Representations Warranties and Indemnification 10.1 The Publisher warrants to the Institution that it is entitled to grant the licence in this Licence and that the use of the Licensed Material as contemplated in this Licence will not infringe any copyright or other proprietary or intellectual property rights of any natural or legal person. The Publisher agrees that the Institution shall have no liability and the Publisher will indemnify, defend and hold the Institution harmless against any and all direct damages, liabilities, claims, causes of action, legal fees and costs incurred by the Institution in defending against any third party claim of intellectual property rights infringements or threats of claims thereof with respect of the Institution's and Authorised Users use of the Licensed Material, provided that:
(1) the use of the Licensed Material has been in full compliance with the terms and conditions of this Licence; (2) the Institution provides the Publisher with prompt notice of any such claim or threat of claim; (3) the Institution co-operates fully with the Publisher in the defence or settlement of such claim; and (4) the Publisher has sole and complete control over the defence or settlement of such claim.
10.2 The Publisher reserves the right to change the content, presentation, user facilities or availability of parts of the Licensed Material and to make changes in any software used to make the Licensed Material available at their sole discretion. The Publisher will notify the Institution of any substantial change to the Licensed Material.
10.3 While the Publisher has no reason to believe that there are any inaccuracies or defects in the information contained in the Licensed Material, the Publisher makes no representation and gives no warranty express or implied with regard to the information contained in or any part of the Licensed Material including (without limitation) the fitness of such information or part for any purposes whatsoever and the Publisher accepts no liability for loss suffered or incurred by the Institution or Authorised Users as a result of their reliance on the Licensed Material.
10.4 In no circumstances will the Publisher be liable to the Institution for any loss resulting from a cause over which the Publisher does not have direct control, including but not limited to failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, unauthorised access, theft, or operator errors.
10.5 The Institution agrees to notify the Publisher immediately and provide full particulars in the event that it becomes aware of any actual or threatened claims by any third party in connection with any works contained in the Licensed Material. It is expressly agreed that upon such notification, or if the Publisher becomes aware of such a claim from other sources, the Publisher may remove such work(s) from the Licensed Material. Failure to report knowledge of any actual or threatened claim by any third party shall be deemed a material breach of this Licence.
10.6 Nothing in this Licence shall make the Institution liable for breach of the terms of this Licence by any Authorised User provided that the Institution did not cause, knowingly assist or condone the continuation of such breach after becoming aware of an actual breach having occurred.
10.7 The Institution represents to the Publisher that its computer system through which the Licensed Material will be used is configured, and procedures are in place, to prohibit access to the Licensed Material by any person other than an Authorised User; that it shall inform Authorised Users about the conditions of use of the Licensed Material; and that during the term of this Licence, the Institution will continue to make all reasonable efforts to bar non- permitted access and to convey appropriate use information to its Authorised Users.
Representations, Warranties and Indemnities You represent and warrant to Prime Publishing and its Affiliates that (a) you have the right, power, and authority necessary to enter into this Agreement, to fully perform your obligations hereunder, and to grant the licenses set forth in Paragraphs 3 and 5 above, (b) you will comply fully with all terms of this Agreement, (c) the Materials submitted to Prime Publishing by you, and Prime Publishing's and its Affiliates' exercise of their rights hereunder, do not and will not violate, misappropriate or infringe any intellectual property right, including but not limited to trademark rights, copyrights, moral rights and publicity rights of any third party, (d) you possess all rights necessary for the reproduction, distribution, transmission, public performance, public display, and other exploitation of the Materials by Prime Publishing and its Affiliates as permitted hereunder, (e) the Materials are not pornographic, obscene, libelous, defamatory, tortious, or otherwise unlawful, and (f) all factual statements submitted by you are accurate and not misleading. You agree to indemnify, defend, and hold Prime Publishing and its Affiliates harmless from all claims, liabilities, damages, and expenses (including, without limitation, reasonable attorneys' fees and expenses) arising from your breach of any representation or warranty set forth in this paragraph. 8)
Warranties and Indemnification Employee warrants that he is not a party to any contract, restrictive covenant, or other agreement purporting to limit or otherwise adversely affecting his ability to secure employment with any third party. Alternatively, should any such agreement exist, Employee warrants that the contemplated services to be performed hereunder will not violate the terms and conditions of any such agreement. In either event, Employee agrees to fully indemnify and hold the Company harmless from any and all claims arising from, or involving the enforcement of, any such restrictive covenants or other agreements.
