Common use of Licensee Indemnity Clause in Contracts

Licensee Indemnity. Licensee agrees to indemnify, defend and hold harmless MyECheck from and against all damages and costs (including reasonable attorneys' fees) finally awarded against MyECheck (or finally settled upon) and arising from: (i) any claim of personal injury or tangible personal property damage (excluding data) of whatsoever nature or kind arising, in whole or in part, out of, as a result of, or in connection with the gross negligent or willful misconduct of Licensee, its employees, subcontractors or agents; (ii) any claim brought against MyECheck by a third party alleging that the Licensee Materials (as defined in Exhibit C) directly infringe any U.S. copyright or trademark or misappropriate any trade secret (recognized as such under the Uniform Trade Secrets Act) in existence as of the Effective Date; or (iii) any claim brought against MyECheck by a third party arising from or relating to any modification of the Software by Licensee or any use of the Software other than as permitted under this Agreement. The parties acknowledge and agree that Licensee's obligations under this section are conditioned upon MyECheck providing Licensee: (1) prompt written notice of the existence of such claim, suit, action or proceeding (each a "claim"); (2) sole control over the defense or settlement of such claim; and (3) assistance at Licensee's request to the extent reasonably necessary for the defense of such claim. The foregoing sets forth Licensee's sole and exclusive obligation and MyECheck's sole and exclusive remedy for any claim of intellectual property infringement or misappropriation relating to the Licensee Materials. Notwithstanding the foregoing, Licensee shall not indemnify, defend or hold harmless MyECheck for any claims arising from: (a) any MyECheck intellectual property or software incorporated in or combined with the Licensee Materials where in the absence of such incorporated or combined item, there would not have been infringement; (b) Licensee Materials which have been altered or modified by MyECheck (other than in response to a request by Licensee), where in the absence of such alteration or modification the Licensee Materials would not be infringing; (c) use of an any version of the Licensee Materials for which Licensee has made available an updated, revised or repaired subsequent version; or (d) the gross negligence or willful misconduct of MyECheck or any of its agents, subcontractors or employees. Upon notice of any claim of infringement or upon reasonable belief of the likelihood of such a claim, Licensee shall have the right, at its option, to: (x) obtain the rights to continued use of the Licensee Materials; (y) substitute other suitable, functionally-equivalent, non-infringing materials; or (z) replace or modify the Licensee Materials or their design so that they are no longer infringing. Furthermore, Licensee agrees to maintain commercial general liability insurance of at least $2.5 million, covering Licensee's obligations contained herein on a claims-made basis with coverage for at least one year from the date of completion of the services. The provisions of this Section 12 herein shall survive for a period of one year following the earlier of (a) completion of the Maintenance services or (b) termination of this Agreement.

Licensee Indemnity. Licensee agrees to indemnify, defend and hold harmless MyECheck from and against all damages and costs (including reasonable attorneys' fees) finally awarded against MyECheck (or finally settled upon) and arising from: (i) any claim of personal injury or tangible personal property damage (excluding data) of whatsoever nature or kind arising, in whole or in part, out of, as a result of, or in connection with the gross negligent or willful misconduct of Licensee, its employees, subcontractors or agents; (ii) any claim brought against MyECheck by a third party alleging that the Licensee Materials (as defined in Exhibit C) directly infringe any U.S. copyright or trademark or misappropriate any trade secret (recognized as such under the Uniform Trade Secrets Act) in existence as of the Effective Date; or (iii) any claim brought against MyECheck by a third party arising from or relating to any modification of the Software by Licensee or any use of the Software other than as permitted under this Agreement. The parties acknowledge and agree that Licensee's obligations under this section are conditioned upon MyECheck providing Licensee: (1) prompt written notice of the existence of such claim, suit, action or proceeding (each a "claim"); (2) sole control over the defense or settlement of such claim; and (3) assistance at Licensee's request to the extent reasonably necessary for the defense of such claim. The foregoing sets forth Licensee's sole and exclusive obligation and MyECheck's sole and exclusive remedy for any claim of intellectual property infringement or misappropriation relating to the Licensee