Common use of Indemnification By Insurance Company Clause in Contracts

Indemnification By Insurance Company. Insurance Company agrees to indemnify and hold harmless the Fund, its investment adviser, any sub-investment adviser of a Portfolio, and their affiliates, and each of their directors, trustees, officers, employees, agents and each person, if any, who controls or is associated with any of the foregoing entities or persons within the meaning of the 1933 Act (collectively, the "INDEMNIFIED PARTIES" for purposes of Section 10.1), against any and all losses, claims, damages or liabilities joint or several (including any investigative, legal and other expenses reasonably incurred in connection with, and any amounts paid in settlement of, any action, suit or proceeding or any claim asserted, with the written consent of the Insurance Company, which consent shall not be unreasonably withheld) for which the Indemnified Parties may become subject, under any statute or regulation, or at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) (i) arise out of or are based on any untrue statement or alleged untrue statement of a material fact contained in the registration statement, prospectus, statement of additional information, or sales literature or other promotional material of any Separate Account or relating to the Contracts, or any amendment thereof or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statement or statements therein not misleading, (ii) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in information furnished by Insurance Company for use in the Fund's registration statement, Prospectus, or sales literature or other promotional material or any amendment thereof or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statement or statements not misleading, (iii) arise out of or as a result of conduct, statements or representations (other than statements or representations contained in the Prospectus and sales literature or advertisements of the Fund) of Insurance Company, with respect to the sale and distribution of Contracts for which Portfolio Shares are an underlying investment; (iv) arise out of the wrongful conduct of Insurance Company or persons under its control or direction with respect to the sale or distribution of the Contracts or Portfolio Shares; (v) arise out of Insurance Company's incorrect calculation and/or untimely reporting of net purchase or redemption orders or CID's or the Fund's reliance on any net purchase or redemption order reported by Insurance Company without Contractholder authorization; or (vi) arise out of any breach by Insurance Company of a material term of or representation contained in this Agreement or as a result of any failure by Insurance Company to provide the services and furnish the materials or to make any payments provided for in this Agreement. Insurance Company will reimburse any Indemnified Party in connection with investigating or defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that with respect to clauses (i), (ii) and (iii) above, Insurance Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission made in any document specified in any such clause in conformity with written information furnished to Insurance Company by the Fund specifically for use therein; and PROVIDED, FURTHER, that Insurance Company shall not be liable for special, consequential or incidental damages. This indemnity provision will be in addition to any liability that 18 Insurance Company may otherwise have. No party shall be entitled to indemnification by the Insurance Company if such loss, claim, damage, liability or litigation is due to the willful misfeasance, bad faith, gross negligence, or reckless disregard of duty by the party seeking indemnification. The Insurance Company shall not be liable under this indemnification provision with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified the Insurance Company in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify the Insurance Company of any such claim shall not (i) relieve the Insurance Company from any liability which it may have to the indemnified party against whom such action is brought under this indemnification provision unless the Insurance Company's ability to defend against the claim shall have been materially prejudiced by the indemnified party's failure to give such notice or (ii) in any way release the Insurance Company from any liability which it may have to the indemnified party against whom the action is brought otherwise than on account of this indemnification provision. In case any such action is brought against the Indemnified Parties, the Insurance Company shall be entitled to participate, at its own expense, in the defense of such action. The Insurance Company also shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to the party named in the action. After notice from the Insurance Company to such party of the Insurance Company's election to assume the defense thereof, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it, and the Insurance Company will not be liable to such party under this Agreement for any legal or other expenses subsequently incurred by such party independently in connection with the defense thereof other than reasonable costs of investigation. The Indemnified Parties will promptly notify the Insurance Company of the commencement of any litigation or proceedings against them or any of their officers or directors in connection with the issuance or sale of the Portfolio Shares or the Contracts or the operation of the Fund.

