Common use of Indemnification Liability Clause in Contracts

Indemnification Liability. 9.1 FEI shall indemnify and hold ETG harmless against all fines, losses, damages, costs and expenses, whether directly or indirectly arising from a claim brought by a third party claiming that the manufacture, sale or use of any Product developed or manufactured hereunder due to use of FEI IPR’s constitute(d) infringement of one or more of the patent rights or other IPR’s of such third party, together with the actual costs and expenses incurred by ETG in connection with such a claim by such third party and that ETG will give FEI full authority to, at the option of FEI, either settle or defend such claim, suit or proceeding and all reasonable co-operation and assistance in case FEI decides to defend such a claims, suit or proceeding and provided further that ETG will refrain from any activity that can jeopardise or harm the defence of any such claim made by a third party. FEI shall have no liability for any claim of infringement of IPR’s based on the use of a combination of the manufacture, sale or use of the Product with other materials not provided by FEI. FEI shall not, without the consent of ETG, enter into any settlement or agree to any disposition that imposes any conditions or obligations on ETG other than the payment of monies that are readily measurable for purposes of determining the monetary indemnification or reimbursement obligations of FEI. 9.2 ETG shall indemnify and hold FEI harmless against all fines, losses, damages, costs and expenses, whether directly or indirectly arising from a claim brought by a third party claiming that the sale or use of any Product developed or manufactured hereunder due to use of ETG IPR’s constitute(d) infringement of one or more of the patent rights or other IPR’s of such third party, together with the actual costs and expenses incurred by FEI in connection with such a claim by such third party and that FEI will give ETG full authority to, at the option of ETG, either settle or defend such claim, suit or proceeding and all reasonable co-operation and assistance in case ETG decides to defend such a claims, suit or proceeding and provided further that FEI will refrain from any activity that can jeopardise or harm the defence of any such claim made by a third party. ETG shall not, without the consent of FEI, enter into any settlement or agree to any disposition that imposes any conditions or obligations on FEI other than the payment of monies that are readily measurable for purposes of determining the monetary indemnification or reimbursement obligations of ETG. 9.3 Both Parties agree that neither Party is aware of any such infringement set forth in 9.1 or 9.2 for Products currently developed or manufactured under this Agreement. The Parties shall inform each other at the earliest opportunity of any possible infringement in so far as they are aware or could reasonably be aware of such infringement. 9.4 In the event that a Product is held in any suit or proceeding, or in FEI’s reasonable opinion is likely, to infringe, violate or misappropriate a third party’s intellectual property right or other proprietary right, ETG will, at its option and expense, do one of the following: (a) replace the Product, without additional charge, with a compatible, functionally equivalent and non-infringing product with an equivalent or greater performance, (b) modify the Product so that it will be free of the infringement, violation or misappropriation provided that such modified Product complies with the Specifications and all other applicable requirements, or (c) procure for FEI the right to continue to purchase and distribute and, for FEI and its customers, the right to (continue to) use the Product as contemplated by this Agreement. 9.5 ETG shall have no obligation under Section 9.1or 9.4 to the extent technical claim of infringement, violation or misappropriation results from FEI IPR’s or compliance of the Product with Specifications furnished by FEI in writing, but only if the infringement, violation or misappropriation would not have occurred but for such compliance. 9.6 ETG agrees to indemnify and hold FEI and its Affiliates harmless from and against all direct liabilities, claims, fines, losses, damages, costs and expenses (including reasonable attorney’s fees), arising from, relating or in connection with (i) ETG’s or its officers, employees, subcontractors or agents’ failure to comply with the terms or other requirements of this Agreement or otherwise any acts or omissions to act arising from, related to or in connection with this Agreement by ETG, its employees, subcontractors or agents or (ii) any death, personal injury or loss or damage to property caused by the Products or the use thereof or by ETG, its officers, employees, subcontractors or agents, regardless of whether such damages were foreseeable or ETG was advised of the possibility of such damages up to a maximum of €2,500,000 per annum. 9.7 IN NO EVENT SHALL FEI OR ITS AFFILIATES OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE HEREUNDER FOR ANY ECONOMIC LOSSES OR DAMAGES, LOSS OF BUSINESS, PROFITS OR REVENUE, GOODWILL AND ANTICIPATED SAVINGS, LOSS OF CORRUPTION TO DATA OR LOSS OF OPERATION TIME OR ANY OTHER INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, PUNITIVE OR INCONSEQUENTIAL LOSS OR DAMAGE, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. THE DAMAGE LIMITATIONS SET OUT IN THIS PARAGRAPH SHALL NOT APPLY TO THE IPR OR CONFIDENTIALITY INDEMNIFICATION OBLIGATIONS OF THE PARTIES HEREUNDER. 9.8 IN NO EVENT SHALL ETG OR ITS AFFILIATES OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE HEREUNDER FOR ANY ECONOMIC LOSSES OR DAMAGES, LOSS OF BUSINESS, PROFITS OR REVENUE, GOODWILL AND ANTICIPATED SAVINGS, LOSS OF CORRUPTION TO DATA OR LOSS OF OPERATION TIME OR ANY OTHER INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, PUNITIVE OR INCONSEQUENTIAL LOSS OR DAMAGE, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. THE DAMAGE LIMITATIONS SET OUT IN THIS PARAGRAPH SHALL NOT APPLY TO THE IPR OR CONFIDENTIALITY INDEMNIFICATION OBLIGATIONS OF THE PARTIES HEREUNDER.

