Common use of By Seller Clause in Contracts

By Seller. Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's fees) ("Indemnified Items") for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.

By Seller. Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's ’s fees) ("“Indemnified Items"”) for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's ’s premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-third party claim covered by Xxxxxx's Seller’s indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx Buyer agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's ’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx Buyer with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.

By Seller. Seller agrees to indemnify, defend and save BuyerXxxxx, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's ’s fees) ("“Indemnified Items"”) for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's ’s premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-third party claim covered by Xxxxxx's ’s indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's ’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.

By Seller. Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees Xxxxx from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's ’s fees) ("Indemnified Items"“Claims”) for (i) personal injury to or death of persons or damage to real property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's ’s premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however. Notwithstanding the foregoing, Seller shall have no liability under this Section to the extent any such Indemnified Items Claims are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents Buyer or representatives or contractors, (ii) by any third party, (iiiii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) Seller’s compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications service, installation or modification of the any Product except by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Claims and Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's ’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; Product or (c) in if neither of the event (a) and (b) are not practicalpreceding is reasonably practicable, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedulepurchase price for the Product. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer. Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, Seller from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) Claims to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.

By Seller. Seller agrees to indemnify, defend and save Buyer, its officerofficers, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's ’s fees) ("“Indemnified Items"”) for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's ’s premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-third party claim covered by Xxxxxx's Seller’s indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx Buyer agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's ’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund refunds to Buyer the amortized amounts paid by Xxxxx Buyer with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.

By Seller. Seller agrees to indemnify, defend and save BuyerPurchaser, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's ’s fees) ("“Indemnified Items"”) for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's Purchaser’s premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of BuyerPurchaser, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's Purchaser’s designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's ’s prior written approval. Buyer Purchaser shall [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. provide Seller prompt written notice of any third-third party claim covered by Xxxxxx's Seller’s indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx Purchaser agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's ’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer Purchaser the right, at no additional expense to BuyerPurchaser, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does docs not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer Purchaser the amortized amounts paid by Xxxxx Purchaser with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ’S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.

By Seller. Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's ’s fees) ("“Indemnified Items"”) for (i) injury to or death of persons or damage to real property to the extent caused by the gross negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's ’s premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-third party claim covered by Xxxxxx's Seller’s indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx Buyer agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's ’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx Buyer with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.

By Seller. Seller agrees to shall indemnify, defend save and save hold harmless Buyer, its officerAffiliates, and their respective directors, officers, shareholders and employees (the "Buyer Indemnitees ") from and against any and all damagesnecessary and required costs, losses, Taxes, liabilities, actionsdamages, causes of actionlawsuits, suitsdeficiencies, claims, demands, losses, costs and expenses (including whether or not arising out of third party claims), including, without limitation reasonable attorney's fees) ("Indemnified Items") for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Sellerlimitation, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to all reasonable amounts paid in investigation, defense or settlement of any of the extent arising from or foregoing herein, (collectively, "Damages"), incurred in connection with with, arising out of, or resulting from (i) subject to Section 10.4(f)(i) and 10.4(f)(iv), any breach of any representation or warranty made by Seller or Partnership in this Agreement or the negligence failure of any representation or willful misconduct warranty made by Seller or Partnership in this Agreement to be true and correct in all material respects at and as of Buyerthe Closing Date, its agents, employees, representatives or contractorsexcept for such changes as are contemplated by this Agreement; (ii) use subject to Section 10.4(f)(i), any breach of a Product in combination with equipment any covenant or software not supplied agreement made by Seller where the Product itself would not be infringingor Partnership in this Agreement; (iii) Seller's compliance with designswaiver of any requirements of the Bulk Sales Act, specifications or instructions supplied to Seller by Buyeras provided in Section 10.5; (iv) use the existence of a Product in an application or environment Environmental Liabilities for which it was not designedFacilities Real Property including, without limitation, liabilities arising from Facilities Real Property repurchased by Seller pursuant to Section 6.4(b)(v); or (v) modifications third party claims against Buyer arising out of any violation of any applicable Environmental Law as a Product by anyone other than result of occupancy of the premises at Ground Leases which Buyer elects to cause Seller without Seller's prior written approvalto reassume in accordance with Section 6.4(b)(vi); (vi) for a period of twelve (12) months from the Closing Date, third party claims against Buyer arising out of any violations of any applicable Environmental Law as a result of occupancy of the premises at Ground Leases which Buyer does not elect to cause Seller to reassume in accordance with Section 6.4(b)(vi); and (vii) any third party claim arising out of Excluded Liabilities.

By Seller. Seller agrees to indemnify, defend and save BuyerXxxxx, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's ’s fees) ("“Indemnified Items"”) for (i) injury to or death of persons or damage to real property to the extent caused by the gross negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's ’s premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-third party claim covered by Xxxxxx's ’s indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's ’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-non- infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.

