Common use of Standard of Liability Indemnification Clause in Contracts

Standard of Liability Indemnification. (a) Each Licensee agrees to indemnify, defend and hold the Licensor and its successors, assigns, officers, directors, employees and agents harmless from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel), joint or several (collectively, “License Damages”), directly or indirectly resulting from or arising out of (i) the failure of such Licensee to perform its duties in accordance with the terms of this Agreement, (ii) the material breach of any of such Licensee’s representations, warranties, covenants or agreements contained in this Agreement including, but not limited to, confidentiality provisions, (iii) the infringement or misappropriation by such Licensee of any patent, copyright, trademark, servicemark, trade secret or other proprietary right of Licensor, (iv) the violation of any federal, state and local legal and regulatory requirements (including statutes, rules, regulations and ordinances) binding on such Licensee, (v) the inappropriate use of the Prosper System by such Licensee, (vi) the misuse, neglect, or lack of maintenance of the Prosper System by such Licensee, (vii) the addition, introduction or use of hardware or software that corrupts, damages, negatively interferes or otherwise negatively affect the Prosper System by such Licensee; provided, however, that such Licensee shall not be responsible for any License Damages resulting from or arising out of (i) the failure of the Licensor to perform its duties in accordance with the terms of this Agreement (unless such failure resulted from the actions or omissions of such Licensee), or (ii) the material breach of any of the Licensor’s representations, warranties, covenants or agreements contained in this Agreement. (b) Except as otherwise expressly provided herein, each Licensee shall not be under any obligation to appear in, prosecute or defend any legal action that does not relate to its duties in relation to the foregoing License of the Prosper System in accordance with this Agreement and which in its opinion may involve it in any expense or liability; provided, however, that any Licensee may, with the consent of the Licensor, which consent may be exercised by the Licensor in its sole and exclusive discretion, undertake any such action that it may deem necessary or desirable in respect of this Agreement and the rights and duties of the parties hereto. In such event, or if a Licensee deems it necessary to defend any such action, such Licensee shall be entitled to reimbursement from the Licensor for its reasonable legal expenses and costs of such action. (c) Promptly upon receipt of notice of any claim, demand or assessment or the commencement of any suit, demand, action or proceeding in respect of which indemnity may be sought pursuant to Section 2.4, the Licensor will use its best efforts to notify the applicable Licensee in writing thereof in sufficient time for such Licensee to respond to such claim or answer or otherwise plead in such action. Except to the extent that the applicable Licensee is prejudiced thereby, the omission of the Licensor to promptly notify such Licensee of any such claim or action shall not relieve such Licensee from any liability which it may have to the Licensor in connection therewith. If any claim, demand or assessment shall be asserted or suit, action or proceeding commenced against the Licensor, the applicable Licensee will be entitled to participate therein, and to the extent it may wish to assume the defense, conduct or settlement thereof, with counsel reasonably satisfactory to the Licensor. After notice from the applicable Licensee to the Licensor of its election to assume the defense, conduct, or settlement thereof, such Licensee will not be liable to the Licensor for any legal or other expenses consequently incurred by the Licensor in connection with the defense, conduct or settlement thereof. The Licensor will cooperate with the applicable Licensee in connection with any such claim and make its personnel, books and records relevant to the claim available to such Licensee. In the event the applicable Licensee does not wish to assume the defense, conduct or settlement of any claim, demand or assessment, the Licensor will not settle such claim, demand or assessment without the prior written consent of such Licensee, which consent shall not be unreasonably withheld.