Materials. Notwithstanding the foregoing, Licensee shall not indemnify, defend or hold harmless MyECheck for any claims arising from: (a) any MyECheck intellectual property or software incorporated in or combined with the Licensee Materials where in the absence of such incorporated or combined item, there would not have been infringement; (b) Licensee Materials which have been altered or modified by MyECheck (other than in response to a request by Licensee), where in the absence of such alteration or modification the Licensee Materials would not be infringing; (c) use of an any version of the Licensee Materials for which Licensee has made available an updated, revised or repaired subsequent version; or (d) the gross negligence or willful misconduct of MyECheck or any of its agents, subcontractors or employees. Upon notice of any claim of infringement or upon reasonable belief of the likelihood of such a claim, Licensee shall have the right, at its option, to: (x) obtain the rights to continued use of the Licensee Materials; (y) substitute other suitable, functionally-equivalent, non-infringing materials; or (z) replace or modify the Licensee Materials or their design so that they are no longer infringing. Furthermore, Licensee agrees agrees-to maintain commercial general liability insurance of at least $2.5 million, covering Licensee's obligations contained herein on a claims-claims made basis with coverage for at least one year from the date of completion of the services. .. The provisions of this Section 12 herein shall survive for a period of one year following the earlier of (a) completion of the Maintenance services or (b) termination of this Agreement.

Licensee Indemnity. Licensee agrees to indemnify, defend and hold harmless MyECheck from and against all damages and costs (including reasonable attorneys' fees) finally awarded against MyECheck (or finally settled upon) and arising from: (i) any claim of personal injury or tangible personal property damage (excluding data) of whatsoever nature or kind arising, in whole or in part, out of, as a result of, or in connection with the gross negligent or willful misconduct of the Licensee, its employees, subcontractors or agents; (ii) any claim brought against MyECheck by a third party alleging that the Licensee Materials (as defined in Exhibit C) directly infringe any U.S. copyright or trademark or misappropriate any trade secret (recognized as such under the Uniform Trade Secrets Act) in existence as of the Effective Date; or (iii) any claim brought against MyECheck by a third party arising from or relating to any modification of the Software by the Licensee or any use of the Software other than as permitted under this Agreement. The parties acknowledge and agree that the Licensee's obligations under this section are conditioned upon MyECheck providing the Licensee: (1) prompt written notice of the existence of such claim, suit, action or proceeding (each a "claim"); (2) sole control over the defense or settlement of such claim; and (3) assistance at the Licensee's request to the extent reasonably necessary for the defense of such claim. The foregoing sets forth Licensee's sole and exclusive obligation and MyECheck's sole and exclusive remedy for any claim of intellectual property infringement or misappropriation relating to the Licensee Materials. Notwithstanding the foregoing, Licensee shall need not indemnify, defend or nor hold harmless MyECheck for any claims arising from: (a) any MyECheck intellectual property or software incorporated in or combined with the Licensee Materials where in the absence of such incorporated or combined item, there would not have been infringement; (b) Licensee Materials which have been altered or modified by MyECheck (other than in response to a request by Licensee), where in the absence of such alteration or modification the Licensee Materials would not be infringing; (c) use of an any version of the Licensee Materials for which Licensee has made available an updated, revised or repaired subsequent version; or (d) the gross negligence or willful misconduct of MyECheck or any of its agents, subcontractors or employees. Upon notice of any claim of infringement or upon reasonable belief of the likelihood of such a claim, Licensee shall have the right, at its option, to: (x) obtain the rights to continued use of the Licensee Materials; (y) substitute other suitable, functionally-equivalent, non-infringing materials; or (z) replace or modify the Licensee Materials or their design so that they are no longer infringing. Furthermore, Licensee agrees to maintain commercial general liability insurance of at least $2.5 million, covering Licensee's obligations contained herein on a claims-made basis with coverage for at least one year from the date of completion of the services. The provisions of this Section 12 13 herein shall survive for a period of one year following the earlier of (a) completion of the Maintenance services or (b) termination of this Agreement.