By Seller. From and after the Closing, Seller agrees to indemnify, defend indemnify and save hold harmless Buyer, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's fees) ("Indemnified Items") for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, Affiliates and their respective officers, directors, shareholders and employees, independent contractors, stockholders, principals, partners, agents or representatives (collectively, "Buyer Indemnified Parties") from and against any and all damagesloss, liabilitiesliability or damage, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements other costs and court costsexpenses (collectively, "Damages"), incurred or sustained by any Buyer Indemnified Party as a result of (a) the breach by Seller of any provision of this Agreement (other than the representations that, pursuant to Section 13.7, do not survive the Closing), and (b) the failure of Seller, the Subsidiary or any of their respective Affiliates to pay or otherwise discharge the Excluded Liabilities, provided that there shall not be any duplicative payments or indemnities by Seller. Notwithstanding anything to the extent arising from or in connection with contrary herein, the rights of Buyer to indemnification under this Section 11 shall be limited as follows: (i) the negligence amount of any Damages incurred or willful misconduct sustained by Buyer shall be reduced by the net amount actually recovered by Buyer or any of its Affiliates from any insurer or other party liable for such Damages (or if such amounts are not actually recovered because of Buyer's failure to pursue such insurance or indemnification proceeds, its agentsthen the amount recoverable), employees, representatives or contractors; and (ii) use the amount of a Product in combination with equipment any Damages incurred or software not supplied sustained by Seller where Buyer shall be reduced to the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications extent such Damages shall have been caused or instructions supplied contributed to Seller by Buyer; (iv) use any action or omission of a Product in an application Buyer or environment for which it was not designed; any of its Affiliates or (v) modifications of a Product by anyone their respective employees other than employees of Buyer who were employees of Seller without Seller's prior written approvalat the time of such action or omission. Indemnity payments hereunder shall be made on an after-tax basis, such that the amount of the indemnity payment, less the tax detriment from receipt of such indemnity payment, plus the tax benefits resulting from sustaining the indemnified loss, liability or damages is equal to the amount of the indemnified Damages.

By Seller. Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees hold harmless Buyer from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's ' s fees) ("Indemnified Items“Claims") for (i) personal injury to or death of persons or damage to real property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement ' s premises; and (ii) third party claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however. Notwithstanding the foregoing, Seller shall have no liability under this Section to the extent any such Indemnified Items Claims are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents Buyer or representatives or contractors, (ii) by any third party, (iiiii) use of a Product in combination with equipment or software not supplied by Seller where w here the Product would not itself be infringing, (iv) Seller’s compliance with Buyer's ' s designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications service, installation or modification of the any Product except by anyone other than a Seller without Seller's prior written approvalauthorized party. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Claims and Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this SectionSection 14. Notwithstanding the above, Seller's ’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own ow n expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; , or (c) in if neither of the event (a) and (b) are not practicalpreceding is reasonably practicable, refund to Buyer refunds the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREINpurchase price for the Product. By Buyer Buyer. Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, Seller from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) Claims to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.;

By Seller. Seller agrees to will indemnify, defend and save Buyer, its officerofficers, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's attorneys’ fees) ("“Indemnified Items"”) asserted by another party against Buyer for (i) bodily injury to or death of persons or damage to tangible property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services Services at Buyer's ’s premises under this Agreement Agreement; and (ii) claims that a Product infringes any valid United States U.S. patent, copyright or trade secret; provided, however, Seller shall have no Seller’s liability under this Section does not extend to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product alone would not itself be infringing, (iv) Seller’s compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed designed, or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide will promptly notify Seller prompt written notice in writing of any third-party claim covered by Xxxxxx's Seller’s indemnification obligations hereunder. Seller shall have the right to may assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx Buyer agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's ’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.expense

By Seller. Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's fees) ("Indemnified Items") for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel save and hold harmless SellerBuyer, --------- its parent, subsidiaries, affiliates and divisionsSubsidiaries, and their respective officers, directors, shareholders and employeesits Representatives, from and against any and all costs, losses (including without limitation diminution in value), Taxes, Liabilities, obligations, damages, liabilitieslawsuits, actions, causes of action, suitsdeficiencies, claims, demands, lossesand expenses (whether or not arising out of third-party claims), including without limitation interest, penalties, costs and expenses of mitigation, losses in connection with any Environmental Law (including without limitation any clean-up or remedial action), lost profits and other losses resulting from any shutdown or curtailment of operations, damages to the environment, reasonable attorneys' fees and disbursements and court costs) to all amounts paid in investigation, defense or settlement of any of the extent foregoing (herein, "Damages"), incurred in connection with, arising out of, resulting from or in connection with incident to (i) any breach of any representation or warranty or the negligence inaccuracy of any representation, made by Seller in or willful misconduct of Buyer, its agents, employees, representatives pursuant to this Agreement without regard to any qualification contained in any representation or contractorswarranty as to materiality or a material adverse effect; (ii) use any breach of a Product in combination with equipment any covenant or software not supplied agreement made by Seller where the Product itself would not be infringingin or pursuant to this Agreement; (iii) Seller's compliance with designs, specifications any Excluded Liability or instructions supplied to Seller by Buyer; (iv) use any Liability imposed upon Buyer by reason of a Product in an application Buyer's status as transferee of the Business or environment for which it was not designedthe Assets; or (v) modifications of a Product by anyone other than Seller without provided, however, -------- ------- that Seller's prior written approvalobligations hereunder for any specific matter giving rise to Damages shall be reduced by the amount of any reserve for such matter which was taken into account in determining the Adjustment Amount pursuant to Section 2.5. All payments to be made pursuant to this Section 10.3(a) shall be promptly paid by Seller.

By Seller. Seller Xxxxxx agrees to indemnify, defend and save BuyerXxxxx, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's ’s fees) ("“Indemnified Items"”) for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's ’s premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-third party claim covered by Xxxxxx's ’s indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's ’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.

