Common use of Indemnification and Liability Clause in Contracts

Indemnification and Liability. The Subservicer shall be liable in accordance herewith as set forth in Section 7 herein only to the extent of the obligations specifically undertaken by the Subservicer under this Agreement. For purposes of this Section, in the event of the termination of the rights and obligations of the Subservicer as Subservicer pursuant to Section 16, or a resignation by such Subservicer pursuant to this Agreement, such Subservicer shall be deemed to be the Subservicer pending appointment of a successor subservicer pursuant to Section 18. Liability of the Subservicer under this Section shall survive the resignation or removal of the Subservicer or the Servicer or the termination of this Agreement. The Subservicer shall not be under any liability to the Servicer, the Issuer, the Noteholders, the Administrator, the Owner Trustee, the Indenture Administrator, the Indenture Trustee or the Eligible Lender Trustee except as provided under this Agreement, for any action taken or for refraining from the taking of any action pursuant to this Agreement, for errors in judgment, for any incorrect or incomplete information provided by schools, Borrowers, Guarantors and the Department, for the failure of any party to this Servicing Agreement or any other Basic Document to comply with its respective obligations hereunder or under any other Basic Document or for any losses attributable to the insolvency of any Guarantor. The Subservicer may rely in good faith on any document of any kind prima facie properly executed and submitted by any person respecting any matters arising under this Agreement. Except as provided in this Agreement, the Subservicer shall not be under any obligation to appear in, prosecute or defend any legal action where it is not named as a party; provided, however, that the Subservicer may undertake any reasonable action that it may deem necessary or desirable in respect of this Agreement and the other Basic Documents and the rights and duties of the parties to this Agreement and the other Basic Documents and the interests of the Noteholders. To the extent that the Subservicer is required to appear in or is made a defendant in any legal action or other proceeding relating to the servicing of the Subserviced Student Loans, the Servicer shall indemnify and hold the Subservicer harmless from all cost, liability or expense of the Subservicer not arising out of or relating to the failure of the Subservicer to comply with the terms of this Agreement.

Indemnification and Liability. The Subservicer A. Indemnification‌ Supplier shall defend all Commonwealth Indemnified Parties against any third party claim that Supplier-branded products or support/maintenance services (“Supplier Products”), or use of Supplier Products alone and not in combination with any third party products, services, or items (provide such use is in accordance with this Contract), that infringes or misappropriates a third party’s intellectual property rights enforceable in the country where VITA purchased the Supplier Products from Supplier (“IP Claim”); and indemnify Commonwealth Indemnified Parties by paying:(1) the resulting costs and damages finally awarded against Commonwealth Indemnified Parties by a court of competent jurisdiction to the extent that such are the result of the third party IP Claim; or (2) the amounts stated in a written settlement negotiated and approved by Supplier for any IP Claim. Selection and approval of counsel and approval of any settlement shall be liable accomplished in accordance herewith as set forth in Section 7 herein with all applicable laws, rules and regulations. For state agencies the applicable laws include §§ 2.2-510 and 2.2-514 of the Code. In all cases, the selection and approval of counsel, and approval of any settlement, shall be satisfactory to the Commonwealth, such approval not to be unreasonably withheld provided Supplier shall have the right and ability to make any final decisions regarding the resolution of the IP Claim. In the event of a settlement between Supplier and a private institution of higher education listed at xxxx://xxx.xxxx.xxx/Our- Colleges/Profiles.aspx who is an Authorized User of this Contract only to the extent provided by the applicable laws, such settlement shall be reasonably satisfactory to that institution provided Supplier shall have the right and ability to make any final decisions regarding the resolution of the obligations specifically undertaken by IP Claim.. In the Subservicer event that an IP Claim is commenced against any of Commonwealth’s Indemnified Parties alleging that the provision of support/maintenance services for Supplier-branded products under this AgreementContract infringes any third party’s Patent, copyright trade secret enforceable in the US and Supplier is of the opinion that the allegations in such Claim in whole or in part are not covered by this indemnification provision, Supplier shall immediately notify VITA in writing, via certified mail, specifying to what extent Supplier believes it is obligated to defend and indemnify under the terms and conditions of this Contract. For purposes Commonwealth Indemnified Parties may, at their own expense, participate in the defense of any IP Claim and represents their own interests and Supplier shall in such event make commercially reasonable efforts to provide reasonable cooperation to any Commonwealth Indemnified Parties to permit the Commonwealth Indemnified Parties to defend their interests. In