Licensee Indemnity. Licensee agrees (a) LICENSEE shall defend, hold harmless and indemnify LICENSOR, its Affiliates and their respective Representatives, successors and permitted assigns (“LICENSOR Indemnitees”), from any and all liability, loss (including legal fees), expenses, or damages suffered, incurred by or imposed on any one or more LICENSOR Indemnitees as the result of claims, threats, demands, suits, actions, costs or judgments asserted against the LICENSOR Indemnitees by a Third Party (collectively, “LICENSOR Claims”), arising out of: (i) the Commercialization of the Licensed Technology or any activities related thereto, the use of the License granted under Article 2 (License Grant), and the distribution, sale or use of the Licensed Products by LICENSEE or its Affiliates, Representatives, or SUBLICENSEEs including, without limitation, any product liability claims resulting therefrom, but excluding therefrom, in all cases, any matter for which LICENSOR has indemnified the LICENSEE Parties under Section 7.8 (LICENSOR Indemnity); (ii) LICENSEE’s or its Representatives’ or Affiliates’ gross negligence or willful misconduct in connection with this Agreement; or (iii) LICENSEE’s or its Representatives’ or Affiliates’ breach of this Agreement that is not cured within 90 calendar days of receiving a written notice from LICENSOR detailing the particulars of the breach and requesting that the same be cured, or such longer period of time as may be agreed to by the Parties in writing; provided that LICENSEE shall not be obligated to indemnify, defend and hold harmless MyECheck from and against all damages and costs (including reasonable attorneys' fees) finally awarded against MyECheck (or finally settled upon) and arising from: (i) any claim of personal injury or tangible personal property damage (excluding data) of whatsoever nature or kind arising, in whole or in part, out of, as a result of, or in connection with the gross negligent or willful misconduct of Licensee, its employees, subcontractors or agents; (ii) any claim brought against MyECheck by a third party alleging that the Licensee Materials (as defined in Exhibit C) directly infringe any U.S. copyright or trademark or misappropriate any trade secret (recognized as such under the Uniform Trade Secrets Act) in existence as of the Effective Date; or (iii) any claim brought against MyECheck by a third party arising from or relating to any modification of the Software by Licensee or any use of the Software other than as permitted under this Agreement. The parties acknowledge and agree that Licensee's obligations under this section are conditioned upon MyECheck providing Licensee: (1) prompt written notice of the existence of such claim, suit, action or proceeding (each a "claim"); (2) sole control over the defense or settlement of such claim; and (3) assistance at Licensee's request LICENSOR Indemnitees to the extent reasonably necessary for that any LICENSOR Claims arise from breach of this Agreement by the defense of such claim. The foregoing sets forth Licensee's sole and exclusive obligation and MyECheck's sole and exclusive remedy for any claim of intellectual property infringement LICENSOR Indemnitees or misappropriation relating to the Licensee Materials. Notwithstanding the foregoing, Licensee shall not indemnify, defend or hold harmless MyECheck for any claims arising from: (a) any MyECheck intellectual property or software incorporated in or combined with the Licensee Materials where in the absence of such incorporated or combined item, there would not have been infringement; (b) Licensee Materials which have been altered or modified by MyECheck (other than in response to a request by Licensee), where in the absence of such alteration or modification the Licensee Materials would not be infringing; (c) use of an any version of the Licensee Materials for which Licensee has made available an updated, revised or repaired subsequent version; or (d) from the gross negligence or willful misconduct of MyECheck or any of its agents, subcontractors or employees. Upon notice of any claim of infringement or upon reasonable belief of on the likelihood part of such a claim, Licensee shall have the right, at its option, to: (x) obtain the rights to continued use of the Licensee Materials; (y) substitute other suitable, functionally-equivalent, non-infringing materials; or (z) replace or modify the Licensee Materials or their design so that they are no longer infringing. Furthermore, Licensee agrees to maintain commercial general liability insurance of at least $2.5 million, covering Licensee's obligations contained herein on a claims-made basis with coverage for at least one year from the date of completion of the services. The provisions of this Section 12 herein shall survive for a period of one year following the earlier of (a) completion of the Maintenance services or LICENSOR Indemnitees. (b) Subject to Applicable Law, the indemnity provided in this Section 7.5 (LICENSEE Indemnity) shall survive any expiry or termination of this Agreement. LICENSEE acknowledges that LICENSOR is entering this Agreement and obtaining the foregoing indemnification on its own behalf and also on behalf of the LICENSOR Indemnitees and is holding the rights contained in this Section 7.5 (LICENSEE Indemnity) in trust for the LICENSOR Indemnitees.

