Common use of Indemnity; Limitation of Liability Clause in Contracts

Indemnity; Limitation of Liability. (a) In addition to the payment of expenses pursuant to Section 10.2, whether or not the transactions contemplated hereby shall be consummated, each Credit Party agrees to defend (subject to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent and each Lender and their respective Affiliates and each of their respective officers, partners, members, directors, trustees, advisors, employees, shareholders, attorneys, controlling persons, agents, sub-agents and each of their respective heirs, successors and assigns (each, an “Indemnitee”), from and against any and all Indemnified Liabilities; provided, no Credit Party shall have any obligation to any Indemnitee hereunder with respect to (i) any Indemnified Liabilities to the extent such Indemnified Liabilities arise from the gross negligence or willful misconduct of such Indemnitee, in each case, as determined by a final, non-appealable judgment of a court of competent jurisdiction or (ii) claims brought by an Indemnitee solely against another Indemnitee and not arising out of any act or omission of any Credit Party or any of their respective Affiliates other than claims against any Agent (or any of their respective Affiliates) in fulfilling their respective roles as Agent or any similar role in respect of the Loans. To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 10.3 may be unenforceable in whole or in part because they are violative of any law or public policy, the applicable Credit Party shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them. This Section 10.3(a) shall not apply with respect to Taxes other than any Taxes that represent losses, damages, penalties, claims or costs arising from any non-Tax claim. (b) Each Credit Party also agrees that no Lender, Agent nor their respective Affiliates, directors, employees, attorneys, agents or sub-agents will have any liability to any Credit Party or any person asserting claims on behalf of or in right of any Credit Party or any other person in connection with or as a result of this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, in each case, except in the case of any Credit Party to the extent that any losses, claims, damages, liabilities or expenses incurred by such Credit Party or its affiliates, shareholders, partners or other equity holders have been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, willful misconduct or material breach by such Lender, Agent or their respective Affiliates, directors, employees, attorneys, agents or sub-agents in performing its obligations under this Agreement or any Credit Document. (c) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against each Lender, each Agent and their respective Affiliates, directors, employees, attorneys, agents or sub-agents, (i) for any direct or actual damages arising from the use by unintended recipients of information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems (including the Internet) in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such direct or actual damages are determined by a court of competent jurisdiction by final, non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or its Affiliates, directors, employees, attorneys, agents or sub-agents or (ii) on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and each Credit Party hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor. (d) To the extent permitted by applicable law, no Agent or Lender shall assert, and each Agent and each Lender hereby waives, any claim against each Credit Party and their respective Affiliates, directors, employees, attorneys agents or sub-agents, on any theory of liability, for special indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith (in each case, other than in respect of any such damages incurred or paid by an Indemnitee to a third party and otherwise required to be indemnified by a Credit Party under this Section 10.03), and each Agent and each Lender hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.

Indemnity; Limitation of Liability. (a) In addition to the payment 9.1 The Licensee indemnifies, holds harmless and defends UBC, its Board of expenses pursuant to Section 10.2Governors, whether or not the transactions contemplated hereby shall be consummated, each Credit Party agrees to defend (subject to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent and each Lender and their respective Affiliates and each of their respective officers, partners, members, directors, trustees, advisors, employees, shareholdersfaculty, attorneysstudents, controlling persons, agents, sub-invitees and agents and each of their respective heirs, successors and assigns (each, an the “IndemniteeIndemnitees”), from and ) against any and all Indemnified Liabilities; provided, no Credit Party shall have third party claims (including all associated legal fees and disbursements actually incurred) against any obligation to any such Indemnitee hereunder with respect to (i) any Indemnified Liabilities to the extent such Indemnified Liabilities arise from the gross negligence or willful misconduct of such Indemnitee, in each case, as determined by a final, non-appealable judgment of a court of competent jurisdiction or (ii) claims brought by an Indemnitee solely against another Indemnitee and not arising out of any act the exercise by Licensee (or omission its Sublicensees) of any Credit Party or any of their respective Affiliates other than claims rights granted to Licensee under this Agreement, including without limitation against any Agent (damages or any of their respective Affiliates) in fulfilling their respective roles as Agent or any similar role in respect of the Loans. To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 10.3 may be unenforceable in whole or in part because they are violative of any law or public policy, the applicable Credit Party shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them. This Section 10.3(a) shall not apply with respect to Taxes other than any Taxes that represent losses, damagesconsequential or otherwise, penalties, claims or costs arising from any non-Tax claim. (b) Each Credit Party also agrees that no Lender, Agent nor their respective Affiliates, directors, employees, attorneys, agents third party claim based in any manner at all from or sub-agents will have any liability to any Credit Party or any person asserting claims on behalf out of or in right of any Credit Party or any other person in connection with or as a result of this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof Licensed Patents, Technology, Improvements, Products or Licensee Owned Improvement Product licensed under this Agreement, by the Licensee or its Sublicensees or their customers or end-users. 