Exclusions from Indemnification Clause Samples

Exclusions from Indemnification. Notwithstanding anything in this Agreement to the contrary, the Company shall not be obligated to: (a) indemnify Indemnitee if a final non-appealable adjudication by a court of competent jurisdiction determines that such indemnification is prohibited by applicable law; (b) indemnify Indemnitee for the disgorgement of profits arising from the purchase or sale by Indemnitee of securities of the Company in violation of Section 16(b) of the Exchange Act, or any similar successor statute; or (c) indemnify or advance funds to Indemnitee for Indemnitee’s reimbursement to the Company of any bonus or other incentive-based or equity-based compensation previously received by Indemnitee or payment of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements under Section 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 in connection with an accounting restatement of the Company or the payment to the Company of profits arising from the purchase or sale by Indemnitee of securities in violation of Section 306 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act).

Exclusions from Indemnification. Notwithstanding Sections 8.1 and 8.2 hereof, NantHealth will have no obligation or liability with respect to any Claim or action regarding any Claim that results from the following: (a) unauthorized modifications to NantHealth’s products or services by any Indemnified Person; (b) the combination, operation or use of the NantHealth’s products or services with other products, processes or materials if the NantHealth’s products or services themselves do not infringe; (c) the Indemnified Persons’ continued engagement in infringing or allegedly infringing activities after receipt of notice from NantHealth of a Claim and after being provided with modifications that would have avoided the alleged infringement; or (d) any marketing, sale or use of NantHealth’s products or services that is not in compliance with this Agreement.

Exclusions from Indemnification. Notwithstanding anything in this Agreement to the contrary, the Company shall not be obligated to: (a) indemnify or advance funds to Indemnitee for Expenses or Losses with respect to proceedings initiated by Indemnitee, including any proceedings against the Company or its directors, officers, employees or other indemnitees and not by way of defense, except: (i) proceedings referenced in Section 5 above (unless a court of competent jurisdiction determines that each of the material assertions made by Indemnitee in such proceeding was not made in good faith or was frivolous); or (ii) where the Company has joined in or the Board has consented to the initiation of such proceedings. (b) indemnify Indemnitee for Expenses that would constitute Losses hereunder if a final decision by a court of competent jurisdiction determines that any such Expenses are unreasonable, provided that the burden of proof that any such Expenses are unreasonable shall be on the Company. (c) indemnify Indemnitee if a final decision by a court of competent jurisdiction determines that such indemnification is prohibited by applicable law. (d) indemnify Indemnitee for the disgorgement of profits arising from the purchase or sale by Indemnitee of securities of the Company in violation of Section 16(b) of the Exchange Act, or any similar successor statute. (e) indemnify or advance funds to Indemnitee for Indemnitee’s reimbursement to the Company of any bonus or other incentive-based or equity-based compensation previously received by Indemnitee or payment of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements under Section 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 in connection with an accounting restatement of the Company or the payment to the Company of profits arising from the purchase or sale by Indemnitee of securities in violation of Section 306 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act).

Exclusions from Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity payment or advancement of Expenses in connection with any claim made against Indemnitee: (a) on account of any action, suit or proceeding in which judgment is rendered against the Indemnitee for disgorgement of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or similar provisions of any federal, state or local statutory law; (b) on account of conduct of the Indemnitee which is finally adjudged by a court of competent jurisdiction to have been knowingly fraudulent or dishonest or to constitute willful misconduct; (c) in any circumstance where such indemnification is expressly prohibited by applicable law; (d) with respect to liability for which payment is actually made to the Indemnitee under a valid and collectible insurance policy of the Company or under a valid and enforceable indemnity clause, Bylaw or agreement (other than this Agreement) of the Company, except in respect of any liability in excess of payment under such insurance, clause, Bylaw or agreement; (e) if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful (and, in this respect, both the Company and the Indemnitee have been advised that it is the position of the Securities and Exchange Commission that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable, and that claims for indemnification should be submitted to the appropriate court for adjudication); or (f) in connection with any Proceeding by the Indemnitee, in his capacity as a director or officer of the Company, against the Company or any of its direct or indirect subsidiaries or the directors, officers, employees or other Indemnitees of the Company or any of its direct or indirect subsidiaries, unless (i) such indemnification is expressly required to be made by law, (ii) the Proceeding was authorized by the Board of Directors of the Company, (iii) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under applicable law, or (iv) otherwise provided in Sections 12 and 13 hereof.