By Seller. Subject to Sections 11.01 and 11.03, from and after the Closing, Seller agrees to shall indemnify, reimburse, defend and save hold harmless Buyer, its officer, directors, Affiliates and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses owners (including without limitation reasonable attorney's fees) ("Indemnified Items") for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations members and lenders in this Section. Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (atheir capacities as such) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, agents, successors and assigns (collectively, the “Buyer Indemnitees”) from and against any and all losses, damages, liabilitiesfines, actionspenalties, causes of actionjudgments, suitslawsuits, deficiencies, claims, demandsexpenses, lossesand out-of-pocket costs, (including reasonable fees and disbursements of attorneys and other professionals, including third-party consultants and, to the extent allowable at Law, medical monitoring costs and expenses expenses) of every kind and nature (collectively, “Damages”) incurred in connection with, arising out of, resulting from or incident to (i) any breach of a representation or warranty of Seller made in this Agreement or any Related Agreement, (ii) any breach of any covenant or agreement of Seller in this Agreement or any Related Agreement, (iii) any Excluded Liabilities, and (iv) the conduct of the Business and/or the use of the Purchased Assets prior to the Closing. For purposes of determining whether a representation or warranty of Seller has been breached, and the amount of any Damages attributable to any such breach, such determinations shall be made without giving any effect to any materiality qualifications in the representations and warranties including without limitation reasonable attorneys' fees references to “Material Adverse Effect” or “in all material respects,” and disbursements all such materiality qualifications shall be disregarded. In other words, it is the specific and court costsexpressed intent of the parties that if a representation or warranty of Seller contained in this Agreement that is modified by Material Adverse Effect or words of similar effect would have been untrue or breached by or due to an occurrence, event or circumstance if such representation or warranty were not so qualified, then because all such materiality qualifications are disregarded for purposes of indemnification, the representation or warranty shall be deem to have been breached and Buyer shall be entitled to indemnification pursuant to this Section 11.02(a). For purposes of clarification, the modification of Affiliates and owners contained in the parenthetical on the second and third line of this Section 11.02(a) is intended to provide that the indemnification hereunder are not intended to extend to claims by a member or lender of Buyer for indirect damages resulting from Damages incurred by Buyer due to a misrepresentation or breach by Seller to the extent arising from that such member or lender is affected solely because of their investment in connection with or loan to the Buyer (i) such as diminished value of the negligence member’s investment in Buyer or willful misconduct a higher risk of Buyer, its agents, employees, representatives or contractors; (ii) use collection of a Product in combination with equipment or software not supplied loan for the lender, respectively) because these items are the subject of indemnification of Buyer by Seller where hereunder; provided however, the Product itself would not members or lenders of Buyer shall be infringing; entitled to indemnification hereunder for Damages they directly incur due to a misrepresentation or breach by Seller (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of such as being named in a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approvalThird Party Claim).

By Seller. For the purpose of inducing Buyer to enter into this Agreement, Seller agrees hereby makes the following representations and warranties to indemnify, defend and save Buyer, its officer, directors, and employees from and against any Buyer (each and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs which are true and expenses (including without limitation reasonable attorney's feescorrect as of the Effective Date and shall continue to be true and correct at all times during the term of this Agreement) ("Indemnified Items"A) for that: (i) injury to Seller is the sole owner of the exclusive manufacturing, sales, marketing and distributing rights of the Product, free from any lien, claim or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement encumbrance within North America; and (ii) claims that a the Trade Secrets, the Product infringes Technology, Product use or any valid United States patent, copyright other rights do not unlawfully infringe on the intellectual property rights of any Person or trade secretentity; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, and (iii) use the execution, delivery and performance of a Product in combination with equipment this Agreement does not and will not breach any law or software not supplied by Seller where the Product would not itself be infringingregulation, any judgment or order, or any agreement or arrangement binding on or applicable to Seller; and (iv) compliance the execution of this Agreement does not conflict with Buyer's designs, specifications and will not result in a default under or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense breach of: (a) procures for Buyer the rightSeller Articles of Incorporation, at no additional expense to Buyer, to continue using the Productby-laws or other organizational documents; (b) replaces any agreement, indenture, mortgage, contract or modifies the Product so that it becomes non-infringinginstrument to which Seller is bound by or to which its assets are subject; (c) any order, provided the modification writ, injunction, decree or replacement does not adversely affect the specifications judgment of the Productany Court or governmental agency to which Seller or any of its assets are bound; or (cd) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) law or regulation applicable to the extent arising from Product, the operations of Seller or in connection with (i) the negligence or willful misconduct by which any of Buyer, its agents, employees, representatives or contractorsSellers assets are bound; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or and (v) modifications the Product does not contain any carcinogens, heavy metals, aldehydes or solvents and will meet all state and federal laws relating to VOC emissions; and (vi) based upon collected field data, live testing and third party controlled test data, all of which has been supplied to the Buyer, and Buyers own testing of Product, Seller reasonably believes the Product to be effective by providing improved fire resistance to wood based materials when properly treated with the Product, in accordance with published data by Seller; and (vii) each shipment of the Product to Buyer will conform to the current specifications for the Product on the date of this Agreement; and (viii) Seller is a Product by anyone other than Seller without Seller's prior written approvalcorporation duly incorporated, validly existing and in good standing under the Laws of the State of Nevada and Delaware.

