Common use of By Seller Clause in Contracts

By Seller. Seller agrees to indemnify, defend and save Xxxxx, 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 Seller. Seller agrees to indemnify, defend and save XxxxxBuyer, 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 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 Seller. Seller agrees to indemnify, defend and save XxxxxPurchaser, 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 BuyerPurchaser’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 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 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 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 Seller. Seller agrees to indemnify, defend and save XxxxxBuyer, 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 XxxxxBuyer, 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 (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 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 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 Seller. Seller agrees to indemnify, defend and save Xxxxx, 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 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 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 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 and hold harmless Seller from and against any and all Claims to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer; (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.

By Seller. Seller agrees to indemnify, defend and save Xxxxx, 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 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 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 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 shall indemnify, defend and hold harmless Seller from and against any and all Claims to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer; (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.

By Seller. Subject to the limitation of liability specified in Section 10, Seller agrees to indemnify, defend and save XxxxxBuyer, 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 (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 '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 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.or

By Seller. Seller agrees to indemnify, defend and save Xxxxx, 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 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 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 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.LIABILITY

By Seller. Seller agrees to indemnify, defend and save Xxxxx, 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) if neither of the preceding is reasonably practicable, refunds the purchase price for the Product. By Buyer. Buyer shall indemnify, defend and hold harmless Seller from and against any and all Claims to the extent arising from or in connection with (i) the event negligence or willful misconduct of Buyer; (aii) and use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (biii) are use of a Product in an application or environment for which it was not practical, refund to Buyer the amortized amounts paid designed; or (iv) modifications of a Product 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 HEREINanyone other than Seller.

By Seller. Subject to Section 10.2(c), Seller agrees shall defend, indemnify and hold harmless Buyer and its Representatives (the “Buyer Indemnified Parties”) from, against and in respect of any loss, cost, charge, expense, Liability, claim, demand, action, suit, proceeding, payment, judgment, 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 (each, an “Action”)) (collectively, the “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 (i) any breach or inaccuracy of Seller’s representations and warranties under this Agreement or in any Related Agreements, excluding any Fraudulent Breach which shall be governed by Section 10.2(a)(iii), (ii) any breach 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) any Fraudulent Breach. In addition, Seller shall defend, indemnify, defend and save Xxxxxhold harmless the Buyer Indemnified Parties, its officerwithout limitation as to amount, directorsduration or any other potential limitation, and employees 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, liabilities, actions, causes of action, suits, claims, demands, losses, costs (1) Excluded Assets 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 Excluded Liabilities and (ii2) claims that a Product infringes any valid United States patent, copyright Taxes (or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (inon-payment thereof) 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 Seller for all taxable periods ending on or environment for which it was not designed or (vi) modifications before the Closing Date, Taxes that are the responsibility of the Product by anyone Seller pursuant to Section 3.2, and any and all Taxes of any Person (other than Seller) imposed on Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of as a transferee or successor, by contract or pursuant to any third party claim covered by Xxxxxx’s indemnification obligations hereunder. Seller shall have Legal Requirement, which Taxes relate to an event or transaction occurring before 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 HEREINClosing.

By Seller. Seller agrees to shall indemnify, defend and save Xxxxxhold harmless Buyer and Globalstar, its officertheir respective affiliates, successors and assigns and their respective officers, directors, employees, agents, owners and employees managers (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 attorney’s feesattorneys’ fees (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 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, “Indemnified ItemsDamages”) for based upon, arising out of or otherwise in respect of: (i) injury any breach by Seller of any of the representations or warranties made by Seller in this Agreement or in any certificate or instrument required to be delivered pursuant to this Agreement; (ii) any breach by Seller of any of the covenants or death agreements made by Seller in this Agreement; (iii) the matter described in item 2 of persons or damage to property to Section 6(p) of the extent caused by Seller Disclosure Schedule (provided that the negligence or willful misconduct defense of such matter on behalf of Seller, its employees, agents or representatives or contractors Buyer and Globalstar (as applicable) shall continue to be handled and directed by Seller in connection with the performance same manner currently being defended and directed on behalf of services at Buyer’s premises under this Agreement and such parties prior to the Closing); (iiiv) claims that a Product infringes any valid United States patent, copyright or trade secretwarranty obligations for the matter described in item 2 of Section 6(v) of the Seller Disclosure Schedule (the “Axscend Matter”); provided, however, that Seller shall have no liability under 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 such event, Seller shall be required to pay only the amount of such Damages for warranty obligations associated with the Axscend Matter that exceeds the Axscend Indemnity Basket; and provided further, that the Buyer Indemnified Parties shall first be limited to the extent any recovery for such Indemnified Items are caused by either Damages from the Ascend Cash Escrow Portion (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 as defined 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, Section 13(f)(ii)); and (v) use the Excluded Liabilities, but not including the Assumed Liabilities or arising out of or otherwise in respect of any breach of representation or warranty which was waived by the Buyer Indemnified Parties for purposes of completing the consummation of the Product Closing 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 accordance with the performance by Seller of its obligations rights granted to such parties 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 HEREINSection 9.