Indemnification By Insurance Company. Insurance Company agrees to indemnify and hold harmless the Fund, its investment adviser, any sub-investment adviser of a Portfolio, and their affiliates, and each of their directors, trustees, officers, employees, agents and each person, if any, who controls or is associated with any of the foregoing entities or persons within the meaning of the 1933 Act (collectively, the "INDEMNIFIED PARTIES" “Indemnified Parties” for purposes of Section 10.1), against any and all losses, claims, damages or liabilities joint or several (including any investigative, legal and other expenses reasonably incurred in connection with, and any amounts paid in settlement of, any action, suit or proceeding or any claim asserted, with the written consent of the Insurance Company, which consent shall not be unreasonably withheld) for which the Indemnified Parties may become subject, under any statute or regulation, or at common law the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) (i) arise out of or are based on any untrue statement or alleged untrue statement of a material fact contained in the registration statement, prospectus, statement of additional information, or sales literature or other promotional material of any Separate Account or relating to the Contracts, or any amendment thereof or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statement or statements therein not misleading, (ii) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in information furnished by Insurance Company for use in the Fund's ’s registration statement, Prospectus, or sales literature or other promotional material or any amendment thereof or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statement or statements not misleading, (iii) arise out of or as a result of conduct, statements or representations (other than statements or representations contained in the Prospectus and sales literature or advertisements of the Fund) of Insurance Company, with respect to the sale and distribution of Contracts for which Portfolio Shares are an underlying investment; (iv) arise out of the wrongful conduct of Insurance Company or persons under its control or direction with respect to the sale or distribution of the Contracts or Portfolio Shares; (v) arise out of Insurance Company's ’s incorrect calculation and/or untimely reporting of net purchase or redemption orders or CID's ’s or the Fund's ’s reliance on any net purchase or redemption order reported by Insurance Company without Contractholder authorization; or (vi) arise out of any breach by Insurance Company of a material term of or representation contained in this Agreement or as a result of any failure by Insurance Company to provide the services and furnish the materials or to make any payments provided for in this Agreement. Insurance Company will reimburse any Indemnified Party in connection with investigating or defending any such loss, claim, damage, liability or action; PROVIDEDprovided, HOWEVERhowever, that with respect to clauses (i), (ii) and (iii) above, Insurance Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission made in any document specified in any such clause in conformity with written information furnished to Insurance Company by the Fund specifically for use therein; and PROVIDEDprovided, FURTHERfurther, that Insurance Company shall not be liable for special, consequential or incidental damages. This indemnity provision agreement will be in addition to any liability that 18 Insurance Company may otherwise have. No party shall be entitled to indemnification by the Insurance Company if such loss, claim, damage, liability or litigation is due to the willful misfeasance, bad faith, gross negligence, or reckless disregard of duty by the party seeking indemnification. The Insurance Company shall not be liable under this indemnification provision with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified the Insurance Company in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify the Insurance Company of any such claim shall not (i) relieve the Insurance Company from any liability which it may have to the indemnified party against whom such action is brought under this indemnification provision unless the Insurance Company's ability to defend against the claim shall have been materially prejudiced by the indemnified party's failure to give such notice or (ii) in any way release the Insurance Company from any liability which it may have to the indemnified party against whom the action is brought otherwise than on account of this indemnification provision. In case any such action is brought against the Indemnified Parties, the Insurance Company shall be entitled to participate, at its own expense, in the defense of such action. The Insurance Company also shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to the party named in the action. After notice from the Insurance Company to such party of the Insurance Company's election to assume the defense thereof, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it, and the Insurance Company will not be liable to such party under this Agreement for any legal or other expenses subsequently incurred by such party independently in connection with the defense thereof other than reasonable costs of investigation. The Indemnified Parties will promptly notify the Insurance Company of the commencement of any litigation or proceedings against them or any of their officers or directors in connection with the issuance or sale of the Portfolio Shares or the Contracts or the operation of the Fund.

