Indemnification by Sellers (a) Each Seller shall jointly and severally indemnify Acquiror and its subsidiaries (the “Acquiror Indemnified Parties”) against and hold them harmless from any loss, liability, claim, damage or expense including legal fees and expenses (collectively, “Losses”) suffered or incurred by such Acquiror Indemnified Party arising from, relating to or otherwise in respect of:
(i) any breach of any representation or warranty of Sellers contained in this Agreement or certificate delivered by or on behalf of Sellers pursuant thereto, in each case other than with respect to Section 2.07 (but only excluding Section 2.07 to the extent a breach of the applicable representation or warranty would give rise to an indemnification claim pursuant to Section 7.01(a)(iii) or Section 7.01(a)(iv));
(ii) any breach of any covenant of Sellers contained in this Agreement and any liability (whether known, unknown, accrued, unaccrued, contingent, matured or unmatured) of Kos Investments and Kos Holdings in existence at the Closing Date other than any item that would give rise to an indemnification claim pursuant to Section 7.01(a)(iii) or Section 7.01(a)(iv) and liability that is discharged in connection with the Closing;
(iii) all liability for Taxes of Kos Investments and Kos Holdings allocable to the Preclosing Period as determined under Section 7.03(b); and
(iv) all liability for the Preclosing Periods (as a result of Treasury Regulation § 1.1502-6(a), by contract or otherwise) for Taxes of any entity or person (other than Kos Investments and Kos Holdings) which is or has ever been affiliated with Kos Investments or Kos Holdings if such Tax arises as a result of such affiliation.
(b) In no event shall Acquiror be indemnified to the extent of any liabilities taken into account in the calculation of the Closing Payment. The indemnification provided in this Article VII shall be the sole and exclusive remedy of Acquiror against Sellers for monetary relief under this Agreement or in respect of the transactions contemplated hereby. Each party hereto agrees that the previous sentence shall not limit or otherwise affect any non-monetary right or remedy which any party may have under this Agreement or otherwise limit or affect any party’s right to seek equitable relief, including the remedy of specific performance.
Indemnification by Us We shall defend You against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability and You may not make any admissions or settlements without Our prior written consent); (c) provide to Us all reasonable assistance, at Our expense; and (d) provided that such infringement or misappropriation of any third party's intellectual property rights is not resulting from: (i) Your or Your Users misuse of the Services or the Site; (ii) Your use of the Services together with a Third Party Application or integration; or (iii) from non-compliance by You or Your Users of the terms and conditions contained herein. In the event of a Claim against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under Section 9.1 (Our Warranties) above, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.
Indemnification by Distributor Distributor agrees to indemnify the Trust, its officers and Trustees and any person which controls the Trust within the meaning of the 1933 Act against any and all claims, demands, liabilities and expenses that any such indemnified party may incur under the 1933 Act, or common law or otherwise, arising out of or based upon (i) any alleged untrue statement of a material fact contained in the registration statement for any Fund, any Prospectus or Statement of Additional Information, or any advertisements or sales literature prepared by or on behalf of the Trust for Distributor's use, or any omission to state a material fact therein, the omission of which makes any statement contained therein misleading, if such statement or omission was made in reliance upon and in conformity with information furnished to the Trust in connection therewith by or on behalf of Distributor; and (ii) any act or deed of Distributor or its sales representatives that has not been authorized by the Trust in any Prospectus or Statement of Additional Information or by this Agreement.
Indemnification by Buyers (a) From and after the Closing, and subject to this ARTICLE 8, Buyers, jointly and severally, shall defend, indemnify and hold harmless Seller and each of its Affiliates and their respective officers, directors, employees and agents (collectively, the “Seller Indemnitees”) from and against, and pay or reimburse the Seller Indemnitees for, any and all Losses to the extent resulting from: (i) any breach of any representation or warranty made by Buyers in ARTICLE 3; or (ii) any breach in performance by Buyers of any of their respective covenants or agreements contained herein. Seller Indemnitees shall not be entitled to recover under Section 8.3(a)(i) for an individual claim or group of related claims unless and until the amount of Losses that otherwise would be payable pursuant to Section 8.3(a)(i) with respect to such claim or group of related claims exceeds the Per Claim Threshold, provided, further, that no claims by Seller Indemnitees shall be asserted under Section 8.3(a)(i) unless and until the aggregate amount of Losses that would otherwise be payable hereunder exceeds on a cumulative basis the Indemnification Deductible, and then only to the extent such Losses exceed the Indemnification Deductible. Any such individual claims or group of related claims for the amounts less than the Per Claim Threshold shall be ignored in determining whether the Indemnification Deductible has been exceeded. The Per Claim Threshold and the Indemnification Deductible shall not apply with respect to any: (i) claims for indemnification for any breach of a Fundamental Representation; or (ii) claims with respect to any Buyer’s actual and intentional fraud with respect to any express provisions in this Agreement.
(b) Notwithstanding the limitations set forth above in Section 8.3(a), Buyers shall not be liable for indemnification for any claims made pursuant to Section 8.3(a)(i) in excess of $102,500,000.
(c) Notwithstanding anything to the contrary herein, the limitations in Section 8.3(b) shall not apply with respect to any: (i) claims for indemnification for any breach of a Fundamental Representation; or (ii) claims with respect to any Buyer’s actual and intentional fraud with respect to any express provisions in this Agreement; provided, however, in no event shall the aggregate monetary obligations of Buyers or any of their respective Affiliates in connection with the transactions contemplated by this Agreement exceed the Final Purchase Price.
(d) For purposes of calculating Losses hereunder (but not for purposes of establishing whether a breach has occurred), any materiality qualifications in the representations and warranties in ARTICLE 3 shall be disregarded.
Indemnification by Client Client shall indemnify and hold Dalmore, its affiliates and their representatives and agents harmless from, any and all actual or direct losses, liabilities, judgments, arbitration awards, settlements, damages and costs (collectively, “Losses”), resulting from or arising out of any third party suits, actions, claims, demands or similar proceedings (collectively, “Proceedings”) to the extent they are based upon (i) a breach of this Agreement by Client, (ii) the wrongful acts or omissions of Client, or (iii) the Offering.