9.2 UBC’s total liability, whether under the express or implied terms of this Agreement, in tort (including negligence) or at common law, for any loss or damage suffered by the Licensee, whether direct, indirect or special, or any act other similar damage that may arise or omission or event occurring in connection therewithdoes arise from any breaches of this Agreement by UBC, in each caseits Board of Governors, except in the case of any Credit Party to the extent that any losses, claims, damages, liabilities or expenses incurred by such Credit Party or its affiliates, shareholders, partners or other equity holders have been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, willful misconduct or material breach by such Lender, Agent or their respective Affiliates, directorsofficers, employees, attorneysfaculty, agents students or sub-agents agents, is limited to [*], less amounts actually paid by UBC to the inventors of the Licensed Patents, Technology or Improvements out of such payments received by UBC from the Licensee based on such inventorship in performing accordance with UBC’s policies regarding payments to its obligations inventors, and provided that any such liability on the part of UBC in excess of CDN. [*] may be recovered by the Licensee solely out of, and as a set off against, amounts payable by the Licensee to UBC under this Agreement after the date of any award of such damages or any Credit Documentother liability. (c) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against each Lender9.3 Subject to Article 9.1, each Agent Party acknowledges and their respective Affiliates, directors, employees, attorneys, agents or sub-agents, (i) agrees that the other Party will not be liable for any direct special, punitive, consequential or actual incidental damages arising from any breach or breaches of this Agreement. 9.4 Notwithstanding the use by unintended recipients termination or expiration of information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems (including the Internet) in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such direct or actual damages are determined by a court of competent jurisdiction by final, non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or its Affiliates, directors, employees, attorneys, agents or sub-agents or (ii) on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or thereinAgreement, the transactions contemplated hereby or thereby, any Loan or rights and obligations in Article 9 will survive and continue to bind the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and each Credit Party hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor. (d) To the extent permitted by applicable law, no Agent or Lender shall assert, and each Agent and each Lender hereby waives, any claim against each Credit Party and their respective Affiliates, directors, employees, attorneys agents or sub-agents, on any theory of liability, for special indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith (in each case, other than in respect of any such damages incurred or paid by an Indemnitee to a third party and otherwise required to be indemnified by a Credit Party under this Section 10.03), its successors and each Agent and each Lender hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favorassigns.

Indemnity; Limitation of Liability. (a) In addition to the payment of expenses pursuant to Section 10.2, whether or not the transactions contemplated hereby shall be consummated, each Credit Party agrees to defend (subject to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent and each Lender and their respective Affiliates and each of their respective officers, partners, members, directors, trustees, advisors, employees, shareholders, attorneys, controlling persons, agents, sub-agents and each of their respective heirs, successors and assigns (each, an “Indemnitee”), from and against any and all Indemnified Liabilities; provided, no Credit Party shall have any obligation to any Indemnitee hereunder with respect to (i) any Indemnified Liabilities to the extent such Indemnified Liabilities arise from the gross negligence or willful misconduct of such Indemnitee, in each case, as determined by a final, non-appealable judgment of a court of competent jurisdiction or (ii) claims brought by an Indemnitee solely against another Indemnitee and not arising out of any act or omission of any Credit Party or any of their respective Affiliates other than claims against any Agent (or any of their respective Affiliates) in fulfilling their respective roles as Agent or any similar role in respect of the Loans. To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 10.3 may be unenforceable in whole or in part because they are violative of any law or public policy, the applicable Credit Party shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them. This Section 10.3(a) shall not apply with respect to Taxes other than any Taxes that represent losses, damages, penalties, claims or costs arising from any non-Tax claim. (b) Each Credit Party also agrees that no Lender, Agent nor their respective Affiliates, directors, employees, attorneys, agents or sub-agents will have any liability to any Credit Party or any person asserting claims on behalf of or in right of any Credit Party or any other person in connection with or as a result of this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, in each case, except in the case of any Credit Party to the extent that any losses, claims, damages, liabilities or expenses incurred by such Credit Party or its affiliates, shareholders, partners or other equity holders have been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, willful misconduct or material breach by such Lender, Agent or their respective Affiliates, directors, employees, attorneys, agents or sub-agents in performing its obligations under this Agreement or any Credit Document. (c) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against each Lender, each Agent and their respective Affiliates, directors, employees, attorneys, agents or sub-agents, (i) for any direct or actual damages arising from the use by unintended recipients of information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems (including the Internet) in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such direct or actual damages are determined by a court of competent jurisdiction by final, non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or its Affiliates, directors, employees, attorneys, agents or sub-agents or (ii) on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and each Credit Party hereby waives, releases and agrees not to sue xxx upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor. (d) To the extent permitted by applicable law, no Agent or Lender shall assert, and each Agent and each Lender hereby waives, any claim against each Credit Party and their respective Affiliates, directors, employees, attorneys agents or sub-agents, on any theory of liability, for special indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith (in each case, other than in respect of any such damages incurred or paid by an Indemnitee to a third party and otherwise required to be indemnified by a Credit Party under this Section 10.03), and each Agent and each Lender hereby waives, releases and agrees not to sue xxx upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.