Indemnification Liability. 9.1 FEI shall indemnify a. Each Applicant, unless it is a government entity, acknowledges and hold ETG harmless against all finesagrees that DirectTrust, lossesand their respective employees, damagesofficers, costs directors, representatives and expensesagents (each, whether directly or indirectly arising from a claim brought by a third party claiming that the manufacture, sale or use of any Product developed or manufactured hereunder due to use of FEI IPR’s constitute(dan “Indemnitee”) infringement of one or more of the patent rights or other IPR’s of such third party, together with the actual costs and expenses incurred by ETG in connection with such a claim by such third party and that ETG will give FEI full authority to, at the option of FEI, either settle or defend such claim, suit or proceeding and all reasonable co-operation and assistance in case FEI decides to defend such a claims, suit or proceeding and provided further that ETG will refrain from any activity that can jeopardise or harm the defence of any such claim made by a third party. FEI shall have no liability for any claim and each Applicant shall, to the fullest extent permitted by applicable law, indemnify, defend, and hold Indemnitees harmless from third-party claims and actions that arise out of, relate to or result from (i) the acceptance and review, and approval or disapproval of infringement of IPRApplicant’s based on the use of a combination of the manufacture, sale or use of the Product with other materials not provided by FEI. FEI shall not, without the consent of ETG, enter into any settlement or agree to any disposition that imposes any conditions or obligations on ETG application for DirectTrust Accreditation (other than claims or actions arising out of, related to or resulting from the payment Indemnitee’s negligence or willful misconduct), or (ii) an Applicant’s breach of monies that are readily measurable for purposes of determining the monetary indemnification or reimbursement its specific obligations of FEI. 9.2 ETG shall indemnify and hold FEI harmless against all fines, losses, damages, costs and expenses, whether directly or indirectly arising from a claim brought by a third party claiming that the sale or use of any Product developed or manufactured hereunder due to use of ETG IPR’s constitute(d) infringement of one or more of the patent rights or other IPR’s of such third party, together with the actual costs and expenses incurred by FEI in connection with such a claim by such third party and that FEI will give ETG full authority to, at the option of ETG, either settle or defend such claim, suit or proceeding and all reasonable co-operation and assistance in case ETG decides to defend such a claims, suit or proceeding and provided further that FEI will refrain from any activity that can jeopardise or harm the defence of any such claim made by a third party. ETG shall not, without the consent of FEI, enter into any settlement or agree to any disposition that imposes any conditions or obligations on FEI other than the payment of monies that are readily measurable for purposes of determining the monetary indemnification or reimbursement obligations of ETG. 9.3 Both Parties agree that neither Party is aware of any such infringement set forth in 9.1 or 9.2 for Products currently developed or manufactured under this Agreement. The Parties obligations of each Applicant party (the “Indemnitor”) under this Agreement to defend, indemnify and hold harmless each Indemnitee shall inform each other at the earliest opportunity of any possible infringement in so far as they are aware or could reasonably be aware of such infringement. 