By Seller. Seller agrees to indemnify, defend and save Xxxxx, 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 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 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 Xxxxx, 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 any law or regulation applicable to the event (a) Product, the operations of Seller or by which any of Sellers assets are bound; and (bv) are the Product does not practicalcontain any carcinogens, refund 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 amortized amounts paid by Xxxxx with respect theretocurrent specifications for the Product on the date of this Agreement; and (viii) Seller is a corporation duly incorporated, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREINvalidly existing and in good standing under the Laws of the State of Nevada and Delaware.

By Seller. Seller agrees to indemnify, defend and save Xxxxx, 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 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 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 Seller. Seller agrees to indemnify, defend and save Xxxxx, 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 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 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-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 Seller. Seller agrees to indemnify, defend and save XxxxxBuyer, 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 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 party claim covered by XxxxxxSeller’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 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.and

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 Xxxxx, 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 seek or obtain actual damages, lost 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 amortized amounts paid by Xxxxx Phoenix Utility Transaction. In addition, the amount of liquidated damages set forth in this Section 7.7 are not intended to be cumulative with respect theretothe amount of liquidated damages set forth in the Agreement of even date for the Phoenix Utility Transaction, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREINbut rather are intended to be the total amount of liquidated damages available to Purchaser under this transaction and under the Phoenix Utility Transaction.

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 Xxxxx, 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 HEREINDisclosure Schedule.

By Seller. Seller agrees to indemnify, defend and save Xxxxx, 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) if neither of the preceding is reasonably practicable, refunds the purchase price for the Product. By Buyer. Buyer shall indemnify, defend and hold harmless Seller from and against any and all Claims to the extent arising from or in connection with (i) the event negligence or willful misconduct of Buyer; (aii) and use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (biii) are use of a Product in an application or environment for which it was not practical, refund to Buyer the amortized amounts paid designed; or (iv) modifications of a Product 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 HEREINanyone other than Seller.

By Seller. Seller agrees to indemnifyshall defend, defend indemnify and save Xxxxxhold 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) (“Indemnified Items”herein, "Damages") 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 HEREINyears.

By Seller. Seller Xxxxxx agrees to indemnify, defend and save Xxxxx, 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 Seller. Seller agrees to indemnify, defend and save Xxxxx, 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 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) if neither of the preceding is reasonably practicable, refunds the purchase price for the Product. By Buyer. Buyer shall indemnify, defend and hold harmless Seller from and against any and all Claims to the extent arising from or in connection with (i) 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.negligence or willful misconduct of Buyer;

By Seller. From and after the Closing, Seller agrees to indemnify, defend indemnify and save Xxxxxhold harmless Buyer, its officerAffiliates and their respective officers, directors, and employees employees, independent contractors, stockholders, principals, partners, agents or representatives (collectively, "Buyer Indemnified Parties") from and against any loss, liability or damage, including reasonable attorneys' fees and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, other costs and expenses (including without limitation reasonable attorney’s feescollectively, "Damages"), incurred or sustained by any Buyer Indemnified Party as a result of (a) the breach by Seller of any provision of this Agreement (“Indemnified Items”other than the representations that, pursuant to Section 13.7, do not survive the Closing), and (b) for 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 contrary herein, the rights of Buyer to indemnification under this Section 11 shall be limited as follows: (i) injury to the amount of any Damages incurred or death of persons or damage to property to the extent caused sustained by Buyer shall be reduced by the negligence net amount actually recovered by Buyer or willful misconduct any of Sellerits 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 employeesthen the amount recoverable), 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 the amount of any valid United States patent, copyright Damages incurred or trade secret; provided, however, Seller sustained by Buyer shall have no liability under this Section be reduced to the extent any such Indemnified Items are Damages shall have been caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) contributed to by any third partyaction or omission of Buyer or any of its Affiliates or their respective employees other than employees of Buyer who were employees of Seller at the time of such action or omission. Indemnity payments hereunder shall be made on an after-tax basis, (iii) use of a Product in combination with equipment or software not supplied by Seller where such that the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use amount of the Product in an application indemnity payment, less the tax detriment from receipt of such indemnity payment, plus the tax benefits resulting from sustaining the indemnified loss, liability or environment for which it was not designed or (vi) modifications damages is equal to the amount 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 HEREINindemnified Damages.