Indemnity; Limitation of Liability. (a) In addition to the payment of expenses pursuant to Section 10.2, whether or not the transactions contemplated hereby shall be consummated, each Credit Party Counterparty (x) agrees to defend (subject to Indemnitees’ selection of counsel), indemnify, pay indemnify and hold harmless, each Agent and each Lender and their respective Affiliates and each of their respective the DB Entities and all officers, partners, members, directors, trustees, advisors, employees, shareholders, attorneys, controlling persons, agents, sub-agents counsel and/or employees thereof (each a “DB Indemnified Party”) harmless from any loss, damage, claim or expense, including reasonable attorneys’ fees and each of their respective heirs, successors and assigns expenses (each, an collectively “IndemniteeLosses”), when and as incurred by a DB Indemnified Party and (y) agrees that no DB Indemnified Party shall be liable for any loss, damage, claim or expense incurred by Counterparty, any of its affiliates or investors, except in each case for DBSI’s own gross negligence or willful misconduct, for any error of judgment made by it in good faith for any action taken or omitted to be taken by any of them under the PB Agreement or in connection therewith, including, but not limited to the following: (i) the execution, clearing, handling, financing, purchasing or selling of cash, securities, commodities or other property, including Collateral, capital introduction or other services to the extent so provided or similar action taken by the DB Entities; (ii) any arrangement pursuant to which certain of Counterparty’s securities are held by unaffiliated subcustodians, agent banks, agent financial institutions and depositories inside or outside the United States provided that the subcustodians have been selected by the DB Entities with reasonable care in light of the relevant jurisdiction; (iii) any act or failure to act in any capacity under or in connection with the PB Agreement when resulting from or arising out of or related to statements made or omitted by Counterparty including in its offering documents; or (iv) any action taken or not taken by any DB Indemnified Party in accordance with the PB Agreement or pursuant to Authorized Instructions reasonably believed to have been received by the DB Entities from Counterparty or its agents. (b) Counterparty agrees to fully reimburse the DB Indemnified Parties for any reasonable legal or other expenses (including the cost of any investigation and preparation) when and as incurred by the DB Indemnified Parties in connection with any claim, action, proceeding, or investigation arising out of or in connection with the PB Agreement or any transactions thereunder or any activities of the DB Indemnified Parties in connection with the PB Agreement, other than one as to which any DB Entity is determined to have acted fraudulently, in a grossly negligent manner or with willful misconduct. (c) Notwithstanding any other provision of the PB Agreement, Counterparty shall indemnify and hold harmless each DB Indemnified Party from and against any and all Losses when and as incurred by an Indemnified Liabilities; Party arising from or relating to the Manager’s fraud or willful misconduct. (d) In no event shall the DB Entities or Counterparty be liable for indirect, consequential, incidental or any similar damages for any reason, provided, no Credit Party however, that for the avoidance of doubt, Counterparty shall have be liable to indemnify and reimburse the DB Entities for all losses, claims and expenses incurred by any obligation to any Indemnitee hereunder with respect to of the DB Entities arising out of or related to: (i) any Indemnified Liabilities fines imposed upon any of the DB Entities by any regulatory body, exchange, clearing system or organization, domestic or international as a result of: (1) Counterparty’s failure to perform its Obligations, or (2) the DB Entities acting in accordance with Counterparty’s instructions, or (ii) claims by Counterparty’s investors, shareholders or other equity holders involving or related to Counterparty’s Accounts or Obligations, in each case (x) irrespective of whether the foregoing are deemed consequential, incidental or indirect losses, claims or expenses and (y) except to the extent such Indemnified Liabilities arise losses, claims or expenses arose directly from the gross negligence, fraud or willful misconduct by the DB Entities. In addition the DB Indemnified Parties shall not be held liable for any acts or omissions of any non-affiliated Executing Broker, subcustodian, agent or other third party. All transactions effected with an Executing Broker or other third party for Counterparty shall be for the account of Counterparty and DBSI shall have no responsibility to Counterparty or any third party with respect thereto. Counterparty agrees that it is responsible, and liable to the relevant DB Indemnified Party, for all costs, losses and fees arising out of Counterparty’s orders with an Executing Broker or other third party or any act or omission by an Executing Broker or other third party. (e) The DB Indemnified Parties shall not be held liable for any loss of any kind caused, directly or indirectly, by government restrictions, exchange or market rulings, suspension of trading, war (whether declared or undeclared), terrorist acts, insurrection, riots, fires, flooding, strikes, failure of utility services, accidents, adverse weather or other events of nature, including but not limited to earthquakes, hurricanes and tornadoes, or other conditions beyond the DB Indemnified Parties’ control. In the event that any communications network, data processing system, or computer system used by any of the DB Entities or Counterparty, whether any of the DB Entities own it or not, is rendered inoperable, the DB Indemnified Parties will not be liable to Counterparty for any loss, liability, claim, damage or expense resulting, directly or indirectly, therefrom, except to the extent that such loss, liability, claim, damage or expense resulted from an affirmative act of gross negligence or willful misconduct on the part of such Indemnitee, in each case, as determined by a final, non-appealable judgment of a court of competent jurisdiction or the DB Entities. (iif) claims brought by an Indemnitee solely against another Indemnitee and not arising out of any act or omission of any Credit Party or The DB Entities may execute any of their respective Affiliates other than claims against any Agent duties and exercise their rights hereunder by or through agents (which may include affiliates) or any employees and the DB Entities shall use reasonable care in the selection and appointment of their respective Affiliates) in fulfilling their respective roles as Agent or any similar role in respect such agents. None of the Loans. To DB Entities shall be liable for the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 10.3 may be unenforceable in whole acts or in part because they are violative omissions of any law unaffiliated agent selected and appointed by it with reasonable care. The DB Entities may consult with legal counsel and any action taken or public policy, suffered in good faith in accordance with the applicable Credit Party advice of such counsel shall contribute the maximum portion that it is permitted be full justification and protection to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of themit. This Section 10.3(a) 8 shall not apply with respect to Taxes other than any Taxes that represent losses, damages, penalties, claims or costs arising from any non-Tax claim. (b) Each Credit Party also agrees that no Lender, Agent nor their respective Affiliates, directors, employees, attorneys, agents or sub-agents will have any liability to any Credit Party or any person asserting claims on behalf of or in right of any Credit Party or any other person in connection with or as a result