, general, exemplary damages, proceedings, costs, damages, expenses indemnify and hold OANDA and its Connected Persons harmless from all costs (including legal fees), willful default, fraud or breach of its obligation under this Agreement (including without limitation, loss of revenue or goodwill, or anticipated profits or lost business) even if the Company have been advised of the possibility of such damages liabilities and the Company may deduct any amount to indemnify the Company and/or its affiliated entities from any outstanding Partner Commission. Further, notwithstanding anything to the contrary contained in this agreement, in no event shall the Company’s cumulative liability to the Partner claims arising out of or related to this agreement, whether based in contract, negligence, strict liability, tort or other legal or equitable theory, exceed the total commission fees paid to the Partner under this Agreement. 13.2. The Company makes no express or implied representations or warranties regarding the Company’s Services and Website or the products or services provided therein, any implied warranties of the Company ability, fitness for a particular purpose, and non-infringement are expressly disclaimed and excluded. In addition, the Company make no representation that the operation of the Company’s Website shall be uninterrupted or error free, and we shall not be liable for the consequences of any interruptions or errors. 13.3. The Partner hereby agrees to indemnify and hold harmless the Company, their Affiliated Entities and, directors, officers, employees, agents, shareholders, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of the breach of the Terms and Conditions of the present Agreement and/or any Operational Agreements and/or are based on any claim offrom: a) the Company’s use of the Partner trademarks infringes on 8.1.1 any trademark, trade name, brand name, service mark, copyright, license, intellectual property, or other proprietary right of any third party; b) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by the Partner herein; orof the terms of this Agreement; c) 8.1.2 the Partner’s misuse of the Marketing Materials; 8.1.3 any claim related to the Partner’s sitewebsite, operations or services; and/or 8.1.4 the Partner Services to the extent such activities result in any breach of Applicable Law. 8.2 For the avoidance of doubt, the Partner shall indemnify OANDA for any and all direct or indirect losses, costs, fines or penalties how-so-ever arising which OANDA incurs as a result of any breach by the Partner of its obligations under this Agreement. 8.3 In no event shall OANDA, any of its affiliates, its parent corporation or other related entities, successors and permitted assigns, and their respective officers, directors, shareholders, employees, service providers or suppliers (collectively, the “OANDA Indemnified Parties”) be liable for lost profits or data, or any special, incidental or consequential damages arising out of or in connection with the Partner Services or this Agreement (however arising, including negligence), and including, without limitation, content therein not attributable to the Companyas a result of any failure or malfunction of any software, hardware, communication technology or other system. 13.4. Upon notice from 8.4 To the Companyfullest extent permitted under Applicable Law, the Partner will promptly pay to the Company any amount owed to the Company under this paragraph. If the Partner fails to make such paymentOANDA disclaims all warranties, the Company, by action of an officer, will be entitled to collect any such amount by any available meansexpress or implied, including but not be limited to charging any proprietary account all implied warranties of the Partner or offsetting any amount owed non-infringement, merchantability and fitness for a particular purpose, with respect to the marketing partner program, and that the OANDA website(s) and links in the website(s) are free of errors, viruses or security threats. 