Licensee Indemnity. Licensee agrees to indemnifyshall, at its expense, defend and hold harmless MyECheck or settle any claim, action or allegation brought against ABT (to the extent not covered by Section 9.1) arising from and against all damages and costs (including reasonable attorneys' fees) finally awarded against MyECheck (the act or finally settled upon) and arising from: (i) any claim of personal injury or tangible personal property damage (excluding data) of whatsoever nature or kind arising, in whole or in part, out of, as a result of, or in connection with the gross negligent or willful misconduct omission of Licensee, its employees, subcontractors or agents; (ii) any claim brought against MyECheck by where a third party alleging that alleges fraud, misrepresentation, or unfair business practices arising from the Licensee Materials (as defined in Exhibit C) directly infringe any U.S. copyright or trademark or misappropriate any trade secret (recognized as such under the Uniform Trade Secrets Act) in existence as operation of the Effective Date; Local Business, or (iii) any claim brought against MyECheck by those that arise from a third party arising from allegation that a Localized Version or relating to Extension infringes any modification copyright, trade secret or other intellectual property right in the Territory of the Software any third party, or that any Localization or Extension developed by Licensee infringes such rights as a necessary result of specifications required by Licensee, and shall pay any final judgments awarded or settlements entered into; provided that ABT gives prompt written notice to Licensee of any such claim, action or allegation of infringement and gives Licensee the authority to proceed as contemplated herein. Licensee will have the exclusive right to defend any such claim, action or allegation and make settlements thereof in its own discretion, and ABT may not settle or compromise such claim, action or allegation, except with the prior written consent of Licensee. ABT shall give such assistance and information as Licensee may reasonably require to settle or oppose such claims. In the event any such infringement, claim, action or allegation is brought or threatened, Licensee may, at its sole option and expense: (a) procure for ABT the right to continue use of the Software other than as permitted under this Agreement. The parties acknowledge and agree that Licensee's obligations under this section are conditioned upon MyECheck providing Licensee: (1) prompt written notice of the existence of such claim, suit, action Localized Version or proceeding (each a "claim")Extension or infringing part thereof; (2) sole control over the defense or settlement of such claim; and (3) assistance at Licensee's request to the extent reasonably necessary for the defense of such claim. The foregoing sets forth Licensee's sole and exclusive obligation and MyECheck's sole and exclusive remedy for any claim of intellectual property infringement or misappropriation relating to the Licensee Materials. Notwithstanding the foregoing, Licensee shall not indemnify, defend or hold harmless MyECheck for any claims arising from: (a) any MyECheck intellectual property or software incorporated in or combined with the Licensee Materials where in the absence of such incorporated or combined item, there would not have been infringement; or (b) Licensee Materials which have been altered modify or modified by MyECheck (amend the Localized Version or Extension or infringing part thereof, or replace the Localized Version or Extension or infringing part thereof with other than in response to a request by Licensee), where in materials having substantially the absence of such alteration same or modification the Licensee Materials would not be infringing; (c) use of an any version of the Licensee Materials for which Licensee has made available an updated, revised or repaired subsequent version; or (d) the gross negligence or willful misconduct of MyECheck or any of its agents, subcontractors or employees. Upon notice of any claim of infringement or upon reasonable belief of the likelihood of such a claim, Licensee shall have the right, at its option, to: (x) obtain the rights to continued use of the Licensee Materials; (y) substitute other suitable, functionally-equivalent, non-infringing materials; or (z) replace or modify the Licensee Materials or their design so that they are no longer infringing. Furthermore, Licensee agrees to maintain commercial general liability insurance of at least $2.5 million, covering Licensee's obligations contained herein on a claims-made basis with coverage for at least one year from the date of completion of the services. The provisions of this Section 12 herein shall survive for a period of one year following the earlier of (a) completion of the Maintenance services or (b) termination of this Agreementbetter capabilities.