survive termination of this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, in each case, except in the case of any Credit Party to the extent that any losses, claims, damages, liabilities or expenses incurred by such Credit Party or its affiliates, shareholders, partners or other equity holders have been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, willful misconduct or material breach by such Lender, Agent or their respective Affiliates, directors, employees, attorneys, agents or sub-agents in performing its obligations under this Agreement or any Credit DocumentAgreement. (c) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against each Lender, each Agent and their respective Affiliates, directors, employees, attorneys, agents or sub-agents, (i) for any direct or actual damages arising from the use by unintended recipients of information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems (including the Internet) in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such direct or actual damages are determined by a court of competent jurisdiction by final, non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or its Affiliates, directors, employees, attorneys, agents or sub-agents or (ii) on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and each Credit Party hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor. (d) To the extent permitted by applicable law, no Agent or Lender shall assert, and each Agent and each Lender hereby waives, any claim against each Credit Party and their respective Affiliates, directors, employees, attorneys agents or sub-agents, on any theory of liability, for special indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith (in each case, other than in respect of any such damages incurred or paid by an Indemnitee to a third party and otherwise required to be indemnified by a Credit Party under this Section 10.03), and each Agent and each Lender hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.

Indemnity; Limitation of Liability. (a) In addition to the payment of expenses pursuant to Section 10.2, whether or not the transactions contemplated hereby shall be consummated, each Credit Party agrees to defend (subject to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent and each Lender and their respective Affiliates and each of their respective officers, partners, members, directors, trustees, advisors, employees, shareholders, attorneys, controlling persons, agents, sub-agents and each of their respective heirs, successors and assigns (each, an “Indemnitee”), from and against any and all Indemnified Liabilities; provided, no Credit Party shall have any obligation to any Indemnitee hereunder with respect to (i) any Indemnified Liabilities to the extent such Indemnified Liabilities arise from the gross negligence or willful misconduct of such Indemnitee, in each case, as determined by a final, non-appealable judgment of a court of competent jurisdiction or (ii) claims brought by an Indemnitee solely against another Indemnitee and not arising out of any act or omission of any Credit Party or any of their respective Affiliates other than claims against any Agent (or any of their respective Affiliates) in fulfilling their respective roles as Agent or any similar role in respect of the Loans. To the extent that the undertakings The Parties hereto agree to defend, indemnify, pay and hold each other, and their respective employees and officials, harmless from any third-party claims, demands, actions or causes of action, including attorneys’ fees and expenses arising therefrom, alleging or related to the gross negligence or intentional wrongdoing by either Party, or its subcontractors, agents or employees, in the performance obligations set forth in this Agreement. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, REGARDLESS OF THE BASIS OR GROUND OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, WHETHER FORESEEABLE OR NOT, EVEN IF SUCH PARTY HAD BEEN ADVISED OF THE POSSIBILITY THEREOF, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE SERVICES TO BE PROVIDED HEREUNDER. Should Provider be liable under this Agreement for any amount that is not excluded under the preceding sentence, or if such exclusion of liability is not valid or enforceable under applicable law, the liability of Provider shall, in the aggregate, not exceed the total amount paid to and received by the Provider under this Agreement during the 12- month period immediately preceding the event giving rise to such liability. (b) The sole and exclusive remedy for each Party with respect to any and all third-party claims shall be pursuant to the indemnification provision set forth in this Section 10.3 may be unenforceable in whole or in part because they are violative of any law or public policy, the applicable Credit Party shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them9. This Section 10.3(a) shall not apply with respect to Taxes other than any Taxes that represent losses, damages, penalties, claims or costs arising from any non-Tax claim. (b) Each Credit Party also agrees that no Lender, Agent nor their respective Affiliates, directors, employees, attorneys, agents or sub-agents will have any liability to any Credit Party or any person asserting claims on behalf of or in right of any Credit Party or any other person in connection with or as a result of this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use In furtherance of the proceeds thereof or any act or omission or event occurring in connection therewithforegoing, in each case, except in the case of any Credit Party to the extent that any losses, claims, damages, liabilities or expenses incurred by such Credit Party or its affiliates, shareholders, partners or other equity holders have been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, willful misconduct or material breach by such Lender, Agent or their respective Affiliates, directors, employees, attorneys, agents or sub-agents in performing its obligations under this Agreement or any Credit Document. (c) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against each Lender, each Agent and their respective Affiliates, directors, employees, attorneys, agents or sub-agents, (i) for any direct or actual damages arising from the use by unintended recipients of information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems (including the Internet) in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby; provided that such indemnity shall not, as to any Indemnitee, be available to the fullest extent that such direct or actual damages are determined by a court permitted under applicable law, any and all rights, claims and causes of competent jurisdiction by final, non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or its Affiliates, directors, employees, attorneys, agents or sub-agents or action (ii) on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result other than claims of, or in any way related tocauses of action arising from, this Agreement actual fraud) it may have against the other Party arising under or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and each Credit Party hereby waives, releases and agrees not to sue based upon any such claim federal, state, local or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor. (d) To the extent permitted by otherwise applicable law, no Agent or Lender shall assert, and each Agent and each Lender hereby waives, any claim against each Credit Party and their respective Affiliates, directors, employees, attorneys agents or sub-agents, on any theory of liability, for special indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith (in each case, other than in respect of any such damages incurred or paid by an Indemnitee to a third party and otherwise required to be indemnified by a Credit Party under this Section 10.03), and each Agent and each Lender hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.