8.5 The Partner by agrees to indemnify and hold the Company. The Company is authorized to transfer, use, apply, sell, re-hypothecate or draw upon, as the case may be, any of the funds, securities or property in any proprietary account of the Partner whenever the Company deems it necessary to pay or satisfy amounts owed to it under this Agreement or any other agreement with the Partner. Further, the Company is authorized to withhold all commissions earned OANDA Indemnified Parties free and payable to the Partner to the extent of any deficits in harmless from any and all accounts that the Partner has introduced to the Company. The rights described claims, liabilities, or damages, including attorneys’ fees and costs incurred in this paragraph are in addition to all other rights and remedies available to the Company under this Agreement. 13.5. The Affiliate further agrees that, if defense of any person or entity has instituted a claim, suit, action, arbitration or other proceeding against including the Company and/or costs of enforcing any Affiliated Entities, or threatened right to do so, or the Company, in its reasonable judgment, believes may be instituted or threatened, which proceeding reasonably could expose the Company and/or any other Affiliated Entities to any potential liability, loss, cost, or expense which is the obligation of the Partner indemnification under this Agreement, and the Company is authorized cost of pursuing insurance coverage, related to withhold an amount equal to the amount of or arising from (i) any such claim from any amounts owed to the Partner or from any other funds, securities or other property owned breach by the Partner on deposit with of any of its obligations under this Agreement, and any of its covenants, representations or warranties hereunder, and/or (ii) any allegations that the Company for any purpose Partner is infringing the intellectual property rights (including, without limitation, fundscopyrights, securities patent rights, trade secrets, trademarks, service marks, and rights of publicity) of a third party. 8.6 OANDA shall not be responsible for any losses resulting from a failure of the Partner to inform OANDA about changes relating to personal data and other information provided to OANDA in connection with the performance of this Agreement or for damages resulting from any OANDA action based on incorrect or outdated information provided by the Partner. 8.7 The liability of the OANDA Indemnified Parties to the Partner or any third parties in any circumstance is limited to the greater of: (a) the aggregate of the Fees paid by OANDA to the Partner in the twelve (12) months prior to the act or omission giving rise to the liability; and (b) USD 2,000. 8.8 The Partner shall promptly inform OANDA of any information known to the Partner related to any Target Users that may reasonably lead to a claim, demand or liability of or against OANDA by any third party. 8.9 Neither Party shall be liable to the other for any delay or failure to perform its obligations under this Agreement if such delay or failure arises from a cause beyond the reasonable control of and is not the fault of such Party, including but not limited to labor disputes, strikes, industrial disturbances, acts of terrorism, floods, lightening, utility or communication failures, earthquakes or other property in any proprietary account of casualty. If such a force majeure event occurs, the Partner) until such has been fully resolved non-performing Party is excused from whatever performance is prevented by the force majeure event to the satisfaction of the Company. However, in the extent prevented for so long as such event that the intends to withhold the amount of any potential liability, loss, cost or expense as set forth above, the Company will notify the Partner of the amount to be withheld and the nature of the claim, and the Partner may participate in defense of the claim through counsel chosen by it at its own expensepersists.