Licensee Indemnity. Licensor shall defend or settle any proceeding brought against Licensee agrees to indemnifythe extent that it is based on a claim that the SYSTEM made to Licensor's specifications and being within the scope of the ------------------------------------------------------------------------------- Page 3 Licensor's Initials: Licensee's Initials: LCH -------------------- -------------------- CONFIDENTIAL LICENSE AND MAINTENANCE AGREEMENT FACTS Agreement hereunder constitutes and infringement of a U.S. copyright or an existing U.S. patent provided that Licensor is notified of the claim promptly in writing and is given complete authority and information required for the complete defense of same, defend and hold harmless MyECheck from and against Licensor shall pay all damages and costs (including reasonable attorneys' fees) finally awarded therein against MyECheck (or finally settled upon) and arising from: (i) any claim of personal injury or tangible personal property damage (excluding data) of whatsoever nature or kind arisingLicensee, but Licensor shall, in whole no event, be responsible for any costs, expenses or compromise incurred or made by Licensee without Licensor's prior written consent. In the event that SYSTEM or any Module of SYSTEM furnished hereunder is, in partLicensor's opinion, out oflikely to or does become the subject of a claim for infringement of a copyright or patent, as a result ofLicensor may, at its option and expense, procure for Licensee the right to continue using such materials, modify them to make them non-infringing, or substitute other materials of similar capability. If none of the foregoing alternatives is reasonably available to Licensor in connection with its opinion, Licensor may terminate the gross negligent or willful misconduct License of such Module upon thirty (30) days written notice to Licensee, its employees, subcontractors or agentsin which case Licensor shall refund to Licensee all fees (exclusive of: Training Fees; (ii) any claim brought against MyECheck by a third party alleging that Training Expenses; Quarterly Fees; Software Relicensing Fees; Additional Licensing Fees; taxes; and the Licensee Materials (as defined in Exhibit C) directly infringe any U.S. copyright or trademark or misappropriate any trade secret (recognized as such under the Uniform Trade Secrets Act) in existence as price of the Effective Date; or (iiiCOMPUTER) any claim brought against MyECheck by a third party arising from or relating paid to any modification of the Software Licensor by Licensee or any use of for the Software other than as permitted infringing Module under this Agreement. The parties acknowledge If, however, the Module or SYSTEM is likely to become the subject of a filed claim for copyright infringement but has not, Licensee may, at its peril, elect to continue using the same until an injunction issues or the claim has been withdrawn. In such event Licensee agrees to defend any action involving such claim and agree that Licensee's obligations under this section are conditioned upon MyECheck providing Licensee: (1) prompt written notice to indemnify Licensor with respect to all costs, damages and attorneys fees attributable to use of the existence SYSTEM or Module by Licensee after notice from Licensor of such the possibility of a claim. Licensor may participate, suitat its expense, action or proceeding (each a "claim"); (2) sole control over the defense or settlement of such claim; and (3) assistance at Licensee's request to the extent reasonably necessary for in the defense of such claimany action that may arise out of any claim made against Licensee from its use after notice from Licensor against Licensor. The foregoing sets forth Licensee's sole and exclusive obligation and MyECheck's sole and exclusive remedy Licensor shall have no liability for any claim of intellectual property infringement or misappropriation relating to based upon the Licensee Materials. Notwithstanding use of other than a current unaltered release of the foregoing, Licensee shall not indemnify, defend or hold harmless MyECheck for any claims arising from: (a) any MyECheck intellectual property or software incorporated in or combined with SYSTEM available from Licensor if such infringement would have been avoided by the Licensee Materials where in the absence use of such incorporated current unaltered release, or combined item, there would not have been infringement; (b) Licensee Materials which have been altered or modified by MyECheck (other than in response to a request by Licensee), where in the absence of such alteration or modification the Licensee Materials would not be infringing; (c) upon use of an any version a combination of the Licensee Materials for which Licensee has made available an updated, revised SYSTEM with non-Licensor programs or repaired subsequent version; combination of the unaltered SYSTEM with any other programs or (d) data. The foregoing states the gross negligence entire liability of Licensor with respect to infringement of any copyright or willful misconduct of MyECheck patent by the SYSTEM or Modules or any of its agents, subcontractors or employees. Upon notice of any claim of infringement or upon reasonable belief part of the likelihood SYSTEM or Modules, and is in lieu of such a claimall warranties or representations, Licensee shall have the rightexpressed or implied, at its option, to: (x) obtain the rights to continued use of the Licensee Materials; (y) substitute other suitable, functionally-equivalent, non-infringing materials; or (z) replace or modify the Licensee Materials or their design so that they are no longer infringing. Furthermore, Licensee agrees to maintain commercial general liability insurance of at least $2.5 million, covering Licensee's obligations contained herein on a claims-made basis with coverage for at least one year from the date of completion of the services. The provisions of this Section 12 herein shall survive for a period of one year following the earlier of (a) completion of the Maintenance services or (b) termination of this Agreementin regard thereto.