Indemnity; Limitation of Liability. (a) Indemnity. In addition to the payment of expenses pursuant to Section 10.29.02 hereof, whether or not the transactions contemplated hereby shall be consummated, each Credit Party the Borrower agrees to defend (subject to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent and each Lender (including any Issuing Lender) and their respective Affiliates and each of their respective the officers, partners, members, directors, trustees, advisors, employees, shareholders, attorneys, controlling persons, agents, sub-agents advisors and affiliates of each of their respective heirs, successors and assigns them (each, an collectively called the “IndemniteeIndemnitees”), ) harmless from and against any and all Indemnified Liabilities; providedliabilities, no Credit Party shall have any obligation to any Indemnitee hereunder with respect to (i) any Indemnified Liabilities to the extent such Indemnified Liabilities arise from the gross negligence or willful misconduct of such Indemniteeobligations, in each case, as determined by a final, non-appealable judgment of a court of competent jurisdiction or (ii) claims brought by an Indemnitee solely against another Indemnitee and not arising out of any act or omission of any Credit Party or any of their respective Affiliates other than claims against any Agent (or any of their respective Affiliates) in fulfilling their respective roles as Agent or any similar role in respect of the Loans. To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 10.3 may be unenforceable in whole or in part because they are violative of any law or public policy, the applicable Credit Party shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them. This Section 10.3(a) shall not apply with respect to Taxes other than any Taxes that represent losses, damages, penalties, claims or costs arising from any non-Tax claim. (b) Each Credit Party also agrees that no Lenderactions, Agent nor their respective Affiliatesjudgments, directorssuits, employeesclaims, attorneyscosts, agents or sub-agents will have any liability to any Credit Party or any person asserting claims on behalf of or in right expenses and disbursements of any Credit Party kind or any other person nature whatsoever (including, without limitation, the reasonable fees, expenses and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or as judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a result party thereto), which may be imposed on, incurred by, or asserted against that Indemnitee, in any manner relating to or arising out of this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or thereinLetter of Credit, the transactions contemplated hereby or thereby, any Loan Lenders’ agreement to make the Loans or the use or intended use of the proceeds thereof or any act or omission or event occurring in connection therewith, in each case, except in the case of any of the Loans or Letters of Credit Party to hereunder (the extent that any losses, claims, damages, liabilities or expenses incurred by such Credit Party or its affiliates, shareholders, partners or other equity holders have been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, willful misconduct or material breach by such Lender, Agent or their respective Affiliates, directors, employees, attorneys, agents or sub-agents in performing its obligations under this Agreement or any Credit Document. (c) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against each Lender, each Agent and their respective Affiliates, directors, employees, attorneys, agents or sub-agents, (i) for any direct or actual damages arising from the use by unintended recipients of information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems (including the Internet) in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby“indemnified liabilities”); provided that such indemnity that, the Borrower shall not, as have no obligation to any Indemnitee, be available Indemnitee hereunder to the extent that such direct or actual damages indemnified liabilities are determined by a court of competent jurisdiction by final, final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or its Affiliates, directors, employees, attorneys, agents or sub-agents or (ii) on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and each Credit Party hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor. (d) that Indemnitee. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy or otherwise, the Borrower shall contribute the maximum portion which it is permitted by to pay and satisfy under applicable law, no Agent or Lender shall assert, to the payment and each Agent and each Lender hereby waives, any claim against each Credit Party and their respective Affiliates, directors, employees, attorneys agents or sub-agents, on any theory satisfaction of liability, for special indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not all indemnified liabilities incurred by the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement Indemnitees or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith (in each case, other than in respect of any such damages incurred or paid by an Indemnitee to a third party and otherwise required to be indemnified by a Credit Party under this Section 10.03), and each Agent and each Lender hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favorthem.