Indemnification By Insurance Company. Insurance Company agrees to indemnify and hold harmless the Fund, its investment adviser, any sub-investment adviser of a Portfolio, and their affiliates, and each of their directors, trustees, officers, employees, agents and each person, if any, who controls or is associated with any of the foregoing entities or persons within the meaning of the 1933 Act (collectively, the "INDEMNIFIED PARTIESIndemnified Parties" for purposes of Section 10.19.1), against any and all losses, claims, damages or liabilities joint or several (including any investigative, legal and other expenses reasonably incurred in connection with, and any amounts paid in settlement of, any action, suit or proceeding or any claim asserted, with the written consent of the Insurance Company, which consent shall not be unreasonably withheld) for which the Indemnified Parties may become subject, under any statute or regulation, or at common law the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) (i) arise out of or are based on any untrue statement or alleged untrue statement of a material fact contained in the registration statement, prospectus, statement of additional information, or sales literature or other promotional material of any Separate Account or relating to the Contracts, or any amendment thereof or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statement or statements therein not misleading, (ii) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in information furnished by Insurance Company for use in the Fund's registration statement, Prospectus, or sales literature or other promotional material or any amendment thereof or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statement or statements not misleading, (iii) arise out of or as a result of conduct, statements or representations (other than statements or representations contained in the Prospectus and sales literature or advertisements of the Fund) of Insurance CompanyCompany , with respect to the sale and distribution of Contracts for which Portfolio Shares are an underlying investment; (iv) arise out of the wrongful conduct of Insurance Company or persons under its control or direction with respect to the sale or distribution of the Contracts or Portfolio Shares; (v) arise out of Insurance Company's incorrect calculation and/or untimely reporting of net purchase or redemption orders or CID's or the Fund's reliance on any net purchase or redemption order reported by Insurance Company without Contractholder authorizationorders; or (vi) arise out of any breach by Insurance Company of a material term of or representation contained in this Agreement or as a result of any failure by Insurance Company to provide the services and furnish the materials or to make any payments provided for in this Agreement. Insurance Company will reimburse any Indemnified Party in connection with investigating or defending any such loss, claim, damage, liability or action; PROVIDEDprovided, HOWEVERhowever, that with respect to clauses (i), (ii) and (iii) above, Insurance Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission made in any document specified in any such clause in conformity with written information furnished to Insurance Company by the Fund specifically for use therein; and PROVIDEDprovided, FURTHERfurther, that Insurance Company shall not be liable for special, consequential or incidental damages. This indemnity provision agreement will be in addition to any liability that 18 Insurance Company may otherwise may·otherwise have. No party shall be entitled to indemnification by the Insurance Company if such loss, claim, damage, liability or litigation is due to the willful misfeasance, bad faith, gross negligence, or reckless disregard of duty by the party seeking indemnification. The Insurance Company shall not be liable under this indemnification provision with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified the Insurance Company in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify the Insurance Company of any such claim shall not (i) relieve the Insurance Company from any liability which it may have to the indemnified party against whom such action is brought under this indemnification provision unless the Insurance Company's ability to defend against the claim shall have been materially prejudiced by the indemnified party's failure to give such notice or (ii) in any way release the Insurance Company from any liability which it may have to the indemnified party against whom the action is brought otherwise than on account of this indemnification provision. In case any such action is brought against the Indemnified Parties, the Insurance Company shall be entitled to participate, at its own expense, in the defense of such action. The Insurance Company also shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to the party named in the action. After notice from the Insurance Company to such party of the Insurance Company's election to assume the defense thereof, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it, and the Insurance Company will not be liable to such party under this Agreement for any legal or other expenses subsequently incurred by such party independently in connection with the defense thereof other than reasonable costs of investigation. The Indemnified Parties will promptly notify the Insurance Company of the commencement of any litigation or proceedings against them or any of their officers or directors in connection with the issuance or sale of the Portfolio Shares or the Contracts or the operation of the Fund.