Appears in 1 contract

Samples: Marketing Partner Agreement

Indemnity and Limitation of Liability. 13.18.1. The Company Affiliate shall not be liable to the Partner with respect to any subject matter of this Agreement under any contractindemnify and hold DP Funded and its affiliates harmless from all costs, negligencelosses, tort, strict liability, or other legal or equitable principle for any indirect, incidental, consequential, special, general, exemplary damages, proceedings, costsliabilities, damages, expenses proceedings (including legal fees), willful defaultliabilities and claims arising from: 8.1.1. any breach by the Affiliate of the terms of this Agreement; 8.1.2. the Affiliate’s misuse of the Marketing Materials; 8.1.3. claim related to the Affiliate’s website, fraud operations or services; and/or 8.1.4. the Affiliate Services to the extent such activities result in any breach of Applicable Law. 8.2. For the avoidance of doubt, the Affiliate shall indemnify DP Funded for any and all direct or indirect losses, costs, fines or penalties how-so-ever arising which DP Funded incurs as a result of any breach by the Affiliate of its obligation under this Agreement (including without limitation, loss of revenue or goodwill, or anticipated profits or lost business) even if the Company have been advised of the possibility of such damages and the Company may deduct any amount to indemnify the Company and/or its affiliated entities from any outstanding Partner Commission. Further, notwithstanding anything to the contrary contained in this agreement, in no event shall the Company’s cumulative liability to the Partner arising out of or related to this agreement, whether based in contract, negligence, strict liability, tort or other legal or equitable theory, exceed the total commission fees paid to the Partner obligations under this Agreement. 13.28.3. The Company makes In no event shall DP Funded, its parent corporation or other related entities, successors and permitted assigns, and their respective officers, directors, shareholders, employees, service providers or suppliers (collectively, the “DP Funded Indemnified Parties”) be liable for lost profits or data, or any special, incidental or consequential damages arising out of or in connection with the Affiliate Services or this Agreement (however arising, including negligence), and including, without limitation, as a result of any failure or malfunction of any software, hardware, communication technology or other system. 8.4. To the fullest extent permitted under Applicable Law, DP Funded disclaims all warranties, express or implied representations or warranties regarding the Company’s Services and Website or the products or services provided thereinimplied, any including but not limited to all implied warranties of the Company abilitynon-infringement, merchantability and fitness for a particular purpose, with respect to the Affiliate Program, and non-infringement are expressly disclaimed and excluded. In addition, the Company make no representation that the operation DP Funded website(s) and links in the website(s) are free of the Company’s Website shall be uninterrupted errors, viruses or error free, and we security threats. 8.5. DP Funded shall not be liable responsible for any losses resulting from a failure of the consequences Affiliate to inform DP Funded about changes relating to personal data and other information provided to DP Funded in connection with the performance of this Agreement or for damages resulting from any interruptions DP Funded action based on incorrect or errorsoutdated information provided by the Affiliate. 13.38.6. The Partner hereby agrees to indemnify and hold harmless the Company, their Affiliated Entities and, directors, officers, employees, agents, shareholders, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of the breach of the Terms and Conditions of the present Agreement and/or any Operational Agreements and/or are based on any claim of: a) the Company’s use of the Partner trademarks infringes on any trademark, trade name, brand name, service mark, copyright, license, intellectual property, or other proprietary right of any third party; b) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by the Partner herein; or c) any claim related Neither party shall be liable to the Partner’s site, including, without limitation, content therein not attributable other for any delay or failure to the Company. 13.4. Upon notice from the Company, the Partner will promptly pay to the Company any amount owed to the Company perform its obligations under this paragraph. If Agreement if such delay or failure arises from a cause beyond the Partner fails to make such payment, reasonable control of and is not the Company, by action fault of an officer, will be entitled to collect any such amount by any available meanseither party of this Agreement, including but not be limited to charging any proprietary account labor disputes, strikes, industrial disturbances, acts of terrorism, floods, lightening, utility or communication failures, earthquakes or other casualty. If such a force majeure event occurs, the Partner or offsetting any amount owed to the Partner non-performing Party is excused from whatever performance is prevented by the Company. The Company is authorized to transfer, use, apply, sell, re-hypothecate or draw upon, as the case may be, any of the funds, securities or property in any proprietary account of the Partner whenever the Company deems it necessary to pay or satisfy amounts owed to it under this Agreement or any other agreement with the Partner. Further, the Company is authorized to withhold all commissions earned and payable to the Partner force majeure event to the extent of any deficits in any and all accounts that the Partner has introduced to the Company. The rights described in this paragraph are in addition to all other rights and remedies available to the Company under this Agreementprevented for so long as such event persists. 13.5. The Affiliate further agrees that, if any person or entity has instituted a claim, suit, action, arbitration or other proceeding against the Company and/or any Affiliated Entities, or threatened to do so, or the Company, in its reasonable judgment, believes may be instituted or threatened, which proceeding reasonably could expose the Company and/or any other Affiliated Entities to any potential liability, loss, cost, or expense which is the obligation of the Partner under this Agreement, the Company is authorized to withhold an amount equal to the amount of any such claim from any amounts owed to the Partner or from any other funds, securities or other property owned by the Partner on deposit with the Company for any purpose (including, without limitation, funds, securities or other property in any proprietary account of the Partner) until such has been fully resolved to the satisfaction of the Company. However, in the event that the intends to withhold the amount of any potential liability, loss, cost or expense as set forth above, the Company will notify the Partner of the amount to be withheld and the nature of the claim, and the Partner may participate in defense of the claim through counsel chosen by it at its own expense.