the event of a Claim pursuant to any actual or alleged infringement or misappropriation of any third party’s intellectual property rights by any of the Services, and in addition to all other obligations of Supplier in this Section, Supplier shall at its expense, either (a) procure for VITA the right to continue use of such infringing Services, or any component thereof; or (b) replace or modify such infringing Services, or any component thereof, with non-infringing services reasonably satisfactory to VITA. And in addition, Supplier shall provide VITA with comparable temporary replacement services, or reimburse VITA for the reasonable costs incurred by VITA in obtaining alternative services in the event VITA cannot benefit from the affected Services. If Supplier cannot accomplish any of the termination foregoing within a reasonable time and at commercially reasonable rates, then Supplier shall accept the return of the rights and obligations infringing component of the Subservicer Services, along with any other components rendered unusable by VITA as Subservicer pursuant a result of the infringing component, and refund the price paid to Section 16Supplier for such components. Notwithstanding the foregoing, Supplier shall have no obligation under (a) if VITA or Authorized User is in material breach of this Contract or (b) for any IP Claim resulting or arising from (i) any modifications of the Suppliers Products that were not performed by or on behalf of Supplier; (ii) any combination, operation, or a resignation by such Subservicer pursuant to this Agreement, such Subservicer shall be deemed to be the Subservicer pending appointment use of a successor subservicer pursuant Supplier Product with any other products, services, items or technology, including third party products and open source software, where the IP Claim would not have arisen but for such combination, operation, or use; (iii) use for a purpose or in a manner for which the Supplier Product was not designed, or use after Supplier notifies VITA or Authorized User to Section 18cease such use due to a possible or pending IP Claim; (iv) any modifications made by any person other than Supplier or its authorized representatives; or (v) Supplier‘s compliance with VITA or Authorized User’s written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by VITA or Authorized User. Liability of the Subservicer Supplier's duty to indemnify and defend under this Section shall survive the resignation or removal is contingent upon: (i) Supplier receiving prompt written notice of the Subservicer third-party claim or the Servicer action for which Supplier is obligated to indemnify VITA or the termination of Authorized User under this Agreement. The Subservicer shall not be under any liability section; (ii) to the Servicergreatest extent allowable under applicable state law, Supplier having the Issuerright to control the defense and resolution of such claim or action, the Noteholdersprovided that resolution does not require monetary payment by VITA or Authorized User without its consent; and (iii) VITA or Authorized User’s cooperation with Supplier in defending and resolving such claim or action. This Section states VITA and/or Authorized User's exclusive remedies for any IP Claim or action, the Administrator, the Owner Trustee, the Indenture Administrator, the Indenture Trustee and nothing in this Contract or the Eligible Lender Trustee except as elsewhere will obligate Supplier to provide any greater indemnity to VITA or Authorized User. With respect to any IP Claim that non-supplier branded product(s) provided by Supplier under this AgreementAgreement infringes upon that person’s or entity’s patent, for copyright, trade secret or other intellectual property rights enforceable in the United States, Supplier agrees to extend to the appropriate Authorized User any action taken or for refraining from the taking of any action pursuant to this Agreement, for errors in judgment, for any incorrect or incomplete information indemnification protection provided by schoolsSupplier’s suppliers, Borrowers, Guarantors and the Department, for the failure of any party applicable to this Servicing Agreement or any other Basic Document to comply with its respective obligations hereunder or under any other Basic Document or for any losses attributable to the insolvency of any Guarantor. The Subservicer may rely in good faith on any document of any kind prima facie properly executed and submitted by any person respecting any matters arising under this Agreement. Except as provided in this Agreement, the Subservicer shall not be under any obligation to appear in, prosecute or defend any legal action where it is not named as a party; provided, howeversuch non-supplier branded product(s), that the Subservicer may undertake any reasonable action that it may deem necessary by its own terms be extended to such Authorized Users without additional payment or desirable in respect of this Agreement and the other Basic Documents and the rights and duties of the parties to this Agreement and the other Basic Documents and the interests of the Noteholders. To the extent that the Subservicer is required to appear in or is made a defendant in any legal action or other proceeding relating to the servicing of the Subserviced Student Loans, the Servicer shall indemnify and hold the Subservicer harmless from all cost, liability or expense of the Subservicer not arising out of or relating to the failure of the Subservicer to comply with the terms of this Agreementby Supplier.