Warranties, Representations, and Indemnification a. Licensee hereby agrees that Licensor has not made any guarantees or promises that the Beat fits the particular creative use or musical purpose intended or desired by the Licensee. The Beat, its sound recording, and the underlying musical composition embodied therein are licensed to the Licensee “as is” without warranties of any kind or fitness for a particular purpose.
b. Producer warrants and represents that he has the full right and ability to enter into this agreement, and is not under any disability, restriction, or prohibition with respect to the grant of rights hereunder. Producer warrants that the manufacture, sale, distribution, or other exploitation of the New Song hereunder will not infringe upon or violate any common law or statutory right of any person, firm, or corporation; including, without limitation, contractual rights, copyrights, and right(s) of privacy and publicity and will not constitute libel and/or slander. Licensee warrants that the manufacture, sale, distribution, or other exploitation of the New Song hereunder will not infringe upon or violate any common law or statutory right of any person, firm, or corporation; including, without limitation, contractual rights, copyrights, and right(s) of privacy and publicity and will not constitute libel and/or slander. The foregoing notwithstanding, Producer undertakes no responsibility whatsoever as to any elements added to the New Song by Licensee, and Licensee indemnifies and holds Producer harmless for any such elements. Producer warrants that he did not “sample” (as that term is commonly understood in the recording industry) any copyrighted material or sound recordings belonging to any other person, firm, or corporation (hereinafter referred to as “Owner”) without first having notified Licensee. The licensee shall have no obligation to approve the use of any sample thereof; however, if approved, any payment in connection therewith, including any associated legal clearance costs, shall be borne by Licensee. Knowledge by Licensee that “samples” were used by Producer which was not affirmatively disclosed by Producer to Licensee shall shift, in whole or in part, the liability for infringement or violation of the rights of any third party arising from the use of any such “sample” from Producer to Licensee.
c. Parties hereto shall indemnify and hold each other harmless from any and all third party claims, liabilities, costs, losses, damages or expenses as are actually incurred by the non-defaulting party and shall hold the non-defaulting party, free, safe, and harmless against and from any and all claims, suits, demands, costs, liabilities, loss, damages, judgments, recoveries, costs, and expenses; (including, without limitation, reasonable attorneys' fees), which may be made or brought, paid, or incurred by reason of any breach or claim of breach of the warranties and representations hereunder by the defaulting party, their agents, heirs, successors, assigns and employees, which have been reduced to final judgment; provided that prior to final judgment, arising out of any breach of any representations or warranties of the defaulting party contained in this agreement or any failure by defaulting party to perform any obligations on its part to be performed hereunder the non-defaulting party has given the defaulting party prompt written notice of all claims and the right to participate in the defense with counsel of its choice at its sole expense. In no event shall Artist be entitled to seek injunctive or any other equitable relief for any breach or non-compliance with any provision of this agreement.
User Warranties and Indemnification You warrant to Credit Union that:
Warranties and Indemnity 5.1 In consideration of the Investor agreeing to enter into this Agreement, to purchase the Sale Shares and to subscribe for the Subscription Shares, the Existing Shareholder hereby represents and warrants to the Investor in the terms set out in Part 3 of the Schedule.
5.2 In consideration of the Investor agreeing to enter into this Agreement, to purchase the Sale Shares and to subscribe for the Subscription Shares, the Company hereby represents and warrants to the Investor in the terms set out in Part 3 of the Schedule.
5.3 The Warranties shall be given at the date of Completion.
5.4 The Existing Shareholder and the Company acknowledge that they are aware that the Investor, when agreeing to purchase the Sale Shares and subscribe for the Subscription Shares is or will be relying on the accuracy of the Warranties (save only as disclosed in the Disclosure Letter) and on the Tax Undertaking. The Warranties and the Tax Undertaking shall survive Completion of the purchase of the Sale Shares and the subscription for the Subscription Shares by the Investor.