Indemnity; Limitation of Liability. (a) In addition to the payment of expenses pursuant to Section 10.2Landlord shall not be liable for, whether or not the transactions contemplated hereby shall be consummated, each Credit Party agrees to defend (subject to Indemnitees’ selection of counsel), and Tenant will indemnify, pay defend and hold harmlesssave Landlord, each Agent and each Lender and their respective Affiliates and each of their respective officers, partners, members, directors, trustees, advisorsits agents, employees, shareholderscontractors and lenders harmless from, all fines, suits, damages, claims, demands, losses, and actions (including attorneys, controlling persons, agents, sub-agents and each of their respective heirs, successors and assigns (each, an “Indemnitee”), from and against any and all Indemnified Liabilities; provided, no Credit Party shall have any obligation to any Indemnitee hereunder with respect to ’ fees) arising out of: (i) for any Indemnified Liabilities injury to person or damage to or loss of property on or about the extent such Indemnified Liabilities arise from Premises or the gross Property caused by the actual or alleged negligence or willful misconduct of such IndemniteeTenant, in each caseits employees, as determined subtenants, invitees, licensees, or by a final, non-appealable judgment any other person entering the Property under express or implied invitation of a court of competent jurisdiction or Tenant; (ii) claims brought by an Indemnitee solely against another Indemnitee and not arising out of any act or omission of any Credit Party or any of their respective Affiliates other than claims against any Agent (or any of their respective Affiliates) in fulfilling their respective roles as Agent or any similar role in respect Tenant’s use of the Loans. To Premises; (iii) the extent that the undertakings conduct on any work done on behalf of Tenant; (iv) failure of Tenant to defend, indemnify, pay and hold harmless set forth in comply with Legal Requirements; or (iv) ·any breach of or default under this Section 10.3 may be unenforceable in whole or in part because they are violative of any law or public policy, the applicable Credit Party shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred Lease by Indemnitees or any of them. This Section 10.3(a) shall not apply with respect to Taxes other than any Taxes that represent losses, damages, penalties, claims or costs arising from any non-Tax claimTenant. (b) Each Credit Party also agrees that no LenderLandlord shall not be responsible for any of its or any other person’s acts or omissions including, Agent nor their respective Affiliateswithout limitation, directorsits negligence, or the acts, omissions or negligence of any party for whom Landlord could be responsible or liable including, without limitation, its agents, employees, attorneysinvitees, agents lessees, licensees or sub-agents will have independent contractors, that causes any liability loss or damage to any Credit Party or any person asserting claims on behalf of or in right of any Credit Party or any other person in connection with or as a result of this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan property or the use of the proceeds thereof death or injury to any act or omission or event occurring in connection therewithperson, in each case, except in the case of any Credit Party to the extent that any losses, claims, damages, liabilities or expenses incurred by such Credit Party or its affiliates, shareholders, partners or other equity holders have been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, willful misconduct or material breach by such Lender, Agent or their respective Affiliates, directors, employees, attorneys, agents or sub-agents in performing its obligations under this Agreement or any Credit Document. (c) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against each Lender, each Agent and their respective Affiliates, directors, employees, attorneys, agents or sub-agents, whether occasioned: (i) by theft, fire, act of God or public enemy, injunction, riot, strike, insurrection, war, court order, requisition of other governmental body or authority; (ii) due to the Premises, the Building or the Property becoming out of repair; (iii) by the happening of any accident in or about the Property; (iv) by any act of neglect of any tenant or occupant of the Property or of any other person; or (v) otherwise. This provision shall apply especially (but not exclusively) to damage caused by water, frost, weather, steam, sewerage, electricity, gas, sewer gas or odors, or by the bursting or leaking of pipes or plumbing work, and shall apply equally whether such damage be caused by act or neglect of Landlord or any of the other tenants, occupants, or maintenance personnel of the Property, or of any other person. Notwithstanding the foregoing, but subject to Section 21, Landlord shall be liable for any direct such loss, damage, death or actual damages arising from injury which is proximately caused by the use by unintended recipients of information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems (including the Internet) in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such direct or actual damages are determined by a court of competent jurisdiction by final, non-appealable judgment to have resulted from the Landlord’s gross negligence or willful misconduct of such Indemnitee or its Affiliates, directors, employees, attorneys, agents or sub-agents or (ii) on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and each Credit Party hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favormisconduct. (d) To the extent permitted by applicable law, no Agent or Lender shall assert, and each Agent and each Lender hereby waives, any claim against each Credit Party and their respective Affiliates, directors, employees, attorneys agents or sub-agents, on any theory of liability, for special indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith (in each case, other than in respect of any such damages incurred or paid by an Indemnitee to a third party and otherwise required to be indemnified by a Credit Party under this Section 10.03), and each Agent and each Lender hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.