Indemnification By Insurance Company. Insurance Company agrees to indemnify and hold harmless the Fund, its investment adviser, any sub-investment adviser of a Portfolio, and their affiliates, and each of their directors, trustees, officers, employees, agents and each person, if any, who controls or is associated with any of the foregoing entities or persons within the meaning of the 1933 Act (collectively, the "INDEMNIFIED PARTIESIndemnified Parties" for purposes of Section 10.19.1), against any and all losses, claims, damages or liabilities joint or several (including any investigative, legal and other expenses reasonably incurred in connection with, and any amounts paid in settlement of, any action, suit or proceeding or any claim asserted, with the written consent of the Insurance Company, which consent shall not be unreasonably withheld) for which the Indemnified Parties may become subject, under any statute or regulation, or at common law the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) (i) arise out of or are based on any untrue statement or alleged untrue statement of a material fact contained in the registration statement, prospectus, statement of additional information, or sales literature or other promotional material of any Separate Account or relating to the Contracts, or any amendment thereof or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statement or statements therein not misleading, (ii) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in information furnished by Insurance Company for use in the Fund's ’s registration statement, Prospectus, or sales literature or other promotional material or any amendment thereof or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statement or statements not misleading, (iii) arise out of or as a result of conduct, statements or representations (other than statements or representations contained in the Prospectus and sales literature or advertisements of the Fund) of Insurance CompanyCompany , with respect to the sale and distribution of Contracts for which Portfolio Shares are an underlying investment; (iv) arise out of the wrongful conduct of Insurance Company or persons under its control or direction with respect to the sale or distribution of the Contracts or Portfolio Shares; (v) arise out of Insurance Company's incorrect calculation and/or untimely reporting of net purchase or redemption orders or CID's or the Fund's reliance on any net purchase or redemption order reported by Insurance Company without Contractholder authorizationorders; or (vi) arise out of any breach by Insurance Company of a material term of or representation contained in this Agreement or as a result of any failure by Insurance Company to provide the services and furnish the materials or to make any payments provided for in this Agreement. Insurance Company will reimburse any Indemnified Party in connection with investigating or defending any such loss, claim, damage, liability or action; PROVIDEDprovided, HOWEVERhowever, that with respect to clauses (i), (ii) and (iii) above, Insurance Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission made in any document specified in any such clause in conformity with written information furnished to Insurance Company by the Fund specifically for use therein; and PROVIDEDprovided, FURTHERfurther, that Insurance Company shall not be liable for special, consequential or incidental damages. This indemnity provision agreement will be in addition to any liability that 18 Insurance Company may otherwise have. No party shall be entitled to indemnification by the Insurance Company if such loss, claim, damage, liability or litigation is due to the willful misfeasance, bad faith, gross negligence, or reckless disregard of duty by the party seeking indemnification. The Insurance Company shall not be liable under this indemnification provision with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified the Insurance Company in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify the Insurance Company of any such claim shall not (i) relieve the Insurance Company from any liability which it may have to the indemnified party against whom such action is brought under this indemnification provision unless the Insurance Company's ability to defend against the claim shall have been materially prejudiced by the indemnified party's failure to give such notice or (ii) in any way release the Insurance Company from any liability which it may have to the indemnified party against whom the action is brought otherwise than on account of this indemnification provision. In case any such action is brought against the Indemnified Parties, the Insurance Company shall be entitled to participate, at its own expense, in the defense of such action. The Insurance Company also shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to the party named in the action. After notice from the Insurance Company to such party of the Insurance Company's election to assume the defense thereof, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it, and the Insurance Company will not be liable to such party under this Agreement for any legal or other expenses subsequently incurred by such party independently in connection with the defense thereof other than reasonable costs of investigation. The Indemnified Parties will promptly notify the Insurance Company of the commencement of any litigation or proceedings against them or any of their officers or directors in connection with the issuance or sale of the Portfolio Shares or the Contracts or the operation of the Fund.