Licensee Indemnity. Subject to the terms and conditions of this Section 10, Licensee agrees to shall indemnify, defend and hold harmless MyECheck from Licensor and its Affiliates, and each of their respective directors, officers, employees, agents, and representatives (collectively “Licensor Indemnified Parties”) against any and all damages liabilities, losses, damages, fines, fees, penalties, costs and costs expenses (including reasonable attorneys' ’ fees) finally awarded against MyECheck (collectively, “Damages”) incurred or finally settled uponsuffered by the Licensor Indemnified Parties in connection with any third party claim arising or resulting from (a) a breach or alleged breach by Licensee or its Affiliates of any of its duties, obligations, representations and arising from: warranties contained in this Agreement, including without limitation a violation of the Quality and Programming Standards; (ib) any claim actual or alleged infringement or violation of personal injury patent, trademark or tangible personal property damage (excluding data) service mark, copyright, trade secret, moral rights, rights of whatsoever nature or kind arisingpublicity, in whole or in part, out of, as a result ofprivacy, or any other intangible or intellectual property rights arising from or alleged to have arisen from any action or activity of Licensee other than the use by Licensee of the Trademarks, Licensed Domain Name or Licensor Content as specifically authorized herein; (c) any use by Licensee of any Trademark, Licensed Domain Name or Licensor Content contrary to the terms of this Agreement or any manner not authorized herein; (d) any act or omission by Licensee or Licensee’s Affiliates, sub-licensees, agents or employees (whether wrongful, negligent or otherwise) in connection with this Agreement, the Managed Assets, Third Party Agreements, Co-Branded Agreements, or Licensee’s responsibilities hereunder; (e) any claims arising in connection with the gross negligent operation and exploitation of any of the Managed Assets after the Start Date, including claims brought by retailers, consumers, governmental agencies or willful misconduct of Licenseeother regulatory groups, its sub-licensees, service providers, employees, subcontractors contractors, or agentsothers; (iif) the distribution, sale, advertisement or other exploitation of any of the Managed Assets after the Start Date; (g) any claim brought against MyECheck by a third party alleging that claims related to End User Data, including without limitation, the Licensee Materials (as defined in Exhibit C) directly infringe any U.S. copyright or trademark or misappropriate any trade secret (recognized as such under the Uniform Trade Secrets Act) in existence as of the Effective Dateuse and storage thereof; or (iiih) any claim brought against MyECheck by a third party arising from violation or alleged violation of any applicable law, rule, or regulation after the Start Date, including without limitation those relating to any modification of the Software by Licensee or any use of the Software other than as permitted under this Agreement. The parties acknowledge and agree that Licensee's obligations under this section are conditioned upon MyECheck providing Licensee: (1) prompt written notice of the existence of such claim, suit, action or proceeding (each a "claim"); (2) sole control over the defense or settlement of such claim; and (3) assistance at Licensee's request to the extent reasonably necessary for the defense of such claim. The foregoing sets forth Licensee's sole and exclusive obligation and MyECheck's sole and exclusive remedy for any claim of intellectual property infringement or misappropriation relating to the Licensee Materials. Notwithstanding the foregoing, Licensee shall not indemnify, defend or hold harmless MyECheck for any claims arising from: (a) any MyECheck intellectual property or software incorporated in or combined with the Licensee Materials where in the absence of such incorporated or combined item, there would not have been infringement; (b) Licensee Materials which have been altered or modified by MyECheck (other than in response to a request by Licensee), where in the absence of such alteration or modification the Licensee Materials would not be infringing; (c) use of an any version of the Licensee Materials for which Licensee has made available an updated, revised or repaired