Indemnity; Limitation of Liability. (a) In addition to the payment of expenses pursuant to Section 10.211.02, whether or not any or all of the transactions contemplated hereby Transactions shall be consummated, each Credit Note Party agrees to defend (subject to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each EOC, Agent and each Lender and Holder, their respective Affiliates and each of its and their respective officers, members, shareholders, partners, members, directors, trustees, advisors, employees, shareholders, advisors (including attorneys, controlling personsaccountants and experts), agents, sub-representatives and agents and each of their respective heirs, successors and assigns and each Person who controls any of the foregoing (each, an “Indemnitee”), from and against any and all Indemnified Liabilities, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY, OR SOLE NEGLIGENCE OF SUCH INDEMNITEE; providedprovided that, no Credit Note Party shall have any obligation to any an Indemnitee hereunder with respect to (i) any Indemnified Liabilities to the extent if such Indemnified Liabilities arise from the gross negligence or willful misconduct of such Indemnitee, in each case, that Indemnitee as determined by a final, non-appealable judgment of a court of competent jurisdiction or (ii) in a final, nonappealable order, provided further, that no Note Party shall indemnify any Indemnitee for claims brought by an Indemnitee solely against another Indemnitee and not arising out of any act or omission of any Credit Party or any of their respective Affiliates other than claims against any Agent among the Holders (or any combination thereof), in each case to the extent not related to a breach of their respective Affiliates) in fulfilling their respective roles an obligation of a Note Party as Agent or any similar role in respect determined by a court of the Loanscompetent jurisdiction by final and nonappealable. To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 10.3 11.03 may be unenforceable in whole or in part because they are violative of any law or public policy, the applicable Credit Note Party shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them. This The indemnities and waivers set forth in this Section 10.3(a11.03(a) shall not apply with respect to Taxes other than any Taxes that represent lossessurvive the Payment in Full, damages, penalties, claims the termination of this Agreement and the resignation or costs arising from any non-Tax claimremoval of the Agent. All amounts due under this Section 11.03(a) shall be paid within thirty (30) days of receipt by the Issuer of an invoice in reasonable detail. (b) Each Credit Party also agrees that no Lender, Agent nor their respective Affiliates, directors, employees, attorneys, agents or sub-agents will have any liability to any Credit Party or any person asserting claims on behalf of or in right of any Credit Party or any other person in connection with or as a result of this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, in each case, except in the case of any Credit Party to the extent that any losses, claims, damages, liabilities or expenses incurred by such Credit Party or its affiliates, shareholders, partners or other equity holders have been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, willful misconduct or material breach by such Lender, Agent or their respective Affiliates, directors, employees, attorneys, agents or sub-agents in performing its obligations under this Agreement or any Credit Document. (ci) To the extent permitted by applicable law, no Credit Note Party shall assert (and no Note Party shall permit is Affiliates to assert), and each Credit Note Party hereby waives, releases and agrees not to sue upon any claim against EOC, Agent and each LenderHolder, each Agent their Affiliates and its and their respective Affiliatesofficers, members, shareholders, partners, directors, employees, attorneys, agents or sub-agents, (i) for any direct or actual damages arising from the use by unintended recipients of information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems (including the Internet) in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such direct or actual damages are determined by a court of competent jurisdiction by final, non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or its Affiliates, directorstrustees, employees, advisors (including attorneys, accountants and experts), representatives and agents or suband each of their respective successors and assigns and each Person who controls any of the foregoing (each such Person, a “Holder-agents or Related Party”) (ii) and agrees to cause its Affiliates to do the same), on any theory of liability, for special, indirect, exemplary, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or Agreement, any Credit Note Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or therebyTransactions, any Loan documentation related to any Note or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and each Credit Note Party hereby waives, releases and agrees not to sue any Holder-Related Party upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor. The waivers set forth in this Section 11.03(b) shall survive the Payment in Full, and the termination of this Agreement. (dii) To the extent permitted by permissible under applicable lawLaw, no Agent or Lender shall assert, and each Agent and each Lender hereby waivesneither the Agent, any claim against each Credit Note Party and their respective Affiliatesor any Subsidiary shall have any liability for any special, directorsindirect, employees, attorneys agents or sub-agents, on any theory of liability, for special indirectexemplary, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or Agreement, any Credit Note Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or therebyTransactions, any Loan documentation related to any Note or the use of the proceeds thereof or any act or omission or event occurring in connection therewith (in each casetherewith, other than in respect of any such damages incurred or paid by an Indemnitee to a third party and otherwise required for any out-of-pocket expenses in each case subject to be indemnified by a Credit Party under the indemnification provisions of this Section 10.0311.03; it being agreed that this sentence shall not limit the obligations of the Note Parties under Section 11.03(a). The waivers set forth in this Section 11.03(b) shall survive the Payment in Full, and the termination of this Agreement. (c) Each Note Party hereby acknowledges and agrees that an Indemnitee may now or in the future have certain rights to indemnification provided by other sources (“Other Sources”). Each Note Party hereby agrees that (i) it is the indemnitor of first resort (i.e., its obligations to the Indemnitees are primary and any obligation of the Other Sources to provide indemnification for the same Indemnified Liabilities are secondary to any such obligation of the Note Party), (ii) that it shall be liable for the full amount of all Indemnified Liabilities, without regard to any rights the Indemnitees may have against the Other Sources, and each Agent and each Lender hereby (iii) it irrevocably waives, relinquishes and releases the Other Sources and agrees not to sue upon the Indemnitees from any such claim and all claims (A) against the Other Sources for contribution, indemnification, subrogation or any other recovery of any kind in respect thereof and (B) that an Indemnitee must seek expense advancement or reimbursement, or indemnification, from the Other Sources before the Note Party must perform its obligations hereunder. No advancement or payment by the Other Sources on behalf of an Indemnitee with respect to any claim for which such damages, whether Indemnitee has sought indemnification from a Note Party shall affect the foregoing. The Other Sources shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery which the Indemnitee would have had against a Note Party if the Other Sources had not accrued and whether advanced or not known paid any amount to or suspected to exist in its favoron behalf of the Indemnitee.