Exclusions from Indemnification. Notwithstanding anything in this Agreement to the contrary, the Company shall not be obligated to: (a) indemnify or advance funds to Indemnitee for Expenses or Losses with respect to proceedings initiated by Indemnitee, including any proceedings against the Company or its directors, officers, employees or other indemnitees and not by way of defense, except: (i) proceedings referenced in Section 6 above (unless a court of competent jurisdiction determines that each of the material assertions made by Indemnitee in such proceeding was not made in good faith or was frivolous); or (ii) where the Company has joined in or the Board has consented to the initiation of, or otherwise authorized, such proceedings;

Exclusions from Indemnification. The right to indemnification in Section 7(a) does not include any liability or expense relating to a matter in which the CEO is finally adjudged to have breached or failed to perform a duty that CEO owes to the USPB Entities and the breach or failure to perform constitutes any of the following: (1) a willful failure to deal fairly with the USPB Entities, or USPB or its members in connection with a matter in which the CEO has a material conflict of interest; (2) a violation of the criminal law, unless the CEO had reasonable cause to believe that CEO’s conduct was lawful or no reasonable cause to believe that CEO’s conduct was unlawful; (3) a transaction from which the CEO derived an improper personal profit; or (4) willful misconduct. Determination of whether the CEO is entitled to the indemnification provided for above shall be made as provided in the Delaware Limited Liability Company Act.

Exclusions from Indemnification. Notwithstanding anything in this Agreement to the contrary, the Company shall not be obligated to: (a) indemnify or advance funds to Indemnitee for Expenses or Losses with respect to proceedings initiated by ▇▇▇▇▇▇▇▇▇▇, including any proceedings against the Company or its directors, officers, employees or other indemnitees and not by way of defense, except: (i) proceedings referenced in Section 4 above (unless a court of competent jurisdiction determines that each of the material assertions made by Indemnitee in such proceeding was not made in good faith or was frivolous); or (ii) where the Company has joined in or the Board has consented to the initiation of such proceedings; (b) indemnify Indemnitee if a final decision by a court of competent jurisdiction determines that such indemnification is prohibited by applicable law; (c) indemnify Indemnitee for the disgorgement of profits arising from the purchase or sale by Indemnitee of securities of the Company in violation of Section 16(b) of the Exchange Act, or any similar successor statute; or (d) indemnify or advance funds to Indemnitee for Indemnitee’s reimbursement to the Company of any bonus or other incentive-based or equity-based compensation previously received by Indemnitee or payment of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements under Section 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 in connection with an accounting restatement of the Company or the payment to the Company of profits arising from the purchase or sale by Indemnitee of securities in violation of Section 306 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act).

Exclusions from Indemnification. Notwithstanding Sections 11.1 and 11.2 above, the Indemnifying Party will have no obligation or liability under this Section 11 for any Claim or action regarding any Claim resulting from any of the following: (a) modifications to the Indemnifying Party’s services, products or marketing materials made pursuant to the Indemnified Persons’ designs, specifications, or instructions; (b) modifications to the Indemnifying Party’s services, products, or marketing materials by anyone other than the Indemnifying Party, other than modifications authorized in writing by the Indemnifying Party; (c) the combination, operation, or use of Indemnifying Party’s services, products or marketing materials with other products, processes, or materials if the Indemnifying Party’s services, products or marketing materials themselves do not infringe; (d) Indemnified Persons’ or its customers’ continued engagement in allegedly infringing activities after receipt of notice from the Indemnifying Party of a Claim and after being provided with modifications that would have avoided the alleged infringement; or (e) any marketing, sale or use of the Indemnifying Party’s services, products or marketing materials that is not in compliance with this Agreement.

Exclusions from Indemnification. Notwithstanding the foregoing, PSI shall have no indemnity obligation under this Section 12 for any Claim relating to: (i) modifications of the Software made by any entity other than PSI, if such Claim would not have arisen or such infringement or misappropriation would not have occurred but for such modifications, (ii) combination or use of the Software with other products (including without limitation an Application) if such Claim would not have arisen or such infringement or misappropriation would not have occurred but for such combination or use, (iii) use of an outdated version of the Software after PSI has made available an updated version which does not infringe, or (vi) any functionality of the Software made at Intershop's request, if such Claim would not have arisen or such infringement or misappropriation would not have occurred but for such functionality.