9.4 In the event that a Product is held in any suit or proceeding, or in FEI’s reasonable opinion is likely, subject to infringe, violate or misappropriate a third party’s intellectual property right or other proprietary right, ETG will, at its option and expense, do one of the following: (a) replace the ProductIndemnitee shall provide the Indemnitor with prompt notice of the claim giving rise to such obligation; provided, without additional chargehowever, with a compatiblethat any failure or delay in giving such notice shall only relieve the Indemnitor of its obligation to defend, functionally equivalent indemnify and non-infringing product with an equivalent hold the Indemnitee harmless to the extent it reasonably demonstrates that its defense or greater performance, settlement of the claim or suit was adversely affected thereby; (b) modify the Product so that it will be free Indemnitor shall have sole control of the infringementdefense and of all negotiations for settlement of such claim or suit; provided, violation however, that the Indemnitor shall not settle any claim unless such settlement completely and forever releases the Indemnitee from all liability with respect to such claim or misappropriation provided that unless the Indemnitee consents to such modified Product complies with the Specifications settlement in writing (which consent shall not be unreasonably withheld); and all other applicable requirements, or (c) procure the Indemnitee shall cooperate with the Indemnitor in the defense or settlement of any such claim or suit; provided, however, that the Indemnitee shall be reimbursed for FEI all reasonable out-of-pocket expenses incurred in providing any cooperation requested by the right Indemnitor. Subject to continue to purchase and distribute and, for FEI and its customersclause (b) above, the right to (continue to) use Indemnitee may participate in the Product as contemplated by this Agreementdefense of any claim or suit in which the Indemnitee is involved at its own expense. 9.5 ETG shall have no obligation under Section 9.1or 9.4 to the extent technical claim of infringement, violation or misappropriation results from FEI IPR’s or compliance of the Product with Specifications furnished by FEI in writing, but only if the infringement, violation or misappropriation would not have occurred but for such compliance. 9.6 ETG agrees to indemnify and hold FEI and its Affiliates harmless from and against all direct liabilities, claims, fines, losses, damages, costs and expenses (including reasonable attorney’s fees), arising from, relating or in connection with (i) ETG’s or its officers, employees, subcontractors or agents’ failure to comply with the terms or other requirements of this Agreement or otherwise any acts or omissions to act arising from, related to or in connection with this Agreement by ETG, its employees, subcontractors or agents or (ii) any death, personal injury or loss or damage to property caused by the Products or the use thereof or by ETG, its officers, employees, subcontractors or agents, regardless of whether such damages were foreseeable or ETG was advised of the possibility of such damages up to a maximum of €2,500,000 per annum. 9.7 IN NO EVENT SHALL FEI OR ITS AFFILIATES OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE HEREUNDER FOR ANY ECONOMIC LOSSES OR DAMAGES, LOSS OF BUSINESS, PROFITS OR REVENUE, GOODWILL AND ANTICIPATED SAVINGS, LOSS OF CORRUPTION TO DATA OR LOSS OF OPERATION TIME OR ANY OTHER INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, PUNITIVE OR INCONSEQUENTIAL LOSS OR DAMAGE, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. THE DAMAGE LIMITATIONS SET OUT IN THIS PARAGRAPH SHALL NOT APPLY TO THE IPR OR CONFIDENTIALITY INDEMNIFICATION OBLIGATIONS OF THE PARTIES HEREUNDER. 9.8 IN NO EVENT SHALL ETG OR ITS AFFILIATES OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE HEREUNDER FOR ANY ECONOMIC LOSSES OR DAMAGES, LOSS OF BUSINESS, PROFITS OR REVENUE, GOODWILL AND ANTICIPATED SAVINGS, LOSS OF CORRUPTION TO DATA OR LOSS OF OPERATION TIME OR ANY OTHER INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, PUNITIVE OR INCONSEQUENTIAL LOSS OR DAMAGE, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. THE DAMAGE LIMITATIONS SET OUT IN THIS PARAGRAPH SHALL NOT APPLY TO THE IPR OR CONFIDENTIALITY INDEMNIFICATION OBLIGATIONS OF THE PARTIES HEREUNDER.