By Seller. Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's feesthe “Seller Indemnifying Party”) ("Indemnified Items") for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel indemnify and hold harmless SellerPurchaser, its parent, subsidiaries, affiliates and divisions, respective Affiliates and their respective members, managers, officers, directors, shareholders trustees, agents and employeesemployees (collectively, “Purchaser Indemnified Parties”), from and against any and all damages, liabilities, actions, causes of action, suits, claims, demandsloss, lossescost, costs liability, damage or expense (including, without limitation, reasonable and expenses (including without limitation reasonable attorneys' documented attorney’s fees and disbursements and court costsexpenses) (“Indemnified Amounts”) that arise out of or relate to the extent arising from (A) any breach by Seller Indemnifying Party of its express representations, warranties, covenants or other responsibilities set forth in connection with this Agreement or (iB) the negligence or any willful misconduct or gross negligence by Seller Indemnifying Party or any of Buyerits officers, its directors, agents, employees, representatives or contractorsassignees with respect to the Purchased Receivables; provided that that the Seller shall not be liable pursuant to this indemnity for any Indemnified Amounts (A) arising due to the deterioration in the credit quality or market value of the Purchased Receivables to the extent that such credit quality or market value was not misrepresented in any material respect by the Seller or any of its Affiliates, (B) arising from the failure of any Account Obligor to pay amounts due and owing under any Receivables unless such failure resulted from the material breach of any covenant of or a misrepresentation by the Seller hereunder or from the Seller’s or its Affiliates’ fraud, gross negligence or willful misconduct, or (C) to the extent that a court having competent jurisdiction shall have determined by a final judgment (not subject to further appeal) that such Indemnified Amount resulted from (i) the fraud, gross negligence or willful misconduct of such Purchaser Indemnified Party or (ii) use a material breach of a Product in combination with equipment or software not supplied any Loan Document by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approvalsuch Purchaser Indemnified Party.

By Seller. Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees hold harmless Buyer from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's fees) ("Indemnified ItemsClaims") for (i) personal injury to or death of persons or damage to real property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement premises; and (ii) third party claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however. Notwithstanding the foregoing, Seller shall have no liability under this Section to the extent any such Indemnified Items Claims are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents Buyer or representatives or contractors, (ii) by any third party, (iiiii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) Seller's compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications service, installation or modification of the any Product except by anyone other than a Seller without Seller's prior written approvalauthorized party. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Claims and Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this SectionSection 14. Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; , or (c) in if neither of the event (a) and (b) are not practicalpreceding is reasonably practicable, refund to Buyer refunds the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREINpurchase price for the Product. By Buyer Buyer. Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, Seller from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) Claims to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (viv) modifications of a Product by anyone other than Seller without Seller's prior written approval.

By Seller. Seller agrees to indemnify, defend shall indemnify and save Buyer, its officer, directors, hold Blue Source harmless from any claims or demands and employees from and against any and all damages, liabilities, actions, causes of action, suits, claimsorders, demandsor any other form of legal proceeding brought by a third party against Blue Source, lossesincluding any government authority or regulator, costs and expenses (including without limitation reasonable attorney's fees) ("Indemnified Items") for relating to: (i) injury to any reckless or death of persons grossly negligent act or damage to property to the extent caused omission and any materially untruthful or reckless representation made by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller Documentation, Registration, Verification, Validation or sale of its obligations Emission Reduction Benefits subject to this Agreement: (ii) the operation of the Project or operation of Seller’s business which is inconsistent with the Applicable Requirements or terms of the Conservation Easement; or (iii) a breach of Seller’s warranties set forth in Section 6 of this SectionAgreement. Notwithstanding the aboveforegoing, Seller's infringement related indemnification obligations with respect to a breach of Section 6.i. of this Agreement, Blue Source shall be extinguished entitled to all ERBs arising from the Project or Net Proceeds arising from such ERBs equal to an amount which would have been created and relieved if Seller, at its discretion to which the Blue Source would have been entitled had the Material Reduction not occurred. Such amount of ERBs or Net Proceeds shall be calculated by multiplying Blue Source’s Share of Net Proceeds by the Anticipated XXX Amount. Seller shall indemnify and at its own expense (a) procures for Buyer the right, at no additional expense Blue Source shall be entitled to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to ERBs generated by the extent Project or Net Proceeds arising from such ERBs until it has recovered any and all ERBs or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied Net Proceeds to Seller by Buyer; (iv) use of a Product in an application or environment for which it was would have been entitled had the Material Reduction not designed; occurred pursuant to this Section 11.b. of this Agreement. In the event that, as a result of the Material reduction, the Project fails to generate sufficient ERBs to cover the amount of ERBs or (v) modifications corresponding Net Proceeds to which Blue Source is entitled under this Section 11.b. of a Product by anyone other than this Agreement, Seller without Seller's prior written approvalshall indemnify Blue Source the Market Damages.