Appears in 1 contract

Samples: Affiliate Agreement

Indemnity and Limitation of Liability. 13.1. The Company Licensee shall not be liable to the Partner with respect to any subject matter of this Agreement under any contract, negligence, tort, strict liability, or other legal or equitable principle for any indirect, incidental, consequential, special, general, exemplary damages, proceedingsindemnify AstraZeneca against all liabilities, costs, damagesexpenses, expenses (including legal fees), willful default, fraud or breach of its obligation under this Agreement (including without limitation, loss of revenue or goodwill, or anticipated profits or lost business) even if the Company have been advised of the possibility of such damages and the Company may deduct any amount to indemnify the Company and/or its affiliated entities from any outstanding Partner Commission. Further, notwithstanding anything to the contrary contained in this agreement, in no event shall the Company’s cumulative liability to the Partner losses suffered or incurred by AstraZeneca arising out of or related in connection with the Licensee's exercise of its rights granted under this XXXX or any breach by the Licensee of the terms of this XXXX, including but not limited to this agreementany breach of AstraZeneca’s Intellectual Property Rights. This indemnity shall not cover AstraZeneca to the extent that any claims result from AstraZeneca’s negligence or wilful misconduct. AstraZeneca shall not in any circumstances have any liability for any losses or damages which may be suffered by the Licensee (or any person claiming under or through the Licensee), whether based the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, strict liability, tort which fall within any of the following categories: special damage even if AstraZeneca was aware of the circumstances in which such special damage could arise; loss of profits; loss of anticipated savings; loss of business opportunity; loss of goodwill; loss or other legal or equitable theory, exceed the total commission fees paid corruption of data. The exclusions in Clause 13.2 shall apply to the Partner under this Agreement. 13.2. The Company makes no express fullest extent permissible at law, but the parties do not exclude liability for: (a) death or implied representations or warranties regarding personal injury caused by the Company’s Services and Website or the products or services provided therein, any implied warranties negligence of the Company abilityparty, fitness for a particular purpose, and non-infringement are expressly disclaimed and excluded. In addition, the Company make no representation that the operation of the Company’s Website shall be uninterrupted or error free, and we shall not be liable for the consequences of any interruptions or errors. 13.3. The Partner hereby agrees to indemnify and hold harmless the Company, their Affiliated Entities and, directors, its officers, employees, contractors or agents, shareholders, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses ; (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of the breach of the Terms and Conditions of the present Agreement and/or any Operational Agreements and/or are based on any claim of: a) the Company’s use of the Partner trademarks infringes on any trademark, trade name, brand name, service mark, copyright, license, intellectual property, or other proprietary right of any third party; b) any misrepresentation of a representation fraud or warranty fraudulent misrepresentation; or breach of a covenant and agreement made by the Partner herein; or (c) any claim related other liability which may not be excluded by law. Subject to clause 13.2 the aggregate liability of AstraZeneca to the Partner’s site, including, without limitation, content therein not attributable to the Company. 13.4. Upon notice from the Company, the Partner will promptly pay to the Company any amount owed to the Company under this paragraph. If the Partner fails to make such payment, the Company, by action of an officer, will be entitled to collect any such amount by any available means, Licensee whether in contract (including but not be limited to charging any proprietary account of the Partner or offsetting any amount owed to the Partner by the Company. The Company is authorized to transfer, use, apply, sell, re-hypothecate or draw upon, as the case may be, any of the funds, securities or property in any proprietary account of the Partner whenever the Company deems it necessary to pay or satisfy amounts owed to it under this Agreement or any other agreement with the Partner. Further, the Company is authorized to withhold all commissions earned and payable to the Partner to the extent of any deficits in any and all accounts that the Partner has introduced to the Company. The rights described in this paragraph are in addition to all other rights and remedies available to the Company under this Agreement. 13.5. The Affiliate further agrees that, if any person or entity has instituted a claim, suit, action, arbitration or other proceeding against the Company and/or any Affiliated Entities, or threatened to do so, or the Company, in its reasonable judgment, believes may be instituted or threatened, which proceeding reasonably could expose the Company and/or any other Affiliated Entities to any potential liability, loss, cost, or expense which is the obligation of the Partner under this Agreement, the Company is authorized to withhold an amount equal to the amount of any such claim from any amounts owed to the Partner or from any other funds, securities or other property owned by the Partner on deposit with the Company for damages for any purpose deliberate repudiatory acts), tort (includingincluding negligence), without limitationfor breach of statutory duty or otherwise, funds, securities arising under or other property in any proprietary account of the Partner) until such has been fully resolved to the satisfaction of the Company. However, in the event that the intends to withhold the amount of any potential liability, loss, cost or expense as set forth above, the Company will notify the Partner of the amount to be withheld and the nature of the claim, and the Partner may participate in defense of the claim through counsel chosen by it at its own expenseconnection with this XXXX shall not exceed £100.

