Common use of Indemnification by Xxxxxxxx Clause in Contracts

Indemnification by Xxxxxxxx. SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER AGREES TO DEFEND, HOLD HARMLESS, AND INDEMNIFY PhoneAmerica ONCE, ITS EMPLOYEES, DIRECTORS, OFFICERS AND AGENTS, FROM AND AGAINST ALL CLAIMS, ACTIONS, DAMAGES, AND/OR LIABILITIES, TOGETHER WITH ANY AND ALL LOSSES, FINES, PENALTIES, COSTS, AND EXPENSES, INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND EXPENSES OR PENALTIES IMPOSED BY GOVERNMENTAL ENTITIES (COLLECTIVELY, THE "LIABILITIES") IN CONNECTION WITH ANY LITIGATION OR OTHER FORM OF ADJUDICATORY PROCEDURE, CLAIM, DEMAND, INVESTIGATION, OR FORMAL OR INFORMAL INQUIRY, OR ANY SETTLEMENT THEREOF, WHICH ARISES DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH THE NONFULFILLMENT OR BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT, AGREEMENT, OR OBLIGATION OF CUSTOMER CONTAINED IN OR CONTEMPLATED BY THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, CUSTOMER’S OBLIGATION TO INDEMNIFY SPECIFICALLY INCLUDES: (I) ANY AND ALL LIABILITIES OF ANY KIND INCURRED BY PHONEAMERICA AS A RESULT OF ANY DISPUTE OR ERROR IN CUSTOMER’S CLASSIFICATION AS AN INFORMATION SERVICES PROVIDER AND/OR CLAIM OF EXEMPTION FROM ACCESS CHARGES ASSESSED ON THE TRAFFIC AND/OR CUSTOMER’S (OR CUSTOMER’S END USERS’) FAILURE TO PROPERLY IDENTIFY THE JURISDICTION OF TRAFFIC CARRIED OVER THE PHONEAMERICA SERVICES OR EXCHANGED WITH PHONEAMERICA ;

Indemnification by Xxxxxxxx. SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER AGREES TO DEFEND, HOLD HARMLESS, AND INDEMNIFY PhoneAmerica MIVOICE ONCE, LLC, ITS EMPLOYEES, DIRECTORS, OFFICERS AND AGENTS, FROM AND AGAINST ALL CLAIMS, ACTIONS, DAMAGES, AND/OR LIABILITIES, TOGETHER WITH ANY AND ALL LOSSES, FINES, PENALTIES, COSTS, AND EXPENSES, INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND EXPENSES OR PENALTIES IMPOSED BY GOVERNMENTAL ENTITIES (COLLECTIVELY, THE "LIABILITIES") IN CONNECTION WITH ANY LITIGATION OR OTHER FORM OF ADJUDICATORY PROCEDURE, CLAIM, DEMAND, INVESTIGATION, OR FORMAL OR INFORMAL INQUIRY, OR ANY SETTLEMENT THEREOF, WHICH ARISES DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH THE NONFULFILLMENT OR BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT, AGREEMENT, OR OBLIGATION OF CUSTOMER CONTAINED IN OR CONTEMPLATED BY THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, CUSTOMER’S OBLIGATION TO INDEMNIFY SPECIFICALLY INCLUDES: (I) ANY AND ALL LIABILITIES OF ANY KIND INCURRED BY PHONEAMERICA MIVOICE ONE, LLC AS A RESULT OF ANY DISPUTE OR ERROR IN CUSTOMER’S CLASSIFICATION AS AN INFORMATION SERVICES PROVIDER AND/OR CLAIM OF EXEMPTION FROM ACCESS CHARGES ASSESSED ON THE TRAFFIC AND/OR CUSTOMER’S (OR CUSTOMER’S END USERS’) FAILURE TO PROPERLY IDENTIFY THE JURISDICTION OF TRAFFIC CARRIED OVER THE PHONEAMERICA MIVOICE ONE, LLC SERVICES OR EXCHANGED WITH PHONEAMERICA ;MIVOICE ONE, LLC ; (II) ANY AND ALL LIABILITIES ARISING FROM USE OF MIVOICE ONE, LLC’S SERVICE BY CUSTOMER OR ITS END USERS; (III) ANY AND ALL LIABILITIES ARISING FROM ANY BREACH OF CUSTOMER’S REPRESENTATIONS AND WARRANTIES HEREUNDER; (IV) ANY AND ALL LIABILITIES ARISING FROM CONTENT; AND (V) ANY AND ALL LIABILITIES OF ANY KIND INCURRED BY MIVOICE ONE, LLC AS A RESULT OF ANY DISPUTE, ERROR OR VIOLATION OF THE FCC’S RULES AND POLICIES REGARDING LNP OR TELEPHONE NUMBERING RESOURCES.