By Seller. Subject to Section 10.2(c), Seller agrees to indemnifyshall defend, defend indemnify and save Buyerhold harmless Buyer and its Representatives (the “Buyer Indemnified Parties”) from, its officeragainst and in respect of any loss, directorscost, and employees from and against any and all damagescharge, liabilitiesexpense, actionsLiability, causes of claim, demand, action, suitssuit, claimsproceeding, demandspayment, lossesjudgment, settlement, assessment, deficiency, tax, interest, penalty or damages (including reasonable fees and disbursements of counsel and accountants and other reasonable costs and expenses incident to any actual or threatened claim, suit, action or proceeding (including without limitation reasonable attorney's feeseach, an “Action”)) ("collectively, the “Damages”), imposed on, sustained, incurred or suffered by any of the Buyer Indemnified Items") for Parties, whether in respect of third-party claims, claims between the parties hereto, or otherwise, directly or indirectly relating to or arising out of (i) injury to any breach or death of persons or damage to property to the extent caused by the negligence or willful misconduct inaccuracy of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises ’s representations and warranties under this Agreement and (ii) claims that a Product infringes or in any valid United States patentRelated Agreements, copyright or trade secret; provided, however, Seller excluding any Fraudulent Breach which shall have no liability under this be governed by Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors10.2(a)(iii), (ii) by any third partybreach of any covenant or agreement of Seller contained in this Agreement or in any Related Agreement that is to be performed prior to the Closing, and/or (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringingany Fraudulent Breach. In addition, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim ordefend, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Sellerthe Buyer Indemnified Parties, its parentwithout limitation as to amount, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employeesduration or any other potential limitation, from and against any Damages imposed on, sustained, incurred or suffered by any of the Buyer Indemnified Parties, whether in respect of third-party claims, claims between the parties hereto, or otherwise, directly or indirectly relating to or arising out of (x) any breach of any covenant or agreement of Seller contained in this Agreement or any Related Agreement that is to be performed as of (e.g., conveyance and delivery of the Assets at the Closing pursuant hereto) or after the Closing and (y) any and all damages(1) Excluded Assets and Excluded Liabilities and (2) Taxes (or the non-payment thereof) of the Seller for all taxable periods ending on or before the Closing Date, liabilitiesTaxes that are the responsibility of the Seller pursuant to Section 3.2, actions, causes and any and all Taxes of action, suits, claims, demands, losses, costs and expenses any Person (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller) imposed on Seller without Seller's prior written approvalas a transferee or successor, by contract or pursuant to any Legal Requirement, which Taxes relate to an event or transaction occurring before the Closing.

By Seller. Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's attorney‟s fees) ("“Indemnified Items"”) for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's Buyer‟s premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-third party claim covered by Xxxxxx's Seller‟s indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx Buyer agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's Seller‟s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx Buyer with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.

By Seller. Seller agrees to indemnify, defend and save BuyerXxxxx, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's ’s fees) ("“Indemnified Items"”) for (i) injury to or death of persons or damage to real property to the extent caused by the gross negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's ’s premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-third party claim covered by Xxxxxx's ’s indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's ’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.

By Seller. Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's ’s fees) ("“Indemnified Items"”) for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's ’s premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) improper storage or handling of the Products or use by unqualified personnel, (iv) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringinginfringing any third party rights, (ivv) Seller’s compliance with Buyer's designs, specifications or instructions, (vvi) use of the Product in an application or environment for which it was not designed or (vivii) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-third party claim covered by Xxxxxx's Seller’s indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx Buyer agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's ’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.or

By Seller. Seller agrees to indemnify, defend and save BuyerXxxxx, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's attorney‟s fees) ("“Indemnified Items"”) for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's Buyer‟s premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-third party claim covered by Xxxxxx's Xxxxxx‟s indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's Seller‟s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.

By Seller. Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's ’s fees) ("“Indemnified Items"”) for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's ’s premises under this Agreement and (ii) claims that a Product infringes any valid United States Australian patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) improper storage or handling of the Products or use by unqualified personnel, (iv) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringinginfringing any third party rights, (ivv) Seller’s compliance with Buyer's designs, specifications or instructions, (vvi) use of the Product in an application or environment for which it was not designed or (vivii) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-third party claim covered by Xxxxxx's Seller’s indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense defence of such claim or, at the option of the Seller, to settle the same. Xxxxx Buyer agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's ’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-non- infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.or

By Seller. Seller agrees to indemnify, defend indemnify and save Buyer, its officer, directorshold harmless the Buyer Indemnitees from and against, and employees from and against to reimburse the Buyer Indemnitees on demand with respect to, any and all damagesloss, liabilitiesdamage, actions, causes of action, suitsliability, claims, demandscost and expense, losses, costs and expenses (including without limitation reasonable attorney's fees) ("Indemnified Items") for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' and accountants' fees and disbursements and court costs) to (collectively, "CLAIMS"), incurred by the extent Buyer Indemnitees by reason of or arising from out of or in connection with (i) the negligence or willful misconduct of Buyerany Excluded Asset, its agents, employees, representatives or contractors; (ii) use the breach of a Product any representation or warranty contained in combination with equipment ARTICLE III hereof or software not supplied by Seller where in any certificate or other document delivered to Buyer pursuant to the Product itself would not be infringing; provisions of this Agreement, (iii) Seller's compliance with designsthe failure of the Seller to perform any act required under this Agreement or the Service Agreement, specifications or instructions supplied to Seller by Buyer; (iv) use a Claim by any third party with respect to any liability, obligation, Contract, other commitment or state of facts which constitutes a Product breach of any representation or warranty contained in an application ARTICLE III hereof or environment for which it was not designed; in any certificate or other document delivered by or on behalf of Shareholder or Seller to the Buyer pursuant to the provisions of this Agreement, (v) modifications any liability or obligation of a Product Seller or any of its Affiliates which is not an Assumed Liability, including, without limitation, all those liabilities and obligations set forth in SECTIONS 2.3(a) through (g) hereof, or (vi) any breach by anyone other than Seller without of the agreements set forth on SCHEDULE 3.2, or the agreements set forth on SCHEDULE 5.5 the consents to which shall not be obtained by Seller on prior to the Closing Date, caused by Seller's prior written approval.execution of and delivery and performance under this Agreement or the Service Agreement . The Buyer agrees to give prompt notice to Seller of any Claim for which Buyer seeks indemnification hereunder, which notice shall include a reasonably detailed description of such Claim. If any Claim is brought against Buyer for which indemnification is sought from Seller

By Seller. Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's fees) ("Indemnified Items") for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-third party claim covered by XxxxxxSeller's indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx Buyer agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx Buyer with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.