Indemnification and Liability. The Subservicer shall be liable in accordance herewith as set forth in Section 7 herein only to the extent of the obligations specifically undertaken by the Subservicer under this Agreement. The Subservicer shall pay for any loss, liability, claim or expense (including, without limitation, costs and expenses of litigation and of investigation counsel fees, damages, judgments and amounts paid in settlement) that may be imposed on, incurred by or asserted against the Servicer, the Issuer, the Indenture Administrator, the Indenture Trustee, the Eligible Lender Trustee or the Owner Trustee by the Department pursuant to the Higher Education Act, to the extent that such loss, liability or expense arose out of, or was imposed upon the Servicer, the Issuer, the Indenture Administrator, the Indenture Trustee, the Eligible Lender Trustee or the Owner Trustee through, the negligence, willful misfeasance or bad faith of the Subservicer in the performance of its obligations and duties under this Agreement or by reason of the reckless disregard of its obligations and duties under this Agreement, where the final determination that any such loss, liability or expense arose out of, or was imposed upon the Servicer, the Issuer, the Indenture Administrator, the Indenture Trustee, the Eligible Lender Trustee or the Owner Trustee through, any such negligence, willful misfeasance, bad faith or recklessness on the part of the Subservicer is established by a court of law, by an arbitrator or by way of settlement agreed to by the Subservicer. Notwithstanding the foregoing, if the Subservicer is rendered unable, in whole or in part, by a force outside the control of the parties hereto (including acts of God, acts of war, fires, earthquakes, hurricanes, floods and other disasters) to satisfy its obligations under this Agreement, the Subservicer shall not be deemed to have breached any such obligation upon delivery of written notice of such event to the other parties hereto, for so long as the Subservicer remains unable to perform such obligation as a result of such event. For purposes of this Section, in the event of the termination of the rights and obligations of the Subservicer as Subservicer pursuant to Section 16, or a resignation by such Subservicer pursuant to this Agreement, such Subservicer shall be deemed to be the Subservicer pending appointment of a successor subservicer pursuant to Section 18. Liability of the Subservicer under this Section shall survive the resignation or removal of the Subservicer or the Servicer or the termination of this Agreement. If the Subservicer shall have made any payments pursuant to this Section and the Person to or on behalf of whom such payments are made thereafter collects any of such amounts from others, such Person shall promptly repay such amounts to the Subservicer, without interest. The Subservicer shall not be under any liability to the Servicer, the Issuer, the Noteholders, the Administrator, the Owner Trustee, the Indenture Administrator, the Indenture Trustee or the Eligible Lender Trustee except as provided under this Agreement, for any action taken or for refraining from the taking of any action pursuant to this Agreement, for errors in judgment, for any incorrect or incomplete information provided by schools, Borrowers, Guarantors and the Department, for the failure of any party to this Servicing Agreement or any other Basic Document to comply with its respective obligations hereunder or under any other Basic Document or for any losses attributable to the insolvency of any Guarantor. The Subservicer may rely in good faith on any document of any kind prima facie properly executed and submitted by any person respecting any matters arising under this Agreement. Except as provided in this Agreement, the Subservicer shall not be under any obligation to appear in, prosecute or defend any legal action where it is not named as a party; provided, however, that the Subservicer may undertake any reasonable action that it may deem necessary or desirable in respect of this Agreement and the other Basic Documents and the rights and duties of the parties to this Agreement and the other Basic Documents and the interests of the Noteholders. To the extent that the Subservicer is required to appear in or is made a defendant in any legal action or other proceeding relating to the servicing of the Subserviced Student Loans, the Servicer shall indemnify and hold the Subservicer harmless from all cost, liability or expense of the Subservicer not arising out of or relating to the failure of the Subservicer to comply with the terms of this Agreement.