By Seller. Seller agrees to indemnify, defend and save XxxxxBuyer, 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 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 Seller. Seller agrees to will indemnify, defend and save XxxxxBuyer, 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 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 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 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.expense

By Seller. Seller agrees to indemnify, defend and save Xxxxx, 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 Products or with Seller's execution and performance by Seller of its this Agreement. The parties' obligations in under this Section. Notwithstanding Section 9 shall survive the aboveexpiration, Seller’s infringement related indemnification obligations shall be extinguished and relieved if Seller, 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 HEREINany reason whatsoever.

By Seller. Seller agrees to indemnify, defend and save XxxxxBuyer, 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) 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 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.or

By Seller. Seller agrees to indemnify, defend and save XxxxxBuyer, 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 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 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 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 Seller. Subject to Sections 11.01 and 11.03, from and after the Closing, Seller agrees to shall indemnify, reimburse, defend and save Xxxxxhold harmless Buyer, its officerAffiliates and owners (other than any of its members and lenders in their capacities as such) and their respective officers, directors, employees, agents, successors and employees 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 (including without limitation reasonable attorney’s fees) (collectively, “Indemnified ItemsDamages”) for incurred in connection with, arising out of, resulting from or incident to (i) injury to any breach of a representation or death warranty 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 Seller made in connection with the performance of services at Buyer’s premises under this Agreement and (ii) claims that a Product infringes or 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 contractorsRelated Agreement, (ii) by any third partybreach of any covenant or agreement of Seller in this Agreement or any Related Agreement, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringingany Excluded Liabilities, and (iv) compliance with Buyer's designs, specifications or instructions, (v) the conduct of the Business and/or the use of the Product 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 an application the representations and warranties including without limitation references to “Material Adverse Effect” or environment for which “in all material respects,” and all such materiality qualifications shall be disregarded. In other words, it was not designed or (vi) modifications is the specific and expressed intent of the Product parties that if a representation or warranty of Seller contained in this Agreement that is modified by anyone other than Seller without Seller's prior written approval. 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 prompt written notice to the extent that such member or lender is affected solely because of any third party claim covered by Xxxxxx’s indemnification obligations hereunder. Seller shall have their investment in or loan to the right to assume exclusive control Buyer (such as diminished value of the defense member’s investment in Buyer or a higher risk of such claim orcollection of a loan for the lender, at respectively) because these items are the option subject of the Seller, to settle the same. Xxxxx agrees to cooperate reasonably with Seller in connection with the performance indemnification of Buyer by Seller hereunder; provided however, the members or lenders of its obligations in this Section. Notwithstanding the above, Seller’s infringement related indemnification obligations Buyer shall be extinguished and relieved if Seller, at its discretion and at its own expense entitled to indemnification hereunder for Damages they directly incur due to a misrepresentation or breach by Seller (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) such as being named 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 HEREINThird Party Claim).

By Seller. Seller agrees to shall indemnify, defend save and save Xxxxxhold 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 limitation, reasonable attorney’s fees) attorneys' fees and all reasonable amounts paid in investigation, defense or settlement of any of the foregoing herein, (“Indemnified Items”) for collectively, "Damages"), incurred in connection with, arising out of, or resulting from (i) injury subject to Section 10.4(f)(i) and 10.4(f)(iv), any breach of any representation or death of persons warranty made by Seller or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors Partnership in connection with the performance of services at Buyer’s premises under this Agreement or the failure of any representation or warranty made by Seller or Partnership in this Agreement to be true and correct in all material respects at and as of the Closing Date, except for such changes as are contemplated by this Agreement; (ii) claims that a Product infringes subject to Section 10.4(f)(i), any valid United States patent, copyright breach of any covenant or trade secretagreement made by Seller or Partnership 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 waiver of a Product any requirements of the Bulk Sales Act, as provided in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, Section 10.5; (iv) compliance with Buyer's designsthe existence of Environmental Liabilities for Facilities Real Property including, specifications or instructionswithout limitation, liabilities arising from Facilities Real Property repurchased by Seller pursuant to Section 6.4(b)(v); (v) use third party claims against Buyer arising out of any violation of any applicable Environmental Law as a result of occupancy of the Product premises at Ground Leases which Buyer elects to cause Seller to reassume in an application or environment for which it was not designed or accordance with Section 6.4(b)(vi); (vi) modifications 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 Product by anyone other than premises at Ground Leases which Buyer does not elect to cause Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of to reassume in accordance with Section 6.4(b)(vi); and (vii) any third party claim covered by Xxxxxx’s indemnification obligations hereunder. Seller shall have the right to assume exclusive control arising out 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 HEREINExcluded Liabilities.