5.5 Each Warranty which is set out in a separate paragraph, or which could be treated as a separate Warranty, shall be construed independently of any other to the intent that the rights of the Investor under, and the meaning given to, any one such Warranty shall not be restricted by reference to any other Warranty.
5.6 If the Investor makes a claim against the Existing Shareholder in relation to any breach of Warranty but, in relation to the same subject matter, does not make (or, having made, does not succeed with), any claim against the Company under Clause 5.2, the Existing Shareholder shall not have or pursue any claim or third party action to join in, claim against, seek a contribution from or otherwise claim or seek damages or compensation from the Company or any other Group Company in respect of any such claim and the Existing Shareholder hereby confirms to the Investor that neither the Company nor any Group Company has entered into or will enter into any indemnity or other agreement or arrangement concerning the liabilities of the Existing Shareholder for any breach of the Warranties.
5.7 The Existing Shareholder and the Company shall not be liable in respect of any claim under the Warranties to the extent that the matter or matters giving rise to such a claim are fairly disclosed in the Disclosure Letter. The Existing Shareholder and the Company each undertake to the Investor that any particulars of such matter or matters are true and accurate in all material respects and are not misleading in any material respect.
5.8 The aggregate liability of the Existing Shareholder in respect of any breach or breaches of the Warranties and the Tax Undertaking shall be limited to a maximum sum of (pound)750,000 ("the Maximum Amount").
5.9 Neither the Existing Shareholder nor the Company shall have any liability under the Warranties and the Tax Undertaking unless and until the liability thereunder exceeds (pound)35,000 and thereafter the Existing Shareholder shall be liable for the entire amount up to the Maximum Amount.
5.10 The Existing Shareholder and the Company shall not be liable in respect of any claim under the Warranties or the Tax Undertaking (as the case may be) unless the claim shall have been notified to her before the expiry of a period of 12 months from Completion in the case of a claim under the Warranties and 36 months from Completion in the case of a claim under the Tax Undertaking. Any claim so notified will cease to be recoverable if legal proceedings in respect of such claim have not been commenced within 15 months from Completion in the case of a claim under the Warranties and 48 months from Completion in the case of a claim under the Tax Undertaking (unless settled, compromised or withdrawn within such period). In this respect, legal proceedings shall include commencement of any agreed arbitration. Notice of a claim shall include reasonable details of the nature and substance of the claim.
5.11 No liability or increase in liability (as the case may be) shall attach to the Existing Shareholder or the Company in respect of a claim under this Agreement to the extent that such claim arises or is increased as a consequence of a change in the law after the date hereof.
5.12 In the event that the Company is entitled to recover from a third party (whether by payment, discount, credit, relief or otherwise howsoever) any sum in relation to any loss, liability or damage which is the subject of a claim under the Warranties or the Tax Undertaking, the Company shall take (at the expense of the Existing Shareholder) such reasonable steps or proceedings as she may reasonably require and shall act in accordance with any such requirements subject to the Company being indemnified by the Existing Shareholder against all reasonable costs and expenses incurred in connection therewith and shall keep the Investor promptly informed of the progress of any such steps, proceedings or actions.
5.13 In the event of the Existing Shareholder or the Company having paid to the Investor an amount in respect of a claim under the Warranties or the Tax Undertaking and subsequent to the date of making such payment the Investor recovers from a third party (whether by payment, discount, credit, relief or otherwise howsoever) a sum which is referable to that payment then the Investor shall as soon as reasonably practicable repay to the Existing Shareholder or the Company of so much of the amount paid by the third party as does not exceed the sum paid by the Existing Shareholder or the Company to the Investor less the reasonable costs of the Investor in recovering such sum.
5.14 If any claim under the Warranties shall arise by reason of some liability of the Company which, at the time the claim is notified to the Existing Shareholder, is contingent only, the Existing Shareholder shall not be under any obligation to make any payment to the Investor in respect of such claim until such time as the contingent liability shall become an actual liability.