Indemnification and Liability. The Subservicer shall be liable in accordance herewith as set forth in Section 7 herein only to the extent of the obligations specifically undertaken by the Subservicer under this Agreement. For purposes of this Section, in the event of the termination of the rights and obligations of the Subservicer as Subservicer pursuant to Section 16, or a resignation by such Subservicer pursuant to this Agreement, such Subservicer shall be deemed to be the Subservicer pending appointment of a successor subservicer pursuant to Section 18. Liability of the Subservicer under this Section shall survive the resignation or removal of the Subservicer or the Servicer or the termination of this Agreement. The Subservicer shall not be under any liability to the Servicer, the Issuer, the Noteholders, the Administrator, the Owner Trustee, the Indenture Administrator, Administrator or the Indenture Trustee or the Eligible Lender Trustee except as provided under this Agreement, for any action taken or for refraining from the taking of any action pursuant to this Agreement, for errors in judgment, for any incorrect or incomplete information provided by schools, Borrowers, Guarantors Borrowers and the DepartmentInsurance Companies, for the failure of any party to this Servicing Agreement or any other Basic Document to comply with its respective obligations hereunder or under any other Basic Document or for any losses attributable to the insolvency of any GuarantorInsurance Company. The Subservicer may rely in good faith on any document of any kind prima facie properly executed and submitted by any person respecting any matters arising under this Agreement. Except as provided in this Agreement, the Subservicer shall not be under any obligation to appear in, prosecute or defend any legal action where it is not named as a party; provided, however, that the Subservicer may undertake any reasonable action that it may deem necessary or desirable in respect of this Agreement and the other Basic Documents and the rights and duties of the parties to this Agreement and the other Basic Documents and the interests of the Noteholders. To the extent that the Subservicer is required to appear in or is made a defendant in any legal action or other proceeding relating to the servicing of the Subserviced Student Loans, the Servicer shall indemnify and hold the Subservicer harmless from all cost, liability or expense of the Subservicer not arising out of or relating to the failure of the Subservicer to comply with the terms of this Agreement.

Indemnification and Liability. The Subservicer shall be liable in accordance herewith as set forth in Section 7 herein only to the extent of the obligations specifically undertaken by the Subservicer under this Agreement. The Subservicer shall pay for any loss, liability or expense, including reasonable attorneys' fees, that may be imposed on, incurred by or asserted against the Servicer, the Issuer or the Owner Trustee by the Department pursuant to the Higher Education Act, to the extent that such loss, liability or expense arose out of, or was imposed upon the Servicer, the Issuer or the Owner Trustee through, the negligence, willful misfeasance or bad faith of the Subservicer in the performance of its obligations and duties under this Agreement or by reason of the reckless disregard of its obligations and duties under this Agreement, where the final determination that any such loss, liability or expense arose out of, or was imposed upon the Servicer, the Issuer or the Owner Trustee through, any such negligence, willful misfeasance, bad faith or recklessness on the part of the Subservicer is established by a court of law, by an arbitrator or by way of settlement agreed to by the Subservicer. Notwithstanding the foregoing, if the Subservicer is rendered unable, in whole or in part, by a force outside the control of the parties hereto (including acts of God, acts of war, fires, earthquakes, hurricanes, floods and other disasters) to satisfy its obligations under this Agreement, the Subservicer shall not be deemed to have breached any such obligation upon delivery of written notice of such event to the other parties hereto, for so long as the Subservicer remains unable to perform such obligation as a result of such event. For purposes of this Section, in the event of the termination of the rights and obligations of the Subservicer as Subservicer pursuant to Section 1612, or a resignation by such Subservicer pursuant to this Agreement, such Subservicer shall be deemed to be the Subservicer pending appointment of a successor subservicer pursuant to Section 1814. Liability of the Subservicer under this Section shall survive the resignation or removal of the Subservicer or the Servicer or the termination of this Agreement. If the Subservicer shall have made any payments pursuant to this Section and the Person to or on behalf of whom such payments are made thereafter collects any of such amounts from others, such Person shall promptly repay such amounts to the Subservicer, without interest. The Subservicer shall not be under any liability to the Servicer, the Issuer, the Noteholders, the Interest Rate Cap Counterparty, the Administrator, the Owner Trustee, the Indenture Administrator, Administrator or the Indenture Trustee or the Eligible Lender Trustee except as provided under this Agreement, for any action taken or for refraining from the taking of any action pursuant to this Agreement, for errors in judgment, for any incorrect or incomplete information provided by schools, Borrowersborrowers, Guarantors and the Department, for the failure of any party to this Servicing Agreement or any other Basic Document to comply with its respective obligations hereunder or under any other Basic Document or for any losses attributable to the insolvency of any Guarantor. The Subservicer may rely in good faith on any document of any kind prima facie properly executed and submitted by any person respecting any matters arising under this Agreement. Except as provided in this Agreement, the Subservicer shall not be under any obligation to appear in, prosecute or defend any legal action where it is not named as a party; provided, however, that the Subservicer may undertake any reasonable action that it may deem necessary or desirable in respect of this Agreement and the other Basic Documents and the rights and duties of the parties to this Agreement and the other Basic Documents and the interests of the Noteholders. To the extent that the Subservicer is required to appear in or is made a defendant in any legal action or other proceeding relating to the servicing of the Subserviced Student Loans, the Servicer shall indemnify and hold the Subservicer harmless from all cost, liability or expense of the Subservicer not arising out of or relating to the failure of the Subservicer to comply with the terms of this Agreement.