Indemnification Liability. 9.1 FEI shall indemnify and hold ETG harmless against all fines, losses, damages, costs and expenses, whether directly or indirectly arising from a claim brought by a third party claiming that the manufacture, sale or use of any Product developed or manufactured hereunder due to use of FEI IPR’s constitute(d) infringement of one or more of the patent rights or other IPR’s of such third party, together with the actual costs and expenses incurred by ETG in connection with such a claim by such third party and that ETG 8.1. Supplier will give FEI full authority todefend, at the option of FEIits own expense, either settle or defend such any claim, suit or proceeding brought by an unaffiliated third party (a “Claim”) against SunPower to the extent it is based upon an allegation that Supplier materially breached the terms of this DPA, and, provided SunPower complies with the provisions hereof and is not otherwise in material breach of any provision of this DPA, Supplier will pay all reasonable co-operation settlement amounts and assistance damages, costs and expenses finally awarded to third parties against SunPower in case FEI decides such action. 8.2. SunPower will defend, at its own expense, any Claim against Supplier to the extent it is based upon an allegation that SunPower materially breached the terms of this DPA, and provided Supplier complies with the provisions hereof and is not otherwise in material breach of any provision of this DPA, SunPower will pay all settlement amounts and damages, costs and expenses finally awarded to third parties against SunPower in such action. 8.3. The obligation of the indemnifying party (the “Indemnifying Party”) to defend such a claims, suit or proceeding and provided further that ETG will refrain from any activity that can jeopardise or harm the defence other party (the “Indemnified Party”) is conditioned upon the Indemnified Party promptly notify Indemnifying Party in writing of any such claim made by a third partyor action and giving the Indemnifying Party full information and assistance in connection therewith. FEI The Indemnifying Party shall have no liability for the sole right to control the defense and settlement of any such claim of infringement of IPR’s based on or action. The Indemnifying Party will not settle any Claim without the use of a combination written consent of the manufactureIndemnified Party; provided, sale however, that, after reasonable notice, the Indemnifying Party may settle a claim without the Indemnified Party’s consent if such settlement (A) makes no admission or use acknowledgment of liability or culpability with respect to the Indemnified Party, (B) includes a complete release of the Product with other materials Indemnified Party and (C) does not provided by FEI. FEI shall not, without seek any relief against the consent of ETG, enter into any settlement or agree to any disposition that imposes any conditions or obligations on ETG Indemnified Party other than the payment of monies that are readily measurable for purposes of determining money damages to be borne by the monetary indemnification or reimbursement obligations of FEI. 9.2 ETG shall indemnify Indemnifying Party. The Indemnified Party will cooperate in all reasonable respects with the Indemnifying Party and hold FEI harmless against all finesits attorneys in the investigation, losses, damages, costs trial and expenses, whether directly or indirectly arising from a claim brought by a third party claiming that the sale or use defense of any Product developed or manufactured hereunder due to use Claim and any appeal arising therefrom (including the filing in the Indemnified Party’s name of ETG IPR’s constitute(d) infringement of one or more of the patent rights or other IPR’s of such third party, together with the actual costs appropriate cross-claims and expenses incurred by FEI in connection with such a claim by such third party and that FEI will give ETG full authority to, at the option of ETG, either settle or defend such claim, suit or proceeding and all reasonable co-operation and assistance in case ETG decides to defend such a claims, suit or proceeding and provided further that FEI will refrain from any activity that can jeopardise or harm the defence of any such claim made by a third party. ETG shall not, without the consent of FEI, enter into any settlement or agree to any disposition that imposes any conditions or obligations on FEI other than the payment of monies that are readily measurable for purposes of determining the monetary indemnification or reimbursement obligations of ETG. 9.3 Both Parties agree that neither Party is aware of any such infringement set forth in 9.1 or 9.2 for Products currently developed or manufactured under this Agreementcounterclaims). The Parties shall inform each other at the earliest opportunity of any possible infringement in so far as they are aware or could reasonably be aware of such infringement. 9.4 In the event that a Product is held in any suit or proceeding, or in FEI’s reasonable opinion is likely, to infringe, violate or misappropriate a third party’s intellectual property right or other proprietary right, ETG willIndemnified Party may, at its option own cost, participate in any investigation, trial and expensedefense of any Claim controlled by the Indemnifying Party and any appeal arising therefrom, do one of including participating in the following: (a) replace process with respect to the Product, without additional charge, with a compatible, functionally equivalent and non-infringing product with an equivalent potential settlement or greater performance, (b) modify compromise thereof. Notwithstanding any other language in the Product so that it will be free of the infringement, violation MSA or misappropriation provided that such modified Product complies with the Specifications and all other applicable requirements, or (c) procure for FEI the right to continue to purchase and distribute and, for FEI and its customersDPA, the right to (continue to) use the Product as contemplated by this Agreement. 