Appears in 1 contract

Samples: End User License Agreement

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Indemnity and Limitation of Liability. 13.1. 9.1 The Driver shall at all times indemnify, keep indemnified and hold harmless the Company shall not and its officers and directors from and against all costs (including the cost of enforcement), expenses, liabilities (including any tax liability), injuries, direct loss, damages, claims, demands, proceedings or legal costs and judgments incurred or suffered by the Company or for which the Driver may be liable to the Partner with respect to any subject matter of this Agreement under any contract, negligence, tort, strict liability, claim relating to the Services provided by the Driver and/ or other legal or equitable principle for any indirect, incidental, consequential, special, general, exemplary damages, proceedings, costs, damages, expenses (including legal fees), willful default, fraud or arising from a breach of its obligation under this Agreement (including without limitationthe Driver’s representations, loss of revenue warranties or goodwill, undertakings contained herein or anticipated profits arising from the acts or lost business) even if the Company have been advised omissions of the possibility of such damages and the Company may deduct any amount Driver or its respective employees, agents and/or representatives pursuant to indemnify the Company and/or its affiliated entities from any outstanding Partner Commission. Further, notwithstanding anything to the contrary contained in this agreement, in no event shall the Company’s cumulative liability to the Partner arising out of or related to this agreement, whether based in contract, negligence, strict liability, tort or other legal or equitable theory, exceed the total commission fees paid to the Partner under this Agreement. 13.2. 9.2 The Company makes no express or implied representations or warranties regarding the Company’s Services and Website or the products or services provided therein, any implied warranties of the Company ability, fitness for a particular purpose, and non-infringement are expressly disclaimed and excluded. In addition, the Company make no representation that the operation of the Company’s Website shall be uninterrupted or error free, and we shall not be liable for the consequences of any interruptions or errors. 13.3. The Partner Driver hereby agrees to defend, indemnify and hold harmless the Company, their Affiliated Entities and, directors, officers, employees, agents, shareholders, members, Company from and other owners, against any and all claimssuits, actions, claims, demands, liabilitiesjudgments, debts, obligations or rights of action of any kind or nature relating to the use of the Trademark by the Driver in combination with his trademark/logo and all costs, actual or consequential damages, losses, damagescharges or expenses, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any , incurred directly or all of indirectly by the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions Company in respect thereof) arise connection therewith, arising out of the breach rights granted to the Driver under clause 4.5 hereinabove or any acts, omissions, statements or representations of any employee, agent, officer or director of the Terms and Conditions Driver relating thereto (collectively called “Claims”). The Company shall notify the Driver of any such Claims promptly upon receiving notice or being informed of the present Agreement and/or any Operational Agreements and/or are based on any claim of: a) the Company’s use of the Partner trademarks infringes on any trademark, trade name, brand name, service mark, copyright, license, intellectual property, or other proprietary right of any third party; b) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by the Partner herein; or c) any claim related to the Partner’s site, including, without limitation, content therein not attributable to the Company. 13.4existence thereof. Upon such notice from the Company, the Partner will Driver shall promptly pay take such action as may be necessary to protect and defend the Company any amount owed to against such Claims and shall indemnify the Company under this paragraph. If the Partner fails to make such paymentagainst any losses, the Company, by action of an officer, will be entitled to collect any such amount by any available means, including but costs or expenses incurred in connection therewith. 9.3 The Company shall not be limited to charging any proprietary account of the Partner or offsetting any amount owed to the Partner by the Company. The Company is authorized to transfer, use, apply, sell, re-hypothecate or draw upon, as the case may be, any of the funds, securities or property in any proprietary account of the Partner whenever the Company deems it necessary to pay or satisfy amounts owed to it under this Agreement or any other agreement with the Partner. Further, the Company is authorized to withhold all commissions earned and payable to the Partner to the extent of any deficits in held responsible for any and all accounts that the Partner has introduced suits, actions, claims, demands, judgments, debts, obligations or rights of action of any kind or nature relating to the Company. The rights described in this paragraph are in addition to all other rights and remedies available to the Company under this Agreement. 13.5. The Affiliate further agrees that, if any person or entity has instituted a claim, suit, action, arbitration or other proceeding against the Company and/or any Affiliated Entities, or threatened to do so, or the Company, in its reasonable judgment, believes may be instituted or threatened, which proceeding reasonably could expose the Company and/or any other Affiliated Entities to any potential liability, loss, cost, or expense which is the obligation use of the Partner under this Agreement, the Company is authorized to withhold an amount equal to the amount of any such claim from any amounts owed to the Partner or from any other funds, securities or other property owned by the Partner on deposit with the Company for any purpose (including, without limitation, funds, securities or other property in any proprietary account trademark/logo of the Partner) until such has been fully resolved to the satisfaction of the Company. However, in the event that the intends to withhold the amount of any potential liability, loss, cost or expense as set forth above, the Company will notify the Partner of the amount to be withheld and the nature of the claim, and the Partner may participate in defense of the claim through counsel chosen by it at its own expenseDriver.