5.15 Nothing herein or in the Warranties shall be deemed to relieve the Investor from any common law or other duty to mitigate any loss or damage incurred by it.
5.16 Any amount paid by the Existing Shareholder to the Investor in respect of any breach of the Warranties shall be treated as a reduction in the consideration for the Sale Shares.
5.17 The Investor warrants to the Existing Shareholder that the Investor has power to enter into this Agreement and to perform the obligations expressed to be assumed by it and the Investor and Eurotelecom have taken or will, as soon as reasonably practicable, take all necessary corporate action to authorise the execution, delivery and performance of this Agreement and the issue of the Eurotelecom Shares.
Seller’s Representations, Warranties and Covenants Seller hereby represents, warrants and covenants to Buyer as follows:
Nonsurvival of Representations, Warranties and Agreements None of the representations, warranties, covenants and agreements in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Effective Time, except for those covenants and agreements contained herein and therein which by their terms apply in whole or in part after the Effective Time.
Purchaser’s Representations, Warranties and Covenants In order to induce the Issuer to sell and issue the Securities to the Purchaser under one or more exemptions from registration under the Securities Act, the Purchasers, severally and not jointly, represent and warrant to the Issuer, and covenant with the Issuer, that:
(i) Such Purchaser has the requisite power and authority to enter into and perform this Agreement, and each of the other agreements entered into by the parties hereto in connection with the transactions contemplated by this Agreement (collectively, the "Transaction Documents"), and to purchase the Securities in accordance with the terms hereof and thereof.
(ii) The execution and delivery of the Transaction Documents by the Purchaser and the consummation by it of the transactions contemplated thereby have been duly and validly authorized by the Purchaser's organizational documents and no further consent or authorization is required by the Purchaser.
(iii) The Transaction Documents have been duly and validly executed and delivered by the Purchaser.
(iv) The Transaction Documents, and each of them, constitutes the valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of creditors' rights and remedies.
(b) The execution, delivery and performance of the Transaction Documents by the Purchaser and the consummation by the Purchaser of the transactions contemplated thereby will not conflict with or constitute a default under any agreement or instrument to which the Purchaser is a party or by which the Purchaser is bound.
(c) The Purchaser is acquiring the Securities for investment for its own account, and not with a view toward distribution thereof, and with no present intention of dividing its interest with others or reselling or otherwise transferring or disposing all or any portion of either the Notes or Warrants. The undersigned has not offered or sold a participation in this purchase of either the Notes or Warrants, and will not offer or sell any interest therein. The Purchaser further acknowledges that the Purchaser does not have in mind any sale of either the Notes or Warrants currently or after the passage of a fixed or determinable period of time or upon the occurrence or non-occurrence of any predetermined events or consequence; and that it has no present or contemplated agreement, undertaking, arrangement, obligation, indebtedness or commitment providing for or which is likely to compel a disposition of either the Notes or Warrants and is not aware of any circumstances presently in existence that are likely in the future to prompt a disposition thereof.
(e) The Purchaser acknowledges that the Securities have been offered to it in direct communication between itself and the Issuer and not through any advertisement of any kind.
(f) The Purchaser acknowledges that the Issuer has given it access to all information relating to the Issuer’s business that it has requested. The Purchaser has reviewed all materials relating to the Issuer's business, finance and operations which it has requested and the Purchaser has reviewed all of such materials as the Purchaser, in the Purchaser’s sole and absolute discretion shall have deemed necessary or desirable. The Purchaser has had an opportunity to discuss the business, management and financial affairs of the Issuer with the Issuer's management. Specifically but not by way of limitation, the Purchaser acknowledges the Issuer’s publicly available filings made periodically with the SEC, which filings are available at xxx.xxx.xxx and which filings the Purchaser acknowledges reviewing or having had the opportunity of reviewing.