9.5 ETG shall Indemnifying Party will have no obligation liability under this Section 9.1or 9.4 8 for any Claim to the extent technical claim of infringement, violation or misappropriation results from FEI IPR’s or compliance arising as a result of the Product with Specifications furnished by FEI in writing, but only if Indemnified Party’s material breach of its obligations under the infringement, violation or misappropriation would not have occurred but for such compliance. 9.6 ETG agrees to indemnify and hold FEI and its Affiliates harmless from and against all direct liabilities, claims, fines, losses, damages, costs and expenses (including reasonable attorney’s fees), arising from, relating or in connection with (i) ETG’s or its officers, employees, subcontractors or agents’ failure to comply with the terms or other requirements of this Agreement or otherwise any acts or omissions to act arising from, related to or in connection with this Agreement by ETG, its employees, subcontractors or agents or (ii) any death, personal injury or loss or damage to property caused by the Products MSA or the use thereof or by ETG, its officers, employees, subcontractors or agents, regardless of whether such damages were foreseeable or ETG was advised of the possibility of such damages up to a maximum of €2,500,000 per annumDPA. 9.7 IN NO EVENT SHALL FEI OR ITS AFFILIATES OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE HEREUNDER FOR ANY ECONOMIC LOSSES OR DAMAGES, LOSS OF BUSINESS, PROFITS OR REVENUE, GOODWILL AND ANTICIPATED SAVINGS, LOSS OF CORRUPTION TO DATA OR LOSS OF OPERATION TIME OR ANY OTHER INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, PUNITIVE OR INCONSEQUENTIAL LOSS OR DAMAGE, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. THE DAMAGE LIMITATIONS SET OUT IN THIS PARAGRAPH SHALL NOT APPLY TO THE IPR OR CONFIDENTIALITY INDEMNIFICATION OBLIGATIONS OF THE PARTIES HEREUNDER. 9.8 IN NO EVENT SHALL ETG OR ITS AFFILIATES OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE HEREUNDER FOR ANY ECONOMIC LOSSES OR DAMAGES, LOSS OF BUSINESS, PROFITS OR REVENUE, GOODWILL AND ANTICIPATED SAVINGS, LOSS OF CORRUPTION TO DATA OR LOSS OF OPERATION TIME OR ANY OTHER INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, PUNITIVE OR INCONSEQUENTIAL LOSS OR DAMAGE, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. THE DAMAGE LIMITATIONS SET OUT IN THIS PARAGRAPH SHALL NOT APPLY TO THE IPR OR CONFIDENTIALITY INDEMNIFICATION OBLIGATIONS OF THE PARTIES HEREUNDER.

Indemnification Liability. 9.1 FEI shall indemnify (1) Licensor hereby covenants and hold ETG harmless against all fines, losses, damages, costs and expenses, whether directly or indirectly arising from a claim brought by a third party claiming that the manufacture, sale or use of any Product developed or manufactured hereunder due to use of FEI IPR’s constitute(d) infringement of one or more of the patent rights or other IPR’s of such third party, together with the actual costs and expenses incurred by ETG in connection with such a claim by such third party and that ETG will give FEI full authority to, at the option of FEI, either settle or defend such claim, suit or proceeding and all reasonable co-operation and assistance in case FEI decides to defend such a claims, suit or proceeding and provided further that ETG will refrain from any activity that can jeopardise or harm the defence of any such claim made by a third party. FEI shall have no liability for any claim of infringement of IPR’s based on the use of a combination of the manufacture, sale or use of the Product with other materials not provided by FEI. FEI shall not, without the consent of ETG, enter into any settlement or agree to any disposition that imposes any conditions or obligations on ETG other than the payment of monies that are readily measurable for purposes of determining the monetary indemnification or reimbursement obligations of FEI. 9.2 ETG shall indemnify and hold FEI harmless against all fines, losses, damages, costs and expenses, whether directly or indirectly arising from a claim brought by a third party claiming that the sale or use of any Product developed or manufactured hereunder due to use of ETG IPR’s constitute(d) infringement of one or more of the patent rights or other IPR’s of such third party, together with the actual costs and expenses incurred by FEI in connection with such a claim by such third party and that FEI will give ETG full authority to, at the option of ETG, either settle or defend such claim, suit or proceeding and all reasonable co-operation and assistance in case ETG decides to defend such a claims, suit or proceeding and provided further that FEI will refrain from any activity that can jeopardise or harm the defence of any such claim made by a third party. ETG shall not, without the consent of FEI, enter into any settlement or agree to any disposition that imposes any conditions or obligations on FEI other than the payment of monies that are readily measurable for purposes of determining the monetary indemnification or reimbursement obligations of ETG. 9.3 Both Parties agree that neither Party is aware of any such infringement set forth in 9.1 or 9.2 for Products currently developed or manufactured under this Agreement. The Parties shall inform each other at the earliest opportunity of any possible infringement in so far as they are aware or could reasonably be aware of such infringement. 