Appears in 1 contract

Samples: Agreement With Driver/Ambulance Owner

Indemnity and Limitation of Liability. 13.1. 8.1 The Company Partner shall not be liable to the Partner with respect to any subject matter of this Agreement under any contract, negligence, tort, strict liability, or other legal or equitable principle for any indirect, incidental, consequential, special, general, exemplary damages, proceedings, costs, damages, expenses indemnify and hold OANDA and its Connected Persons harmless from all costs (including legal fees), willful default, fraud or breach of its obligation under this Agreement (including without limitation, loss of revenue or goodwill, or anticipated profits or lost business) even if the Company have been advised of the possibility of such damages liabilities and the Company may deduct any amount to indemnify the Company and/or its affiliated entities from any outstanding Partner Commission. Further, notwithstanding anything to the contrary contained in this agreement, in no event shall the Company’s cumulative liability to the Partner claims arising out of or related to this agreement, whether based in contract, negligence, strict liability, tort or other legal or equitable theory, exceed the total commission fees paid to the Partner under this Agreement. 13.2. The Company makes no express or implied representations or warranties regarding the Company’s Services and Website or the products or services provided therein, any implied warranties of the Company ability, fitness for a particular purpose, and non-infringement are expressly disclaimed and excluded. In addition, the Company make no representation that the operation of the Company’s Website shall be uninterrupted or error free, and we shall not be liable for the consequences of any interruptions or errors. 13.3. The Partner hereby agrees to indemnify and hold harmless the Company, their Affiliated Entities and, directors, officers, employees, agents, shareholders, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of the breach of the Terms and Conditions of the present Agreement and/or any Operational Agreements and/or are based on any claim offrom: a) the Company’s use of the Partner trademarks infringes on 8.1.1 any trademark, trade name, brand name, service mark, copyright, license, intellectual property, or other proprietary right of any third party; b) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by the Partner herein; orof the terms of this Agreement; c) 8.1.2 the Partner’s misuse of the Marketing Materials; 8.1.3 any claim related to the Partner’s sitewebsite, operations or services; and/or 8.1.4 the Partner Services to the extent such activities result in any breach of Applicable Law. 8.2 For the avoidance of doubt, the Partner shall indemnify OANDA for any and all direct or indirect losses, costs, fines or penalties how-so-ever arising which OANDA incurs as a result of any breach by the Partner of its obligations under this Agreement. 8.3 In no event shall OANDA, any OANDA Entity, its parent corporation or other related entities, successors and permitted assigns, and their respective officers, directors, shareholders, employees, service providers or suppliers (collectively, the “OANDA Indemnified Parties”) be liable for lost profits or data, or any special, incidental or consequential damages arising out of or in connection with the Partner Services or this Agreement (however arising, including negligence), and including, without limitation, content therein not attributable to the Companyas a result of any failure or malfunction of any software, hardware, communication technology or other system. 13.4. Upon notice from 8.4 To the Companyfullest extent permitted under Applicable Law, the Partner will promptly pay to the Company any amount owed to the Company under this paragraph. If the Partner fails to make such paymentOANDA disclaims all warranties, the Company, by action of an officer, will be entitled to collect any such amount by any available meansexpress or implied, including but not be limited to charging any proprietary account all implied warranties of the Partner or offsetting any amount owed non-infringement, merchantability and fitness for a particular purpose, with respect to the marketing partner program, and that the OANDA website(s) and links in the website(s) are free of errors, viruses or security threats. 8.5 The Partner by agrees to indemnify and hold the Company. The Company is authorized to transfer, use, apply, sell, re-hypothecate or draw upon, as the case may be, any of the funds, securities or property in any proprietary account of the Partner whenever the Company deems it necessary to pay or satisfy amounts owed to it under this Agreement or any other agreement with the Partner. Further, the Company is authorized to withhold all commissions earned OANDA Indemnified Parties free and payable to the Partner to the extent of any deficits in harmless from any and all accounts that the Partner has introduced to the Company. The rights described claims, liabilities, or damages, including attorneys’ fees and costs incurred in this paragraph are in addition to all other rights and remedies available to the Company under this Agreement. 13.5. The Affiliate further agrees that, if defense of any person or entity has instituted a claim, suit, action, arbitration or other proceeding against including the Company and/or costs of enforcing any Affiliated Entities, or threatened right to do so, or the Company, in its reasonable judgment, believes may be instituted or threatened, which proceeding reasonably could expose the Company and/or any other Affiliated Entities to any potential liability, loss, cost, or expense which is the obligation of the Partner indemnification under this Agreement, and the Company is authorized cost of pursuing insurance coverage, related to withhold an amount equal to the amount of or arising from (i) any such claim from any amounts owed to the Partner or from any other funds, securities or other property owned breach by the Partner on deposit with of any of its obligations under this Agreement, and any of its covenants, representations or warranties hereunder, and/or (ii) any allegations that the Company for any purpose Partner is infringing the intellectual property rights (including, without limitation, fundscopyrights, securities patent rights, trade secrets, trademarks, service marks, and rights of publicity) of a third party. 8.6 OANDA shall not be responsible for any losses resulting from a failure of the Partner to inform OANDA about changes relating to personal data and other information provided to OANDA in connection with the performance of this Agreement or other property for damages resulting from any OANDA action based on incorrect or outdated information provided by the Partner. 8.7 The liability of the OANDA Indemnified Parties to the Partner or any third parties in any proprietary account circumstance is limited to the greater of: (a) the aggregate of the Partner) until such has been fully resolved Fees paid by XXXXX to the satisfaction of the Company. However, Partner in the event that the intends to withhold the amount of any potential liability, loss, cost or expense as set forth above, the Company will notify the Partner of the amount to be withheld and the nature of the claim, and the Partner may participate in defense of the claim through counsel chosen by it at its own expense.twelve

