Common use of Indemnification by the Partnership Clause in Contracts

Indemnification by the Partnership. The Partnership shall, to the fullest extent lawful, reimburse, indemnify, defend and hold each of Operator and its Affiliates and their respective directors, managers, officers, employees and agents (the “Operator Indemnified Parties”), harmless of and from any and all expenses, losses, damages, liabilities, demands, charges and claims of any nature whatsoever (including claims for personal injury, death or property damage and including reasonable attorneys’ fees and court costs) (each a “Loss” and collectively, “Losses”) suffered by any Operator Indemnified Party as a result of, caused by, or arising out of (a) any breach by the Partnership of this Agreement and (b) any action, suit, claim, demand or proceeding commenced by a Third Party relating to (i) the acts or omissions by any of Operator Indemnified Parties (A) in connection with providing or failing to provide the Services (including a breach by Operator of this Agreement), except to the extent such Losses are caused by the willful misconduct or, subject to Section 5.4(b), gross negligence of any Operator Indemnified Party or the intentional or willful breach by Operator of this Agreement (in each case, as established by a final, non-appealable and binding decision of a court of competent jurisdiction in accordance with Section 7.1) or (B) relating to actions or omissions by any of Operator Indemnified Parties performed or omitted at the direction of the Partnership, except to the extent such Losses are caused by the willful misconduct or, subject to Section 5.4(b), gross negligence of any Operator Indemnified Party or the intentional or willful breach by Operator of this Agreement (in each case, as established by a final, non-appealable and binding decision of a court of competent jurisdiction in accordance with Section 7.1) and (ii) the Partnership’s gross negligence or willful misconduct. THE REIMBURSEMENT, INDEMNITY, DEFENSE, AND HOLD HARMLESS RIGHTS SET FORTH IN THIS SECTION 5.3 SHALL BE APPLICABLE EVEN IF SUCH LOSSES AROSE IN WHOLE OR IN PART FROM THE ACTIVE, PASSIVE, SOLE OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, BREACH OR OTHER FAULT OF ANY OPERATOR INDEMNIFIED PARTY, BUT EXCLUDING THOSE LOSSES THAT ARE CAUSED BY THE WILLFUL MISCONDUCT OR, SUBJECT TO SECTION 5.4(B), GROSS NEGLIGENCE OF ANY OPERATOR INDEMNIFIED PARTY OR THE INTENTIONAL OR WILLFUL BREACH BY OPERATOR OF THIS AGREEMENT, IN EACH CASE, AS ESTABLISHED BY A FINAL, NON-APPEALABLE AND BINDING DECISION OF A COURT OF COMPETENT JURISDICTION IN ACCORDANCE WITH SECTION 7.1.

Indemnification by the Partnership. The Partnership shall, to the fullest extent lawful, reimburse, indemnify, defend shall indemnify and hold each of Operator the MTVN Indemnified Parties and its Affiliates the Tune Indemnified Parties harmless from and their respective directorsagainst, managersand agree promptly to defend any such Indemnified Party from and reimburse any such Indemnified Party for, officers, employees and agents (the “Operator Indemnified Parties”), harmless of and from any and all expensesLosses which any such Indemnified Party may suffer or incur, lossesor become subject to (including, damageswith respect to TCI Music, liabilities, demands, charges and claims of any nature whatsoever (including claims for personal injury, death Losses suffered or property damage and including reasonable attorneys’ fees and court costs) (each a “Loss” and collectively, “Losses”) suffered incurred by any Operator Indemnified Party as a result ofaffiliated entity under the Irrevocable Standby Letter of Credit dated January 13, caused by1999 in the amount of $459,000 issued by Bank of America NT & SA for the benefit of TM Park Avenue Associates), or arising out of or resulting from, without duplication, (a) any breach failure by the Partnership to carry out, perform, satisfy and discharge any of its covenants, agreements, undertakings, liabilities or obligations under this Agreement and the Contribution Agreements to which it is a party, (b) any actionthe VLLC Liabilities and the Imagine Liabilities, suit, claim, demand or proceeding commenced by a Third Party relating to (ic) the acts Box LLC Liabilities and the SonicNet LLC Liabilities, (d) any liabilities which arise out of a breach or omissions by violation of any non-assignment or change of Operator Indemnified Parties (A) in connection with providing control provision insofar as such breach or failing to provide the Services violation resulted from or arose out of (including as a result of a claim of anticipatory breach of contract) the consummation of the transactions contemplated hereby, including any failure to obtain any consent or waiver, and (e) all other liabilities assumed by Operator of this Agreement), except the Partnership (but only to the extent so assumed) under any Contribution Agreements or under any other Contract entered into by or assigned or contributed to, or to be assigned or contributed to, the Partnership in connection herewith; provided, however, that the Partnership shall not be obligated to indemnify 52 46 any indemnified party with respect to any obligations that relate to pre-Closing periods (other than those relating to certain accounts payable, accrued expenses, prepayments and similar working capital items identified on the balance sheets attached to Schedule 4.12 or 6.17 hereto or of the same types as such Losses items reflected on the balance sheet which were incurred since the date thereof in the ordinary course of business and consistent with past practice and are caused by not in excess of historical amounts for comparable periods) or arise out of a breach or violation prior to the willful misconduct or, subject to Section 5.4(b), gross negligence Closing of any Operator Indemnified Party or the intentional or willful breach by Operator of this Agreement provision (in each case, as established by other than a final, non-appealable and binding decision of a court of competent jurisdiction assignment or change in accordance with Section 7.1) or (B) relating control provision insofar as it relates to actions or omissions by any of Operator Indemnified Parties performed or omitted at the direction consummation of the Partnershiptransactions contemplated hereby, except for which the Partnership shall provide indemnity under clause (d) above) of any Contract assigned or contributed to the extent such Losses are caused by the willful misconduct or, subject to Section 5.4(b), gross negligence of any Operator Indemnified Party or the intentional or willful breach by Operator of this Agreement (Partnership in each case, as established by a final, non-appealable and binding decision of a court of competent jurisdiction in accordance with Section 7.1) and (ii) the Partnership’s gross negligence or willful misconduct. THE REIMBURSEMENT, INDEMNITY, DEFENSE, AND HOLD HARMLESS RIGHTS SET FORTH IN THIS SECTION 5.3 SHALL BE APPLICABLE EVEN IF SUCH LOSSES AROSE IN WHOLE OR IN PART FROM THE ACTIVE, PASSIVE, SOLE OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, BREACH OR OTHER FAULT OF ANY OPERATOR INDEMNIFIED PARTY, BUT EXCLUDING THOSE LOSSES THAT ARE CAUSED BY THE WILLFUL MISCONDUCT OR, SUBJECT TO SECTION 5.4(B), GROSS NEGLIGENCE OF ANY OPERATOR INDEMNIFIED PARTY OR THE INTENTIONAL OR WILLFUL BREACH BY OPERATOR OF THIS AGREEMENT, IN EACH CASE, AS ESTABLISHED BY A FINAL, NON-APPEALABLE AND BINDING DECISION OF A COURT OF COMPETENT JURISDICTION IN ACCORDANCE WITH SECTION 7.1connection herewith.