9.4 In the event that a Product is held in any suit or proceeding, or in FEI’s reasonable opinion is likely, to infringe, violate or misappropriate a third party’s intellectual property right or other proprietary right, ETG will, at its option and expense, do one of the following: (a) replace the Product, without additional charge, with a compatible, functionally equivalent and non-infringing product with an equivalent or greater performance, (b) modify the Product so that it will be free of the infringement, violation or misappropriation provided that such modified Product complies with the Specifications and all other applicable requirements, or (c) procure for FEI the right to continue to purchase and distribute and, for FEI and its customers, the right to (continue to) use the Product as contemplated by this Agreement. 9.5 ETG shall have no obligation under Section 9.1or 9.4 to the extent technical claim of infringement, violation or misappropriation results from FEI IPR’s or compliance of the Product with Specifications furnished by FEI in writing, but only if the infringement, violation or misappropriation would not have occurred but for such compliance. 9.6 ETG agrees to indemnify and hold FEI harmless Licensee and its Approved Affiliates harmless and each of their respective directors, officers, employees, shareholders, attorneys and agents (collectively, the “Licensee Indemnified Parties” and individually a “Licensee Indemnified Party”) on demand, from and against all direct liabilitiesdamages, claims, finesactions, lossescomplaints, damageslosses (other than loss of profits), liabilities, costs and expenses (including reasonable attorney’s fees)legal fees and disbursements) to which any Licensee Indemnified Party may be subject or which any Licensee Indemnified Party may suffer or incur, caused by or arising fromfrom any suit, relating proceeding or in connection with dispute arising from Licensor breaching any of the terms or conditions of this Agreement, including without limitation its representations, warranties and covenants under Section 5. (i2) ETG’s or Licensee hereby covenants and agrees to indemnify and hold harmless Licensor and its Affiliates and each of their respective directors, officers, employees, subcontractors shareholders, attorneys and agents (collectively, the “Licensor Indemnified Parties” and individually, a “Licensor Indemnified Party”) on demand, from and against all damages, claims, actions, complaints, losses (other than loss of profits), liabilities, costs and expenses (including reasonable legal fees and disbursements) to which the Licensor Indemnified Parties or agents’ failure to comply with any Licensor Indemnified Party may be subject or which any Licensor Indemnified Party may suffer or incur, caused by or arising from any suit, proceeding or dispute arising from Licensee breaching any of the terms or other requirements conditions of this Agreement or otherwise Agreement, including without limitation its representations, warranties and covenants under Section 5. (3) With regard to any acts or omissions claim for indemnification hereunder: (i) The indemnified party shall promptly notify the indemnifying party in writing of any claim with regard to which it may seek indemnification hereunder. The indemnifying party shall have the sole right and authority to control and direct the investigation, preparation, defense and settlement of such claim, including but not limited to the selection of counsel, and the indemnified party shall give the indemnifying party full reasonable assistance and cooperation in such defense and settlement. The indemnified party may, however, at its sole option and at its own expense engage its own separate counsel to act arising fromas co-counsel on its behalf. Notwithstanding the foregoing, related the indemnifying party: (A) shall not be entitled to have sole control over any claim that seeks an order, injunction or in connection with this Agreement by ETGother equitable relief against the indemnified party; and (B) shall obtain the prior written approval of the indemnified party, its employeeswhich shall not be unreasonably withheld, subcontractors conditioned or agents delayed, before ceasing to defend against any claim or (ii) entering into any deathsettlement, personal injury adjustment or loss compromise of such claim involving injunctive or damage similar equitable relief being asserted against the indemnified party or any amount to property caused be paid by the Products or the use thereof or by ETG, its officers, employees, subcontractors or agents, regardless of whether such damages were foreseeable or ETG was advised of the possibility of such damages up to a maximum of €2,500,000 per annumindemnified party. 9.7 IN NO EVENT SHALL FEI OR ITS AFFILIATES OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE HEREUNDER FOR ANY ECONOMIC LOSSES OR DAMAGES, LOSS OF BUSINESS, PROFITS OR REVENUE, GOODWILL AND ANTICIPATED SAVINGS, LOSS OF CORRUPTION TO DATA OR LOSS OF OPERATION TIME OR ANY OTHER INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, PUNITIVE OR INCONSEQUENTIAL LOSS OR DAMAGE, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. THE DAMAGE LIMITATIONS SET OUT IN THIS PARAGRAPH SHALL NOT APPLY TO THE IPR OR CONFIDENTIALITY INDEMNIFICATION OBLIGATIONS OF THE PARTIES HEREUNDER. 9.8 IN NO EVENT SHALL ETG OR ITS AFFILIATES OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE HEREUNDER FOR ANY ECONOMIC LOSSES OR DAMAGES, LOSS OF BUSINESS, PROFITS OR REVENUE, GOODWILL AND ANTICIPATED SAVINGS, LOSS OF CORRUPTION TO DATA OR LOSS OF OPERATION TIME OR ANY OTHER INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, PUNITIVE OR INCONSEQUENTIAL LOSS OR DAMAGE, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. THE DAMAGE LIMITATIONS SET OUT IN THIS PARAGRAPH SHALL NOT APPLY TO THE IPR OR CONFIDENTIALITY INDEMNIFICATION OBLIGATIONS OF THE PARTIES HEREUNDER.