By Seller. Seller agrees to shall indemnify, defend and save Buyer, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's fees) ("Indemnified Items") for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless SellerBuyer and Globalstar, its parenttheir respective affiliates, subsidiaries, affiliates successors and divisions, assigns and their respective officers, directors, shareholders employees, agents, owners and employeesmanagers (collectively, “Buyer Indemnified Parties”), from and against any and all damagesclaims, losses, liabilities, actions, causes of action, suits, claims, demands, lossesdamages, costs and expenses (including without limitation interest, penalties, costs of investigation and reasonable attorneys' ’ fees and disbursements and court costs) (but excluding indirect, consequential, incidental, special, exemplary or punitive damages, any claims for lost profits or revenues, or any allocation of internal costs of an indemnified party; in each case to the extent not proximately caused by or directly arising from out of actions of Seller and not owed by a Buyer Indemnified Party to a third party pursuant to a third party claim covered by Section 13(c))) (collectively, “Damages”) based upon, arising out of or otherwise in connection with respect of: (i) any breach by Seller of any of the negligence representations or willful misconduct of Buyer, its agents, employees, representatives warranties made by Seller in this Agreement or contractorsin any certificate or instrument required to be delivered pursuant to this Agreement; (ii) use of a Product in combination with equipment or software not supplied any breach by Seller where of any of the Product itself would not be infringingcovenants or agreements made by Seller in this Agreement; (iii) the matter described in item 2 of Section 6(p) of the Seller Disclosure Schedule (provided that the defense of such matter on behalf of Seller's compliance with designs, specifications or instructions supplied Buyer and Globalstar (as applicable) shall continue to be handled and directed by Seller by Buyerin the same manner currently being defended and directed on behalf of such parties prior to the Closing); (iv) use any warranty obligations for the matter described in item 2 of a Product Section 6(v) of the Seller Disclosure Schedule (the “Axscend Matter”); provided, however, that Seller shall have no obligation to indemnify the Buyer Indemnified Parties pursuant to this Section 13(a)(iv) until the aggregate of all Damages for warranty obligations associated with the Axscend Matter exceeds $20,000 (the “Axscend Indemnity Basket”), and, in an application or environment such event, Seller shall be required to pay only the amount of such Damages for which it was not designedwarranty obligations associated with the Axscend Matter that exceeds the Axscend Indemnity Basket; or and provided further, that the Buyer Indemnified Parties shall first be limited to the recovery for such Damages from the Ascend Cash Escrow Portion (as defined in Section 13(f)(ii)); and (v) modifications the Excluded Liabilities, but not including the Assumed Liabilities or arising out of a Product or otherwise in respect of any breach of representation or warranty which was waived by anyone other than Seller without Seller's prior written approvalthe Buyer Indemnified Parties for purposes of completing the consummation of the Closing in accordance with the rights granted to such parties in Section 9.

By Seller. Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's fees) ("Indemnified Items") for warrants that (i) injury it has the authority to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under enter into this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractorsAgreement, (ii) by it is under no restriction or obligation with anyone that conflicts with any third partyprovision of this Agreement, (iii) Seller's manufacture, manufacturing processes and sale of the Products do not infringe any patent, copyright, trade secret or other proprietary right of any other person or entity in the Products, provided however that this warranty shall not apply to any actual or threatened claim arising out of Seller's compliance with Purchaser's unique specifications (including those different from industry standard specifications for similar products and any manufacturing procedures that are not industry standard and that are set forth in the specifications) for the Products or the distribution, use and/or resale by Purchaser or its customers of a Product the Products in combination with equipment any other components or software products not supplied provided by Seller Seller, where the Product such claim would not itself be infringinghave arisen but for such combination, and (iv) compliance it does not know of any claims or suits threatened or pending against Seller with Buyerregard to the warranty specified in (iii) above. Notwithstanding anything to the contrary set forth above, Seller's designswarranty to Purchaser set forth in Section 10(b)(iii) shall apply if the Product, specifications as a result of its manufacture, manufacturing processes and sale has no substantial noninfringing use. Seller agrees that it will promptly provide written notice to Purchaser upon receipt of any notification from its vendors and licensors, concerning or instructionsin any way referencing (a) any claim of breach or default, (v) use or the cancellation, expiration or termination of any agreements with such vendors and licensors pertinent to the Product in an application or environment for which it was not designed Products or (vib) modifications the threat or commencement of the Product litigation by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with vendor or licensor against Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Products or with Seller's infringement related indemnification execution and performance of this Agreement. The parties' obligations under this Section 9 shall be extinguished and relieved if Sellersurvive the expiration, at its discretion and at its own expense (a) procures termination or cancellation of this Agreement for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approvalreason whatsoever.

