Common use of Indemnity and Set Off Clause in Contracts

Indemnity and Set Off. 11.1 The Vendor covenants and agrees to indemnify and save harmless the Purchaser and each of its officers, directors, agents, affiliates and assignees (including, without limitation, any assignee pursuant to Section 14.11 hereof) (collectively, the "Purchaser Group")from and against any loss, liability, cost, expense or damage, including, without limiting the generality of the foregoing, all costs and expenses (including legal fees incurred in connection with any such loss or damage and in connection with any claim under this Article) suffered, incurred or paid by any member of the Purchaser Group as a result of any breach of or non-compliance with, or untruth of any of the warranties, representations or covenants of the Vendor contained in this agreement, in any schedule hereto, in any documents to be executed and delivered pursuant to this agreement or in any documents executed and delivered in connection with the completion of the transactions contemplated herein. 11.2 The Purchaser covenants and agrees to indemnify and save harmless the Vendor from and against any loss, liability, cost, expense or damage, including, without limiting the generality of the foregoing, all costs and expenses (including legal fees incurred in connection with any such loss or damage and in connection with any claim under this Article) suffered, incurred or paid by the Vendor as a result of any breach of or non-compliance with, or untruth of any of the warranties, representations or covenants of the Purchaser contained in this agreement, in any schedule hereto, or in any documents executed and delivered pursuant to this agreement or in any documents executed and delivered in connection with the completion of the transactions contemplated herein. 11.3 The Purchaser (or any member of the Purchaser Group) or the Vendor, as the case may be, shall give notice to the party (the "Indemnifier") liable to it pursuant to Section 11.1 or 11.2, as the case may be, as soon as reasonably practicable (provided that failure to so timely notify shall not relieve the Indemnifier of its obligations hereunder, except and only to the extent that such Indemnifier is prejudiced by the delay) of any claims asserted by third parties for which the Indemnifier may be liable pursuant to this Article and shall provide reasonable particulars thereof and the Indemnifier shall have the right, at its sole expense, to participate in any negotiations with respect thereto and to dispute and contest any such claims provided that it notifies the party giving such notice within ten (10) days of receiving such notice and furnishes to the party giving notice such security or other assurances as such party may reasonably request in connection therewith and provided further that such dispute is prosecuted or negotiations are conducted by the Indemnifier in good faith and with due diligence. The party giving notice will fully cooperate with the Indemnifier and its solicitors in any proceedings with respect to any such claims. Provided further that in the event that the party giving notice shall be unable to obtain timely advice from the Indemnifier with respect to any such matter, the party giving notice shall be entitled to deal with same in such manner as it, in the reasonable exercise of its judgement, deems appropriate. 11.4 The Purchaser shall have the right to satisfy any amount from time to time owing by it (or any member of the Purchaser Group) to the Vendor under this agreement or any other agreement to be executed and delivered in connection with the completion of the transactions contemplated herein (including, without limitation, the Employment Agreement) by way of set-off against any amount from time to time owing by the Vendor to the Purchaser, including, without limitation, any amount owing to the Purchaser pursuant to the Vendor's indemnification pursuant to Section 11.1 hereof. 11.5 The rights and benefits provided in this Article are supplemental to any other rights, actions or causes of action which may arise pursuant to any other section of this agreement or at law or in equity.