Indemnification Liability. 9.1 FEI (a) Pershing shall indemnify and hold ETG harmless One Group and each of its directors, officers, employees and agents from and against any and all finesdirect claims, demands, actions, losses, damages, costs liabilities, costs, charges and expenses of any nature ("Losses") that One Group may incur (including, without limitation, reasonable attorneys' fees and expenses) arising out of the non-performance of Pershing of its responsibilities under this Agreement, whether directly except to the extent any such losses are caused, or indirectly contributed to, by One Group. One Group shall indemnify and hold harmless Pershing and each of its directors, officers, employees and agents from any and all direct Losses that Pershing may incur (including, without limitation, reasonable attorneys' fees and expenses) arising from a out of (i) any claim brought relating to misrepresentation or omission in any prospectus or supplement thereto, SAI, registration statement, annual report, proxy statement or other documentation relating to the Fund, or in any advertising or related material or information provided or approved by a third One Group or any Fund, or (ii) the non-performance of One Group of its responsibilities under this Agreement, except to the extent such losses are caused, or contributed to, by Pershing. (b) Promptly, but in no event later than thirty days after the receipt by any party claiming that (the manufacture, sale or use "Indemnitee") of notice of any Product developed or manufactured hereunder due to use of FEI IPR’s constitute(d) infringement of one or more of the patent rights or other IPR’s of such third partyclaim, together with the actual costs and expenses incurred by ETG in connection with such a claim by such third party and that ETG will give FEI full authority to, at the option of FEI, either settle or defend such claimdetermination, suit or proceeding cause of action with respect to which the other party (the "Indemnifying Party") is obligated to provide indemnification pursuant to this Section 5, the Indemnitee shall give the Indemnifying Party written notice thereof and all reasonable co-operation and assistance in case FEI decides the Indemnifying Party shall be entitled to defend such a claims, suit or proceeding and provided further that ETG will refrain from any activity that can jeopardise or harm the defence of any such claim made by a third party. FEI shall have no liability for any claim of infringement of IPR’s based on the use of a combination assume control of the manufacturedefense and the negotiations, sale or use if any, regarding settlement of the Product with matter. If the Indemnifying Party assumes such control, the Indemnitee shall be entitled to participate in the defense and negotiations of such matter at its own expense. The parties agree to cooperate in such negotiations, defense or settlement and to give each other materials full access to any information relevant thereto. The Indemnitee shall not provided by FEI. FEI shall not, without the consent of ETG, enter into any settlement or agree to any disposition that imposes any conditions or obligations on ETG other than of such matter without the payment of monies that are readily measurable for purposes of determining the monetary indemnification or reimbursement obligations of FEI. 9.2 ETG shall indemnify and hold FEI harmless against all fines, losses, damages, costs and expenses, whether directly or indirectly arising from a claim brought by a third party claiming that the sale or use of any Product developed or manufactured hereunder due to use of ETG IPR’s constitute(d) infringement of one or more written consent of the patent rights Indemnifying Party, which consent shall not be unreasonably withheld or other IPR’s delayed, and the Indemnifying Party shall not be obligated to indemnify the Indemnitee for any settlement entered into without the written consent of such third party, together with the actual costs and expenses incurred by FEI in connection with such a claim by such third party and that FEI will give ETG full authority to, at the option of ETG, either settle or defend such claim, suit or proceeding and all reasonable co-operation and assistance in case ETG decides to defend such a claims, suit or proceeding and provided further that FEI will refrain from any activity that can jeopardise or harm the defence of any such claim made by a third partyIndemnifying Party. ETG shall not, without If the consent of FEI, enter into the Indemnitee is required to effectuate any settlement or agree and the Indemnitee refuses to consent to any disposition that imposes any conditions settlement negotiated by the Indemnifying Party, then the liability of the Indemnifying Party for losses arising out of or obligations on FEI other than due to such matter shall be limited to the payment amount of monies that are readily measurable for purposes of determining the monetary indemnification or reimbursement obligations of ETGrejected proposed settlement. 