By Seller. Seller agrees to indemnify, defend shall indemnify and save Xxxxx, 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 Sellerto 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 Blue Source shall be entitled to any and all ERBs generated by the Project or Net Proceeds arising from such ERBs until it has recovered any and all ERBs or Net Proceeds to which it would have been entitled had the Material Reduction not occurred pursuant to this Section 11.b. of this Agreement. In the event that, 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 as a result of the Product; Material reduction, the Project fails to generate sufficient ERBs to cover the amount of ERBs or (c) in corresponding Net Proceeds to which Blue Source is entitled under this Section 11.b. of this Agreement, Seller shall indemnify Blue Source 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 HEREINMarket Damages.

By Seller. Seller agrees to indemnify, defend and save XxxxxBuyer, 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 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 party claim covered by XxxxxxSeller’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 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.or

By Seller. Seller Xxxxxx agrees to indemnify, defend and save Xxxxx, 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 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 will indemnify, defend and save XxxxxBuyer, 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 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 XxxxxxSeller’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 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.expense

By Seller. Seller agrees to indemnify, defend (the “Seller Indemnifying Party”) shall indemnify and save Xxxxxhold harmless Purchaser, its officerrespective Affiliates and their respective members, managers, officers, directors, trustees, agents and employees (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 documented attorney’s feesfees and expenses) (“Indemnified ItemsAmounts”) that arise out of or relate to (A) any breach by Seller Indemnifying Party of its express representations, warranties, covenants or other responsibilities set forth in this Agreement or (B) any willful misconduct or gross negligence by Seller Indemnifying Party or any of its officers, directors, agents, employees, representatives or assignees 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) injury to or death of persons or damage to property to the extent caused by the fraud, gross negligence or willful misconduct of Seller, its employees, agents such Purchaser Indemnified Party 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 material breach of any third party claim covered Loan Document 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 HEREINPurchaser Indemnified Party.

By Seller. Seller agrees to shall indemnify, defend save and save Xxxxxhold harmless Buyer, --------- its officer, directorsaffiliates and Subsidiaries, and employees its 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 attorney’s fees) attorneys' fees and all amounts paid in investigation, defense or settlement of any of the foregoing (“Indemnified Items”) for herein, "Damages"), incurred in connection with, arising out of, resulting from or incident to (i) injury any breach of any representation or warranty or the inaccuracy of any representation, 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 without regard to any qualification contained in any representation or warranty as to materiality or a material adverse effect; (ii) claims that a Product infringes any valid United States patent, copyright breach of any covenant or trade secretagreement made by Seller in or pursuant to this Agreement; (iii) any Excluded Liability or (iv) any Liability imposed upon Buyer by reason of Buyer's status as transferee of the Business or the Assets; provided, however, Seller -------- ------- that Seller's obligations hereunder for any specific matter giving rise to Damages shall have no liability under 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 to the extent any such Indemnified Items are caused by either (i10.3(a) 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 promptly 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 HEREINSeller.

By Seller. Seller agrees to indemnify, defend and save XxxxxBuyer, 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 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 Seller. Seller agrees to indemnify, defend indemnify and save Xxxxx, 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, lossesincluding reasonable attorneys' and accountants' fees (collectively, costs and expenses (including without limitation reasonable attorney’s fees) (“Indemnified Items”) for "CLAIMS"), incurred by the Buyer Indemnitees by reason of or arising out of or in connection with (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 contractorsExcluded Asset, (ii) by the breach of any third partyrepresentation or warranty contained in ARTICLE III hereof or in any certificate or other document delivered to Buyer pursuant to the provisions of this Agreement, (iii) use the failure of a Product in combination with equipment the Seller to perform any act required under this Agreement or software not supplied by Seller where the Product would not itself be infringingService Agreement, (iv) compliance a Claim by any third party with Buyer's designsrespect to any liability, specifications obligation, Contract, other commitment or instructionsstate of facts which constitutes a breach of any representation or warranty contained in ARTICLE III hereof or 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) use any liability or obligation of the Product Seller or any of its Affiliates which is not an Assumed Liability, including, without limitation, all those liabilities and obligations set forth in an application or environment for which it was not designed SECTIONS 2.3(a) through (g) hereof, 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 breach by Seller of its obligations in 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 execution of and delivery and performance under this SectionAgreement or the Service Agreement . Notwithstanding the aboveThe 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’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.