Appears in 1 contract

Samples: Marketing Partner Agreement

Indemnity and Limitation of Liability. 13.1. 8.1 The Company Partner shall not be liable to the Partner with respect to any subject matter of this Agreement under any contract, negligence, tort, strict liability, or other legal or equitable principle for any indirect, incidental, consequential, special, general, exemplary damages, proceedings, costs, damages, expenses indemnify and hold OANDA and its Connected Persons harmless from all costs (including legal fees), willful default, fraud or breach of its obligation under this Agreement (including without limitation, loss of revenue or goodwill, or anticipated profits or lost business) even if the Company have been advised of the possibility of such damages liabilities and the Company may deduct any amount to indemnify the Company and/or its affiliated entities from any outstanding Partner Commission. Further, notwithstanding anything to the contrary contained in this agreement, in no event shall the Company’s cumulative liability to the Partner claims arising out of or related to this agreement, whether based in contract, negligence, strict liability, tort or other legal or equitable theory, exceed the total commission fees paid to the Partner under this Agreement. 13.2. The Company makes no express or implied representations or warranties regarding the Company’s Services and Website or the products or services provided therein, any implied warranties of the Company ability, fitness for a particular purpose, and non-infringement are expressly disclaimed and excluded. In addition, the Company make no representation that the operation of the Company’s Website shall be uninterrupted or error free, and we shall not be liable for the consequences of any interruptions or errors. 13.3. The Partner hereby agrees to indemnify and hold harmless the Company, their Affiliated Entities and, directors, officers, employees, agents, shareholders, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of the breach of the Terms and Conditions of the present Agreement and/or any Operational Agreements and/or are based on any claim offrom: a) the Company’s use of the Partner trademarks infringes on 8.1.1 any trademark, trade name, brand name, service mark, copyright, license, intellectual property, or other proprietary right of any third party; b) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by the Partner herein; orof the terms of this Agreement; c) 8.1.2 the Partner’s misuse of the Marketing Materials; 8.1.3 any claim related to the Partner’s sitewebsite, operations or services; and/or 8.1.4 the Partner Services to the extent such activities result in any breach of Applicable Law. 8.2 For the avoidance of doubt, the Partner shall indemnify OANDA for any and all direct or indirect losses, costs, fines or penalties how-so-ever arising which OANDA incurs as a result of any breach by the Partner of its obligations under this Agreement. 8.3 In no event shall OANDA, any OANDA Entity, its parent corporation or other related entities, successors and permitted assigns, and their respective officers, directors, shareholders, employees, service providers or suppliers (collectively, the “OANDA Indemnified Parties”) be liable for lost profits or data, or any special, incidental or consequential damages arising out of or in connection with the Partner Services or this Agreement (however arising, including negligence), and including, without limitation, content therein not attributable to the Companyas a result of any failure or malfunction of any software, hardware, communication technology or other system. 13.4. Upon notice from 8.4 To the Companyfullest extent permitted under Applicable Law, the Partner will promptly pay to the Company any amount owed to the Company under this paragraph. If the Partner fails to make such paymentOANDA disclaims all warranties, the Company, by action of an officer, will be entitled to collect any such amount by any available meansexpress or implied, including but not be limited to charging any proprietary account all implied warranties of the Partner or offsetting any amount owed non-infringement, merchantability and fitness for a particular purpose, with respect to the marketing partner program, and that the OANDA website(s) and links in the website(s) are free of errors, viruses or security threats. 8.5 The Partner by agrees to indemnify and hold the Company. The Company is authorized to transfer, use, apply, sell, re-hypothecate or draw upon, as the case may be, any of the funds, securities or property in any proprietary account of the Partner whenever the Company deems it necessary to pay or satisfy amounts owed to it under this Agreement or any other agreement with the Partner. Further, the Company is authorized to withhold all commissions earned OANDA Indemnified Parties free and payable to the Partner to the extent of any deficits in harmless from any and all accounts that the Partner has introduced to the Company. The rights described claims, liabilities, or damages, including attorneys’ fees and costs incurred in this paragraph are in addition to all other rights and remedies available to the Company under this Agreement. 13.5. The Affiliate further agrees that, if defense of any person or entity has instituted a claim, suit, action, arbitration or other proceeding against including the Company and/or costs of enforcing any Affiliated Entities, or threatened right to do so, or the Company, in its reasonable judgment, believes may be instituted or threatened, which proceeding reasonably could expose the Company and/or any other Affiliated Entities to any potential liability, loss, cost, or expense which is the obligation of the Partner indemnification under this Agreement, and the Company is authorized cost of pursuing insurance coverage, related to withhold an amount equal to the amount of or arising from (i) any such claim from any amounts owed to the Partner or from any other funds, securities or other property owned breach by the Partner on deposit with of any of its obligations under this Agreement, and any of its covenants, representations or warranties hereunder, and/or (ii) any allegations that the Company for any purpose Partner is infringing the intellectual property rights (including, without limitation, fundscopyrights, securities patent rights, trade secrets, trademarks, service marks, and rights of publicity) of a third party. 8.6 OANDA shall not be responsible for any losses resulting from a failure of the Partner to inform OANDA about changes relating to personal data and other information provided to OANDA in connection with the performance of this Agreement or other property for damages resulting from any OANDA action based on incorrect or outdated information provided by the Partner. 8.7 The liability of the OANDA Indemnified Parties to the Partner or any third parties in any proprietary account circumstance is limited to the greater of: (a) the aggregate of the Partner) until such has been fully resolved Fees paid by OANDA to the satisfaction of the Company. However, Partner in the event that the intends to withhold the amount of any potential liability, loss, cost or expense as set forth above, the Company will notify the Partner of the amount to be withheld and the nature of the claim, and the Partner may participate in defense of the claim through counsel chosen by it at its own expense.twelve