By Seller. If Seller agrees breaches any representation or warranty contained in this Agreement or otherwise fails to indemnifyperform its obligations under this Agreement at any time prior to the Closing (a “Pre-Closing Default”), defend Seller shall be in default and, at Purchaser’s option and save Buyer, as its officer, directors, sole and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's fees) ("Indemnified Items") for exclusive remedies (i) injury Purchaser may, terminate this transaction and the Escrow, whereupon Purchaser’s xxxxxxx money deposit, together with interest earnings thereon, shall be returned to or death of persons or damage to property Purchaser and except as expressly set forth otherwise in this Agreement, neither party shall have any further obligations to the extent caused by other, or (ii) Purchaser may waive such breach and nonetheless proceed to purchase the negligence Membership Interests at the Closing without an adjustment to the Purchase Price, or willful misconduct (iii) Purchaser shall be entitled to commence an action to recover liquidated damages in the amount of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00). In addition, in the event Purchaser has waived all of the contingencies set forth in this Agreement and tenders performance of its obligations under this Agreement at the Closing and Seller nonetheless refuses to close escrow or otherwise perform its obligations under this Agreement, or in the event a breach of any representation or warranty contained in this Agreement is a result of the intentional acts of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section addition to the extent any such Indemnified Items are caused by either remedies described in clauses (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors), (ii) by any third party, and (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's infringement related indemnification obligations Purchaser shall be extinguished entitled to commence an action to recover liquidated damages in the amount of Two Million Five Hundred Thousand and relieved if SellerNo/l00 Dollars ($2,500,000.00). For the purposes of this Section 7.7, at its discretion Seller and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so Purchaser acknowledge that it becomes non-infringingis impractical and extremely difficult to fix, provided prior to the modification or replacement does not adversely affect execution of this Agreement, the specifications of the Product; or (c) actual damages that Purchaser would incur in the event (a) of a breach of any warranty or representation contained in this Agreement and/or the refusal by Seller to close escrow. Therefore, Seller and (b) Purchaser acknowledge that the amounts set forth in this Section 7.7 as liquidated damages are reasonable estimates of Purchaser’s probable damages for the breaches or defaults described in this Section 7.7 and are not practicala penalty. Provided that Seller pays to Purchaser the liquidated damages as specified in this Section 7.7, refund Purchaser shall have no right to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all seek or obtain actual damages, liabilitieslost profits or consequential damages. Purchaser and Seller acknowledge and agree that a breach or default by Purchaser or Seller under this transaction shall constitute a breach or default under the Phoenix Utility Transaction. In addition, actionsthe amount of liquidated damages set forth in this Section 7.7 are not intended to be cumulative with the amount of liquidated damages set forth in the Agreement of even date for the Phoenix Utility Transaction, causes but rather are intended to be the total amount of action, suits, claims, demands, losses, costs liquidated damages available to Purchaser under this transaction and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to under the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approvalPhoenix Utility Transaction.

By Seller. Seller agrees to indemnifyshall defend, defend indemnify and save hold harmless Buyer, its officer, directors, Buyer Sub 1 and employees Newco from and against any and all losses, damages, liabilities, actions, causes of action, suitslawsuits, claims, demands, losses, costs demands and expenses (including without limitation limitation, reasonable attorney's feesattorneys' fees incurred in the investigation, defense or settlement of any of the foregoing and court costs and other reasonable costs and expenses of litigation) (herein, "Indemnified ItemsDamages") for resulting from (i) injury any breach of any representation or warranty made by Seller in or pursuant to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement and Agreement; (ii) claims that a Product infringes any valid United States patent, copyright breach of any covenant or trade secretagreement made by Seller in this Agreement; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use any lawsuit, claim, proceeding or other Action that has been brought against Seller prior to the Closing existing at or prior to the Closing or any lawsuit, claim, proceeding or other Action involving an injury or damage (or an allegation of a Product in combination with equipment an injury or software not supplied damage) to individual persons or to the property of others brought against Buyer subsequent to the Closing caused by Seller where events, acts or omissions relating to the Product would not itself be infringingContributed Assets, the Excluded Assets or the Business occurring prior to the Closing, (iv) compliance with Buyer's designsany income Tax arising out of or resulting from the contribution to Newco of the Contributed Assets, specifications the assumption by Newco of the Assumed Liabilities or instructionsthe transfer to Buyer Sub 1 of the Seller Common Units pursuant to this Agreement, or arising out of or resulting from the operation of the Business prior to the Closing; (v) use of any failure to comply with the Product Bulk Sales Act or similar statute in an application or environment for which it was not designed or any applicable jurisdiction; (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Seller shall have the right product liability or product defect claims relating to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance products sold by Seller of its obligations and delivered prior to the Closing; and (vii) claims arising under or relating to the Paper Contract (whether in this Section. Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces contract or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Producttort); or (cviii) in Seller's failure to provide to its employees any notice or communication required by the event (aWARN Act or Seller's failure to provide such notice or communication at least sixty days prior to the Closing. Any claim for indemnification under this Section 10.4(a) and (b) are not practicalshall be brought no later than two years following the Closing, refund to Buyer except that the amortized amounts paid by Xxxxx with respect thereto, limitation for a claim based on a breach of the representations and warranties contained in Section 4.20 and the representations and warranties as to title contained in Sections 4.4, 4.5, 4.21, 4.23 and 4.24 shall be five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approvalyears.

By Seller. Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees Xxxxx from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's ’s fees) ("Indemnified Items"“Claims”) for (i) personal injury to or death of persons or damage to real property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's ’s premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however. Notwithstanding the foregoing, Seller shall have no liability under this Section to the extent any such Indemnified Items Claims are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents Buyer or representatives or contractors, (ii) by any third party, (iiiii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) Seller’s compliance with Buyer's ’s designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications service, installation or modification of the any Product except by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Claims and Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's ’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely ad- versely affect the specifications of the Product; Product or (c) in if neither of the event (a) and (b) are not practicalpreceding is reasonably practicable, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedulepurchase price for the Product. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ’S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer. Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, Seller from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) Claims to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's ’s compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.