(g) The Purchaser acknowledges that it has, by reason of its business and financial experience, such knowledge, sophistication and experience in financial and business matters and in making investment decisions of this type that it is capable of (i) evaluating the merits and risks of an investment in the Securities and making an informed investment decision in connection therewith; (ii) protecting its own interest; and (iii) bearing the economic risk of such investment for an indefinite period of time for Securities which are not transferable or freely tradable. The undersigned hereby agrees to indemnify the Issuer thereof and to hold each of such persons and entities, and the officers, directors and employees thereof harmless against all liability, costs or expenses (including reasonable attorneys’ fees) arising by reason of or in connection with any misrepresentation or any breach of warranties of the undersigned contained in this Agreement, or arising as a result of the sale or distribution of the Securities or the Common Stock issuable upon conversion of the Notes or exercise of the Warrants, by the undersigned in violation of the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any other applicable law, either federal or state. This subscription and the representations and warranties contained herein shall be binding upon the heirs, legal representatives, successors and assigns of the Purchaser
(h) The Purchaser is familiar with the definition of an "accredited investor" as that term is defined in Rule 501(a) of Regulation D of the Securities Act and represents and warrants to the Issuer that it is an accredited investor as so defined. If the Purchaser is not a resident of the United States, the Purchaser is not a “U.S. person[s]” as that term is defined in Rule 902 of Regulation S promulgated under the Securities Act of 1933, as amended.
(i) During the term of this Agreement and the other Transaction Documents, the Purchaser will comply with the provisions of Section 9 of the Exchange Act, and the rules and regulations promulgated thereunder, with respect to transactions involving the Common Stock. During the term of this Agreement and the other Transaction Documents, the Purchaser agrees not to sell the Issuer's Common Stock short or engage in any hedging transactions in the Issuer’s Common Stock, either directly or indirectly, through its affiliates, principals, agents or advisors.
(j) The Purchaser is aware of the restrictions of transferability of both the Notes and the Warrants, and the shares of Common Stock issuable upon conversion of the Notes or exercise of the Warrants, and further understands and acknowledges that any certificates evidencing the Notes, the Warrants or the shares of Common Stock issuable upon conversion of the Notes or exercise of the Warrants will bear the legends in substantially the following form:
(k) The Purchaser understands and acknowledges that following the purchase of the Notes, the Warrants and any shares of Common Stock issuable upon conversion of the Notes or exercise of the Warrants, each may only be disposed of pursuant to either (i) an effective registration statement under the Securities Act or (ii) an exemption from the registration requirements of the Securities Act.
(l) The Purchaser understands and acknowledges that the Issuer has neither filed a registration statement with the SEC or any state authorities nor agreed to do so, nor contemplates doing so in the future for the transactions contemplated by this Agreement or the other Transaction Documents, and in the absence of such a registration statement or exemption, the undersigned may have to hold the Notes, the Warrants and any shares of Common Stock issuable upon conversion of the Notes or exercise of the Warrants, indefinitely and may be unable to liquidate any of them in case of an emergency.
(m) The Purchaser is purchasing the Notes and Warrants, and will acquire any shares of Common Stock issuable upon conversion of the Notes or exercise of the Warrants, for its own account for investment purposes and not with a view towards distribution and agrees to resell or otherwise dispose of any of the Notes or the Warrants, or any shares of Common Stock issuable upon conversion of the Notes or exercise of the Warrants, in accordance with the registration provisions of the Securities Act (or pursuant to an exemption from such registration provisions).
(n) The Purchaser is not and will not be required to be registered as a "dealer" under the Exchange Act, either as a result of its execution and performance of its obligations under this Agreement or otherwise.
(o) The Purchaser understands and acknowledges that proceeds raised in connection with this Agreement will be used by Issuer for general working capital purposes, including without limitation, the payment of salaries and professional fees.
(p) The Purchaser understands that it is liable for its own tax liabilities and has obtained no tax advice from the Issuer in connection with the purchase of the Securities.
(q) The Purchaser will not pay or receive any finder’s fee or commission in respect of the consummation of the transactions contemplated by this Agreement.
Survival of Warranties and Indemnifications All warranties and indemnifications will survive the termination of this Agreement.