Appears in 1 contract

Samples: Marketing Partner Agreement

Indemnity and Limitation of Liability. 13.112.1. The Company shall not be liable to the Partner with respect to any subject matter of this Agreement under any contract, negligence, tort, strict liability, or other legal or equitable principle for any direct, indirect, incidental, consequential, special, general, exemplary damages, proceedings, costs, damages, expenses (including legal fees), willful default, fraud or breach of its obligation under this Agreement (including without limitation, loss of revenue or goodwill, or anticipated profits or lost business) even if the Company have been advised of the possibility of such damages and the Company may deduct any amount to indemnify the Company and/or its affiliated entities Affiliated Entities from any outstanding Partner Commissioncompensation. Further, notwithstanding anything to the contrary contained in this agreement, in no event shall the Company’s cumulative liability to the Partner arising out of or related to this agreementAgreement, whether based in contract, negligence, strict liability, tort or other legal or equitable theory, exceed the total commission fees paid to the Partner under this Agreement. 13.212.2. The Company makes no express or implied representations or warranties regarding the Company’s Products and Services and Website Company’s Website, or the products or services provided therein, any implied warranties of the Company ability, fitness for a particular purpose, and non-infringement are expressly disclaimed and excluded. In addition, the Company make no representation that the operation of the Company’s Website shall be uninterrupted or error free, and we the Company shall not be liable for the consequences of any interruptions or errors. 13.312.3. The Partner hereby agrees to indemnify and hold harmless the Company, their Affiliated Entities andEntities, including without limitation, its directors, officers, employees, agents, shareholders, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of the breach of the Terms and Conditions of the present Agreement and/or any Operational Agreements and/or are based on the behavior of the Partner and/or are based on any claim of:of (including but not limited to): a) the Company’s use of the Partner trademarks infringes on any trademark, trade name, brand name, service mark, copyright, license, intellectual property, or other proprietary right of any third party;. b) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by the Partner herein; or. c) any claim related to the Partner’s site, including, without limitation, content therein not attributable to the Company. 13.412.4. Upon notice from the Company, the Partner will promptly pay to the Company any amount owed to the Company under this paragraphClause. If the Partner fails to make such payment, the Company, by action of an officer, will be entitled to collect any such amount by any available means, including but not be limited to charging any proprietary account of the Partner or offsetting any amount owed to the Partner by the Company. The Company is authorized to transfer, use, apply, sell, re-hypothecate or draw upon, as the case may be, any of the funds, securities or property in any proprietary account of the Partner whenever the Company deems it necessary to pay or satisfy amounts owed to it under this Agreement or any other agreement with the Partner. Further, the Company is authorized to withhold all commissions earned and payable to the Partner to the extent of any deficits in any and all accounts that the Partner has introduced to the Companythe 12.5. The rights described in this paragraph are in addition to all other rights and remedies available to the Company under this Agreement. 13.5. The Affiliate Partner further agrees that, if any person or entity has instituted a claim, suit, action, arbitration or other proceeding against the Company and/or any Affiliated Entities, or threatened to do so, or the Company, in its reasonable judgment, believes may be instituted or threatened, which proceeding reasonably could expose the Company and/or any other Affiliated Entities to any potential liability, loss, cost, or expense which is the obligation of the Partner under this Agreement, the Company is authorized to withhold an amount equal to the amount of any such claim from any amounts owed to the Partner or from any other funds, securities or other property owned by the Partner on deposit with the Company for any purpose (including, without limitation, funds, securities or other property in any proprietary account of the Partner) until such has been fully resolved to the satisfaction of the Company. However, in the event that the intends to withhold the amount of any potential liability, loss, cost or expense as set forth above, the Company will notify the Partner of the amount to be withheld and the nature of the claim, and the Partner may participate in defense of the claim through counsel chosen by it at its own expense.

Appears in 1 contract

Samples: Partnership Agreement

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