Indemnity; Limitation of Liability. (a) 11.1 In addition return for the Grant of License as provided herein to install and use the payment Software, Second Party accepts all risk of expenses pursuant to Section 10.2loss as a result of such use or operation of the Software, whether or not the transactions contemplated hereby shall be consummatedSoftware Plug-Ins, each Credit Party and Software Compatible API and agrees to defend (subject to Indemnitees’ selection of counsel), indemnify, pay indemnify and hold harmlessharmless the First Party, each Agent and each Lender and their respective Affiliates and each of their respective officers, partners, members, its directors, trustees, advisorsits officers, employees, shareholdersheirs or assigns against any and all losses suffered as a result of the use or operation of the Software, attorneysSoftware Plug-Ins, controlling personsand Software Compatible API . Second Party agrees not to transfer or provide the Software to any other individual or entity, agentsor trade another individual's or entity's brokerage account or currency trading account using the Software, sub-agents unless said individual or entity has agreed to be bound by the terms of this Agreement. 11.2 Second Party shall defend, indemnify and each of their respective heirs, successors and assigns (each, an “Indemnitee”)hold harmless the First Party, from and against any all costs, charges and all Indemnified Liabilities; provided, no Credit Party shall have any obligation to any Indemnitee hereunder with respect to expenses (iincluding attorneys' fees) any Indemnified Liabilities to the extent such Indemnified Liabilities arise from the gross negligence or willful misconduct of such Indemnitee, in each case, as determined by a final, non-appealable judgment of a court of competent jurisdiction or (ii) claims brought by an Indemnitee solely against another Indemnitee and not arising out of any act or omission of any Credit Party or any of their respective Affiliates other than claims against any Agent (or any of their respective Affiliates) in fulfilling their respective roles as Agent or any similar role in respect of the Loans. To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 10.3 may be unenforceable in whole or in part because they are violative of any law or public policy, the applicable Credit Party shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them. This Section 10.3(a) shall not apply with respect to Taxes other than any Taxes that represent losses, damages, penalties, claims or costs arising from any non-Tax third party claim. (b) Each Credit , action, suit, or proceeding against any action by a third party, including but not limited to clients of the Second Party, against First Party also agrees that no Lender, Agent nor their respective Affiliates, directors, employees, attorneys, agents or sub-agents will have is based on any liability to any Credit Party or any person asserting claims on behalf of or in right claim of any Credit Party or any other person in connection with or as a result of this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any negligent act or omission or event occurring in connection therewith, in each case, except in the case willful conduct of any Credit Party to the extent that any losses, claims, damages, liabilities or expenses incurred by such Credit Second Party or its affiliates, shareholders, partners or other equity holders have been found by a final, non-appealable judgment employees of a court of competent jurisdiction to have resulted from the gross negligence, willful misconduct or material breach by such Lender, Agent or their respective Affiliates, directors, employees, attorneys, agents or sub-agents in performing its obligations under this Agreement or any Credit DocumentSecond Party. (c) To the extent permitted by applicable law11.3 SECOND PARTY HEREBY AGREES THAT LICENSOR SHALL NOT BE LIABLE TO SECOND PARTY, no Credit Party shall assertHIS/HER HEIRS, and each Credit Party hereby waivesSUCCESSORS OR ASSIGNS, any claim against each LenderFOR ANY DAMAGES WHATSOEVER, each Agent and their respective AffiliatesUNDER ANY LEGAL THEORY WHATSOEVER, directorsWHICH DAMAGES MAY ARISE OUT OF, employeesOR IN ANY WAY RELATE TO, attorneys, agents or sub-agents, (i) for any direct or actual damages arising from the use by unintended recipients of information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems (including the Internet) in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such direct or actual damages are determined by a court of competent jurisdiction by final, non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or its Affiliates, directors, employees, attorneys, agents or sub-agents or (ii) on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and each Credit Party hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favorTHE USE OF THE SOFTWARE. (d) To the extent permitted by applicable law, no Agent or Lender shall assert, and each Agent and each Lender hereby waives, any claim against each Credit Party and their respective Affiliates, directors, employees, attorneys agents or sub-agents, on any theory of liability, for special indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith (in each case, other than in respect of any such damages incurred or paid by an Indemnitee to a third party and otherwise required to be indemnified by a Credit Party under this Section 10.03), and each Agent and each Lender hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor11.4 UNDER NO CIRCUMSTANCES SHALL THE LIABILITY OF THE FIRST PARTY UNDER THIS AGREEMENT EXCEED A CAP OF THE TOTAL LICENSE FEES PAID BY THE SECOND PARTY SET OUT IN CLAUSE 3.1.