Indemnity and Set Off. 11.1 The Vendor covenants 15.1 You must indemnify us and/or BNZ for all losses and agrees liabilities we and/or BNZ incur (including claims by BNZ) because: (a) you did not observe any of your obligations under this agreement; (b) we and/or BNZ could not exercise all or any part of our and/or BNZ's rights under this agreement; (c) of any dispute between you and a customer over a transaction; (d) of any wilful default, negligence, fraud, act or omission by you or any of your agents or representatives relating to indemnify and save harmless the Purchaser and each this agreement; (e) of its officersany infringement by you or your agents or representatives of another person’s intellectual property rights; (f) any warranty that you made under this agreement is untrue; (g) of any use of equipment owned by us, directorsBNZ or others, agentsby you, affiliates and assignees (your employees, contractors, agents or invitees including, without limitation, in relation to transactions involving nominated cards and those involving non-standard cards or loyalty programmes; (h) of any assignee pursuant event relating to Section 14.11 hereofa transaction in a foreign currency; (i) we and/or BNZ exercised any of our and/or BNZ's rights under this agreement; or (collectively, the "Purchaser Group")from j) you have taken legal action against us and/or BNZ resulting in a costs order in our and/or BNZ's favour or we and/or BNZ have incurred legal costs against you in enforcing our and/or BNZ's rights under this agreement on a solicitor and against own client basis or recovering any loss, liability, cost, amounts you owe us and/or BNZ. 15.2 It is not necessary for us and/or BNZ to incur expense or damagemake payment before enforcing a right of indemnity conferred by this agreement. 15.3 You must indemnify us, includingBNZ, without limiting any of BNZ's payment processing agents or contractors and the generality of Switch Provider for all losses and liabilities we, those agents or contractors or BNZ or the foregoing, all costs and expenses (including legal fees incurred in connection with any such loss or damage and in connection with any claim under this Article) suffered, incurred or paid by any member of the Purchaser Group Switch Provider incur as a result of any breach of or non-compliance with, or untruth of any misuse of the warranties, representations equipment in giving refunds or covenants manually keying in transaction details. 15.4 These indemnities survive termination of the Vendor contained in this agreement. 15.5 If you have any liability to us and/or BNZ under this clause or any other part of this agreement, in we and/or BNZ may set-off that liability against any schedule hereto, in any documents liability we and/or BNZ have to be executed and delivered pursuant to this agreement or in any documents executed and delivered in connection with the completion of the transactions contemplated hereinyou. 11.2 The Purchaser covenants and agrees to indemnify and save harmless the Vendor from and against 15.6 If any loss, liability, cost, expense losses or damage, including, without limiting the generality of the foregoing, all costs and expenses (including legal fees liabilities incurred in connection with any such loss or damage and in connection with any claim by us and/or BNZ under this Article) suffered, incurred or paid by the Vendor as a result of any breach of or non-compliance with, or untruth of any of the warranties, representations or covenants of the Purchaser contained in this agreement, in any schedule hereto, or in any documents executed and delivered pursuant to this agreement or in any documents executed and delivered in connection with the completion of the transactions contemplated herein. 11.3 The Purchaser (or any member of the Purchaser Group) or the Vendor, as the case may be, shall give notice to the party (the "Indemnifier") liable to it pursuant to Section 11.1 or 11.2, as the case may be, as soon as reasonably practicable (provided that failure to so timely notify shall not relieve the Indemnifier of its obligations hereunder, except and only to the extent that such Indemnifier is prejudiced by the delay) of any claims asserted by third parties for which the Indemnifier may be liable pursuant to this Article and shall provide reasonable particulars thereof and the Indemnifier shall have the right, at its sole expense, to participate in any negotiations with respect thereto and to dispute and contest any such claims provided that it notifies the party giving such notice within ten (10) days of receiving such notice and furnishes to the party giving notice such security or other assurances as such party may reasonably request in connection therewith and provided further that such dispute is prosecuted or negotiations are conducted by the Indemnifier in good faith and with due diligence. The party giving notice will fully cooperate with the Indemnifier and its solicitors in any proceedings with respect to any such claims. Provided further that in the event that the party giving notice shall be unable to obtain timely advice from the Indemnifier with respect to any such matter, the party giving notice shall be entitled to deal with same in such manner as it, in the reasonable exercise of its judgement, deems appropriate. 11.4 The Purchaser shall have the right to satisfy any amount from time to time owing by it (or any member of the Purchaser Group) to the Vendor under this agreement clause or any other agreement to be executed and delivered in connection with the completion of the transactions contemplated herein (including, without limitation, the Employment Agreement) by way of set-off against any amount from time to time owing by the Vendor to the Purchaser, including, without limitation, any amount owing to the Purchaser pursuant to the Vendor's indemnification pursuant to Section 11.1 hereof. 11.5 The rights and benefits provided in this Article are supplemental to any other rights, actions or causes of action which may arise pursuant to any other section part of this agreement or are in a foreign currency amount, then we may convert that amount into New Zealand dollars at law or in equityour then prevailing spot rate of exchange.