subsequent version; or (d) the gross negligence or willful misconduct of MyECheck or any of its agents, subcontractors or employees. Upon notice maintenance of any claim of infringement legally mandated records or upon reasonable belief of the likelihood of such a claim, Licensee shall have the right, at its option, to: (x) failures to obtain the rights to continued use of the Licensee Materials; (y) substitute other suitable, functionally-equivalent, non-infringing materials; necessary licenses or (z) replace or modify the Licensee Materials or their design so that they are no longer infringing. Furthermore, Licensee agrees to maintain commercial general liability insurance of at least $2.5 million, covering Licensee's obligations contained herein on a claims-made basis with coverage for at least one year permissions from the date of completion of the services. The provisions of this Section 12 herein shall survive for a period of one year following the earlier of (a) completion of the Maintenance services or (b) termination of this Agreementregulatory bodies.

Licensee Indemnity. Licensee agrees to indemnify, defend and hold harmless MyECheck from and against all damages and costs (including reasonable attorneys' fees) finally awarded against MyECheck XxXXxxxx (or finally settled upon) and arising from: (i) any claim of personal injury or tangible personal property damage (excluding data) of whatsoever nature or kind arising, in whole or in part, out of, as a result of, or in connection with the gross negligent or willful misconduct of the Licensee, its employees, subcontractors or agents; (ii) any claim brought against MyECheck by a third party alleging that the Licensee Materials (as defined in Exhibit C) directly infringe any U.S. copyright or trademark or misappropriate any trade secret (recognized as such under the Uniform Trade Secrets Act) in existence as of the Effective Date; or (iii) any claim brought against MyECheck by a third party arising from or relating to any modification of the Software by the Licensee or any use of the Software other than as permitted under this Agreement. The parties acknowledge and agree that the Licensee's obligations under this section are conditioned upon MyECheck providing the Licensee: (1) prompt written notice of the existence of such claim, suit, action or proceeding (each a "claim"); (2) sole control over the defense or settlement of such claim; and (3) assistance at the Licensee's request to the extent reasonably necessary for the defense of such claim. The foregoing sets forth Licensee's sole and exclusive obligation and MyECheck's sole and exclusive remedy for any claim of intellectual property infringement or misappropriation relating to the Licensee Materials. Notwithstanding the foregoing, Licensee shall need not indemnify, defend or nor hold harmless MyECheck for any claims arising from: (a) any MyECheck intellectual property or software incorporated in or combined with the Licensee Materials where in the absence of such incorporated or combined item, there would not have been infringement; (b) Licensee Materials which have been altered or modified by MyECheck (other than in response to a request by Licensee), where in the absence of such alteration or modification the Licensee Materials would not be infringing; (c) use of an any version of the Licensee Materials for which Licensee has made available an updated, revised or repaired subsequent version; or (d) the gross negligence or willful misconduct of MyECheck or any of its agents, subcontractors or employees. Upon notice of any claim of infringement or upon reasonable belief of the likelihood of such a claim, Licensee shall have the right, at its option, to: (x) obtain the rights to continued use of the Licensee Materials; (y) substitute other suitable, functionally-equivalent, non-infringing materials; or (z) replace or modify the Licensee Materials or their design so that they are no longer infringing. Furthermore, Licensee agrees to maintain commercial general liability insurance of at least $2.5 million, covering Licensee's obligations contained herein on a claims-made basis with coverage for at least one year from the date of completion of the services. The provisions of this Section 12 13 herein shall survive for a period of one year following the earlier of (a) completion of the Maintenance services or (b) termination of this Agreement.