9.3 Both Parties agree that neither Party is aware of any such infringement set forth in 9.1 or 9.2 for Products currently developed or manufactured under this Agreement. The Parties shall inform each other at the earliest opportunity of any possible infringement in so far as they are aware or could reasonably be aware of such infringement. 9.4 In the event that a Product is held in any suit or proceeding, or in FEI’s reasonable opinion is likely, to infringe, violate or misappropriate a third party’s intellectual property right or other proprietary right, ETG will, at its option and expense, do one of the following: (a) replace the Product, without additional charge, with a compatible, functionally equivalent and non-infringing product with an equivalent or greater performance, (b) modify the Product so that it will be free of the infringement, violation or misappropriation provided that such modified Product complies with the Specifications and all other applicable requirements, or (c) procure for FEI Except in the right to continue to purchase and distribute andcase of its negligence or willful misconduct, for FEI and its customersor as provided in Item 12 on Schedule B, the right to (continue to) use the Product as contemplated by this Agreement. 9.5 ETG shall have no obligation under Section 9.1or 9.4 Pershing's liability hereunder is limited to the extent technical claim of infringement, violation or misappropriation results amounts paid hereunder to Pershing by One Group as Service Fees during the 12 month period immediately prior to the event for which recovery from FEI IPR’s or compliance of the Product with Specifications furnished by FEI in writing, but only if the infringement, violation or misappropriation would not have occurred but for such compliance. 9.6 ETG agrees to indemnify and hold FEI and its Affiliates harmless from and against all direct liabilities, claims, fines, losses, damages, costs and expenses (including reasonable attorney’s fees), arising from, relating or in connection with (i) ETG’s or its officers, employees, subcontractors or agents’ failure to comply with the terms or other requirements of this Agreement or otherwise any acts or omissions to act arising from, related to or in connection with this Agreement by ETG, its employees, subcontractors or agents or (ii) any death, personal injury or loss or damage to property caused by the Products or the use thereof or by ETG, its officers, employees, subcontractors or agents, regardless of whether such damages were foreseeable or ETG was advised of the possibility of such damages up to a maximum of €2,500,000 per annum. 9.7 Pershing is being sought. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL FEI OR ITS AFFILIATES OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS EITHER PARTY UNDER THIS AGREEEMNT BE LIABLE HEREUNDER TO ANY PERSON, INCLUDING WITHOUT LIMITATION THE OTHER PARTY, FOR PUNITIVE, CONSEQUENTIAL, INDIRECT OR OTHER SPECIAL DAMAGES UNDER ANY PROVISION OF THIS AGREEMENT OR FOR ANY ECONOMIC LOSSES ACT; OR DAMAGES, LOSS OF BUSINESS, PROFITS OR REVENUE, GOODWILL AND ANTICIPATED SAVINGS, LOSS OF CORRUPTION FAILURE TO DATA OR LOSS OF OPERATION TIME OR ANY OTHER INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, PUNITIVE OR INCONSEQUENTIAL LOSS OR DAMAGEACT HEREUNDER, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. THE DAMAGE LIMITATIONS SET OUT IN THIS PARAGRAPH SHALL NOT APPLY TO THE IPR OR CONFIDENTIALITY INDEMNIFICATION OBLIGATIONS OF THE PARTIES HEREUNDERTHEREOF. 9.8 IN NO EVENT SHALL ETG OR ITS AFFILIATES OR ITS OR THEIR OFFICERS(d) Neither party shall be in default by reason of any failure in performance of this Agreement in accordance with its terms (other than a required payment of money -- unless the banking system is closed) if such failure arises out of causes beyond the control and without the fault or negligence of such party. Such causes may include, DIRECTORSbut are not restricted to, EMPLOYEES OR AGENTS BE LIABLE HEREUNDER FOR ANY ECONOMIC LOSSES OR DAMAGESacts of God or of a public enemy, LOSS OF BUSINESSwar, PROFITS OR REVENUEterrorism, GOODWILL AND ANTICIPATED SAVINGSacts of the government in either its sovereign or contractual capacity, LOSS OF CORRUPTION TO DATA OR LOSS OF OPERATION TIME OR ANY OTHER INDIRECTfires, EXEMPLARYfloods, SPECIALepidemics, INCIDENTALquarantine restrictions, PUNITIVE OR INCONSEQUENTIAL LOSS OR DAMAGEstrikes, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. THE DAMAGE LIMITATIONS SET OUT IN THIS PARAGRAPH SHALL NOT APPLY TO THE IPR OR CONFIDENTIALITY INDEMNIFICATION OBLIGATIONS OF THE PARTIES HEREUNDERwork stoppages, freight embargoes, failures or shortages of equipment, utilities or communications, and unusually severe weather. (e) The provisions of this Section 5 shall survive the termination of this Agreement.