By Seller. Seller agrees to will indemnify, defend and save Buyer, its officerofficers, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's attorneys’ fees) ("“Indemnified Items"”) asserted by another party against Buyer for (i) bodily injury to or death of persons or damage to tangible property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services Services at Buyer's ’s premises under this Agreement Agreement; and (ii) claims that a Product infringes any valid United States U.S. patent, copyright or trade secret; provided, however, Seller shall have no Seller’s liability under this Section does not extend to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product alone would not itself be infringing, (iv) Seller’s compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed designed, or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Xxxxx will promptly notify Seller prompt written notice in writing of any third-party claim covered by Xxxxxx's ’s indemnification obligations hereunder. Seller shall have the right to may assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's ’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.expense

By Seller. Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's ’s fees) ("“Indemnified Items"”) for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's ’s premises under this Agreement and (ii) claims that a Product infringes any valid United States New Zealand patent, copyright or trade secretsecret or other intellectual property right(s); provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) improper storage or handling of the Products or use by unqualified personnel, (iv) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringinginfringing any third party rights, (ivv) Seller’s compliance with Buyer's designs, specifications or instructions, (vvi) use of the Product in an application or environment for which it was not designed or (vivii) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-third party claim covered by Xxxxxx's Seller’s indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense defence of such claim or, at the option of the Seller, to settle the same. Xxxxx Buyer agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's ’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.and

By Seller. Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees hold harmless Buyer from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's ’s fees) ("Indemnified Items"“Claims”) for (i) personal injury to or death of persons or damage to real property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement ’s premises; and (ii) third party claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however. Notwithstanding the foregoing, Seller shall have no liability under this Section to the extent any such Indemnified Items Claims are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents Buyer or representatives or contractors, (ii) by any third party, (iiiii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) Seller’s compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications service, installation or modification of the any Product except by anyone other than a Seller without Seller's prior written approvalauthorized party. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Claims and Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this SectionSection 14. Notwithstanding the above, Seller's ’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; , or (c) in if neither of the event (a) and (b) are not practicalpreceding is reasonably practicable, refund to Buyer refunds the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREINpurchase price for the Product. By Buyer Buyer. Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, Seller from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) Claims to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (viv) modifications of a Product by anyone other than Seller without Seller's prior written approval.

By Seller. Seller Xxxxxx agrees to indemnify, defend and save BuyerXxxxx, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's fees) ("Indemnified Items") for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-third party claim covered by Xxxxxx's indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.

By Seller. Subject to the limitation of liability specified in Section 10, Seller agrees to indemnify, defend and save Buyer, its officerofficers, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's fees) ("Indemnified Items") for (ia) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement and (iib) claims that a Product manufactured by Seller infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items claims are caused caused, in whole or in part, by either (i) the negligence or willful misconduct of Buyer, its employees, agents or agents, representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-party claim covered by XxxxxxSeller's indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx Buyer agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.or

By Seller. Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees Xxxxx from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's ’s fees) ("Indemnified Items"“Claims”) for (i) personal injury to or death of persons or damage to real property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's ’s premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however. Notwithstanding the foregoing, Seller shall have no liability under this Section to the extent any such Indemnified Items Claims are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents Buyer or representatives or contractors, (ii) by any third party, (iiiii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) Seller’s compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications service, installation or modification of the any Product except by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Claims and Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's ’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; Product or (c) in if neither of the event (a) and (b) are not practicalpreceding is reasonably practicable, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedulepurchase price for the Product. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.LIABILITY

By Seller. From and after the Effective Time and subject to the --------- limitations set forth below, Seller agrees to shall indemnify, defend save and save Buyer, hold harmless Buyer and its officer, directorsAffiliates, and employees their respective Representatives, from and against and in any respect of any and all damagesDamages caused by, liabilitiesarising out of, actionsasserted against, causes resulting from or incurred or suffered by Buyer or any of actionits Affiliates or Representatives in connection with, suitsdirectly or indirectly, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's fees) ("Indemnified Items") for (i) injury any misrepresentation or breach of any representation or warranty by Seller in or pursuant to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement and (ii) claims that or any Ancillary Agreement to which Seller is a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractorsparty, (ii) the non-fulfillment of any covenant or agreement made by Seller in or pursuant to this Agreement or any third Ancillary Agreement to which Seller is a party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringingExcluded Liabilities, (iv) compliance with Buyer's designs, specifications or instructionsthe Excluded Assets, (v) use any allegation or claim relating to the use, sale, licensing or development of the Product Intellectual Property or Finished Goods (except for any such allegation or claim resulting from any changes, modifications and/or improvements thereto made other than by or for Seller), whether such allegation or claim relates to a Finished Good or [*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED TO THE OMITTED PORTIONS. Intellectual Property on a stand-alone basis or in combination with other components or intellectual property, including, but not limited to, claims of breach or threat of breach of a third party's trade secrets or violation of a third party's copyrights, or claims based on a failure by Seller to disclose an application intellectual property risk or environment for which it was not designed or other exception to Seller's representations and warranties known to Seller, (vi) modifications claims of fraud, or (vii) any liability arising out of the Product by anyone other than Seller without pending or threatened claims set forth in Section 4.5 of Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third-party claim covered by Xxxxxx's indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Xxxxx with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approvalDisclosure Schedule.