Indemnification by Xxxxxxxx. SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER AGREES TO DEFEND, HOLD HARMLESSBORROWER SHALL INDEMNIFY EACH INDEMNITEE AGAINST, AND INDEMNIFY PhoneAmerica ONCEHOLD EACH INDEMNITEE HARMLESS FROM, ITS EMPLOYEES, DIRECTORS, OFFICERS AND AGENTS, FROM AND AGAINST ALL CLAIMS, ACTIONS, DAMAGES, AND/OR LIABILITIES, TOGETHER WITH ANY AND ALL LOSSES, FINESCLAIMS, DAMAGES, LIABILITIES AND RELATED EXPENSES (INCLUDING THE OUT OF POCKET FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL FOR ANY INDEMNITEE), INCURRED BY ANY INDEMNITEE OR ASSERTED AGAINST ANY INDEMNITEE BY ANY PERSON (INCLUDING THE BORROWER) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF (A) THE EXECUTION OR DELIVERY OF THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, THE PERFORMANCE BY THE PARTIES HERETO OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER OR THEREUNDER OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, (B) ANY LOAN OR THE USE OR PROPOSED USE OF THE PROCEEDS THEREFROM, (C) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY OWNED OR OPERATED BY THE BORROWER OR ANY OF ITS SUBSIDIARIES, OR ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO THE BORROWER OR ANY OF ITS SUBSIDIARIES, OR (D) ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY, WHETHER BROUGHT BY A THIRD PARTY OR BY THE BORROWER, AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO. WITHOUT LIMITING ANY PROVISION OF THIS AGREEMENT OR OF ANY OTHER LOAN DOCUMENT, IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT EACH INDEMNITEE SHALL BE INDEMNIFIED FROM AND HELD HARMLESS AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS, AND EXPENSES, INCLUDING, WITHOUT LIMITATION, EXPENSES (INCLUDING ATTORNEYS’ FEES AND EXPENSES FEES) ARISING OUT OF OR PENALTIES IMPOSED BY GOVERNMENTAL ENTITIES (COLLECTIVELYRESULTING FROM THE SOLE, THE "LIABILITIES") IN CONNECTION WITH ANY LITIGATION CONTRIBUTORY, COMPARATIVE, CONCURRENT OR OTHER FORM ORDINARY NEGLIGENCE OF ADJUDICATORY PROCEDURE, CLAIM, DEMAND, INVESTIGATION, OR FORMAL OR INFORMAL INQUIRY, OR ANY SETTLEMENT THEREOF, WHICH ARISES DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH THE NONFULFILLMENT OR BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT, AGREEMENT, OR OBLIGATION OF CUSTOMER CONTAINED IN OR CONTEMPLATED BY THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, CUSTOMER’S OBLIGATION TO INDEMNIFY SPECIFICALLY INCLUDES: (I) ANY AND ALL LIABILITIES OF ANY KIND INCURRED BY PHONEAMERICA AS A RESULT OF ANY DISPUTE OR ERROR IN CUSTOMER’S CLASSIFICATION AS AN INFORMATION SERVICES PROVIDER AND/OR CLAIM OF EXEMPTION FROM ACCESS CHARGES ASSESSED ON THE TRAFFIC AND/OR CUSTOMER’S SUCH PERSON (OR CUSTOMER’S END USERS’) FAILURE THE REPRESENTATIVES OF SUCH PERSON); PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO PROPERLY IDENTIFY ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF TRAFFIC CARRIED OVER THE PHONEAMERICA SERVICES OR EXCHANGED WITH PHONEAMERICA ;SUCH INDEMNITEE. This Section shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. Any amount to be paid under this Section shall be a demand obligation owing by the Borrower and if not paid within 10 days of demand shall bear interest, to the extent not prohibited by and not in violation of Applicable Law, from the date of expenditure until paid at a rate per annum equal to the Default Rate. The obligations of the Borrower under this Section shall survive the termination of the Loan Documents and payment of the Obligations hereunder.