Indemnity and Set Off. 11.1 The Vendor covenants 18.1 You must indemnify us for all losses and agrees to indemnify and save harmless liabilities we incur (including in the Purchaser and each case of its officersKiwibank, directors, agents, affiliates and assignees claims by the master acquirer) because: (a) you did not observe any of your obligations under this agreement; or (b) we could not exercise all or any part of our rights under this agreement including, without limitation, any assignee pursuant to Section 14.11 hereof) those described in 15; or (collectively, the "Purchaser Group")from and against any loss, liability, cost, expense or damage, including, without limiting the generality of the foregoing, all costs and expenses (including legal fees incurred in connection with any such loss or damage and in connection with any claim under this Article) suffered, incurred or paid by any member of the Purchaser Group as a result of any breach of or non-compliance with, or untruth of any of the warranties, representations or covenants of the Vendor contained in this agreement, in any schedule hereto, in any documents to be executed and delivered pursuant to this agreement or in any documents executed and delivered in connection with the completion of the transactions contemplated herein. 11.2 The Purchaser covenants and agrees to indemnify and save harmless the Vendor from and against any loss, liability, cost, expense or damage, including, without limiting the generality of the foregoing, all costs and expenses (including legal fees incurred in connection with any such loss or damage and in connection with any claim under this Article) suffered, incurred or paid by the Vendor as a result of any breach of or non-compliance with, or untruth of any of the warranties, representations or covenants of the Purchaser contained in this agreement, in any schedule hereto, or in any documents executed and delivered pursuant to this agreement or in any documents executed and delivered in connection with the completion of the transactions contemplated herein. 11.3 The Purchaser (or any member of the Purchaser Group) or the Vendor, as the case may be, shall give notice to the party (the "Indemnifier") liable to it pursuant to Section 11.1 or 11.2, as the case may be, as soon as reasonably practicable (provided that failure to so timely notify shall not relieve the Indemnifier of its obligations hereunder, except and only to the extent that such Indemnifier is prejudiced by the delayc) of any claims asserted dispute between you and a customer over a transaction; or (d) of any wilful default, negligence, fraud, act or omission by third parties for which the Indemnifier may be liable pursuant you or any of your agents or representatives relating to this Article and shall provide reasonable particulars thereof and the Indemnifier shall have the right, at its sole expense, to participate in agreement; or (e) of any negotiations with respect thereto and to dispute and contest infringement by you or your agents or representatives of another person’s intellectual property rights; or (f) any such claims provided warranty that it notifies the party giving such notice within ten (10) days of receiving such notice and furnishes to the party giving notice such security or other assurances as such party may reasonably request in connection therewith and provided further that such dispute is prosecuted or negotiations are conducted by the Indemnifier in good faith and with due diligence. The party giving notice will fully cooperate with the Indemnifier and its solicitors in any proceedings with respect to any such claims. Provided further that in the event that the party giving notice shall be unable to obtain timely advice from the Indemnifier with respect to any such matter, the party giving notice shall be entitled to deal with same in such manner as it, in the reasonable exercise of its judgement, deems appropriate. 11.4 The Purchaser shall have the right to satisfy any amount from time to time owing by it (or any member of the Purchaser Group) to the Vendor you made under this agreement is untrue; or (g) of any use of equipment owned by us or any other agreement to be executed and delivered in connection with the completion of the transactions contemplated herein (others, by you, your employees, contractors, agents or invitees including, without limitation, in relation to transactions involving nominated cards and those involving non- standard cards or loyalty programmes; or (h) of any event relating to a transaction in a foreign currency; or (i) we exercised any of our rights under this agreement; or (j) you have taken legal action against us resulting in a costs order in our favour or we have incurred legal costs against you in enforcing our rights under this agreement on a solicitor and own client basis or recovering any amounts you owe us. 18.2 Subject to the Employment Agreement) other provisions of this agreement, we agree to indemnify you for any amounts processed in accordance with this agreement, keyed in properly at equipment and accepted as valid by way our electronic banking system but not paid into your nominated account 18.3 It is not necessary for us to incur expense or make payment before enforcing a right of indemnity conferred by this agreement.‌‌‌‌‌ 18.4 You must indemnify us, the master acquirer, our payment processing agents or contractors and the Switch Provider for all losses and liabilities we, the master acquirer, those agents or contractors, or the Switch Provider incur as a result of misuse of the equipment in giving refunds or manually keying in transaction details. 18.5 These indemnities survive termination of this agreement. 18.6 If you have any liability to us under this clause or any other part of this agreement, we may set-off that liability against any amount from time liability we have to time owing by the Vendor to the Purchaser, including, without limitation, any amount owing to the Purchaser pursuant to the Vendor's indemnification pursuant to Section 11.1 hereofyou. 11.5 The rights and benefits provided in 18.7 If any losses or liabilities incurred by us under this Article are supplemental to clause or any other rights, actions or causes of action which may arise pursuant to any other section part of this agreement or are in a foreign currency amount, then we may convert that amount into New Zealand dollars at law or in equityour then prevailing spot rate of exchange.