Standard of Liability Indemnification. (a) Each Licensee PMI agrees to indemnify, defend and hold the Licensor Prosper Funding and its successors, assigns, officers, directors, employees and agents harmless from and against any and all claims, damages, losses, liabilities liabilities, obligations, deficiencies, taxes, assessments, fines, judgments, costs and expenses (including, without limitation, reasonable fees and disbursements of counsel), joint or several (collectively, “License DamagesLosses”), directly or indirectly resulting from or arising out of (i) the failure of such Licensee PMI to perform its duties in accordance with the terms of this Agreement, (ii) the material breach of any of such LicenseePMI’s representations, warranties, covenants or agreements contained in this Agreement including, but not limited to, confidentiality provisionsAgreement, (iii) the infringement or misappropriation by such Licensee PMI of any patentPatent, copyrightCopyright, trademarkTrademark, servicemark, trade secret Trade Secret or other proprietary right of LicensorProsper Funding, (iv) the violation of any federal, state and local legal and regulatory requirements (including statutes, rules, regulations and ordinances) binding on such LicenseePMI, (v) the inappropriate use of the Prosper System Card IP or Prosper White Label IP by such LicenseePMI, (vi) the misuse, neglect, or lack of maintenance of the Prosper System Card IP or Prosper White Label IP by such LicenseePMI, or (vii) the addition, introduction or use of hardware or software that corrupts, damages, negatively interferes or otherwise negatively affect the Prosper System Card IP or Prosper White Label IP by such LicenseePMI; provided, however, that such Licensee PMI shall not be responsible for any License Damages Losses resulting from or arising out of (iA) the failure of the Licensor Prosper Funding to perform its duties in accordance with the terms of this Agreement (unless such failure resulted from the actions or omissions of such LicenseePMI), or (iiB) the material breach of any of the LicensorProsper Funding’s representations, warranties, covenants or agreements contained in this Agreement. (b) Except as otherwise expressly provided herein, each Licensee PMI shall not be under any obligation by this Agreement to appear in, prosecute or defend any legal action that does not relate to its duties in relation to the foregoing License of the Prosper System Card IP or White Label IP in accordance with this Agreement and which in its opinion may involve it in any expense or liability; provided, however, that any Licensee PMI may, with the consent of the LicensorProsper Funding, which consent may be exercised by the Licensor Prosper Funding in its sole and exclusive discretion, undertake any such action that it may deem necessary or desirable in respect of this Agreement and the rights and duties of the parties hereto. In such event, or if a Licensee PMI deems it necessary to defend any such action, such Licensee PMI shall be entitled to reimbursement from the Licensor Prosper Funding for its reasonable legal expenses and costs of such action. (c) Promptly upon receipt of notice of any claim, demand or assessment or the commencement of any suit, demand, action or proceeding in respect of which indemnity may be sought pursuant to this Section 2.46, the Licensor Prosper Funding will use its best efforts to notify the applicable Licensee PMI in writing thereof in sufficient time for such Licensee PMI to respond to such claim or answer or otherwise plead in such action. Except to the extent that the applicable Licensee PMI is prejudiced thereby, the omission of the Licensor Prosper Funding to promptly notify such Licensee PMI of any such claim or action shall not relieve such Licensee PMI from any liability which it may have to the Licensor Prosper Funding in connection therewith. If any claim, demand or assessment shall be asserted or suit, action or proceeding commenced against the LicensorProsper Funding, the applicable Licensee PMI will be entitled to participate therein, and to the extent it may wish to assume the defense, conduct or settlement thereof, with counsel reasonably satisfactory to the LicensorProsper Funding. After notice from the applicable Licensee PMI to the Licensor Prosper Funding of its election to assume the defense, conduct, or settlement thereof, such Licensee PMI will not be liable to the Licensor Prosper Funding for any legal or other expenses consequently incurred by the Licensor Prosper Funding in connection with the defense, conduct or settlement thereof. The Licensor Prosper Funding will cooperate with the applicable Licensee PMI in connection with any such claim and make its personnel, books and records relevant to the claim available to such LicenseePMI. In the event the applicable Licensee PMI does not wish to assume the defense, conduct or settlement of any claim, demand or assessment, the Licensor Prosper Funding will not settle such claim, demand or assessment without the prior written consent of such LicenseePMI, which consent shall not be unreasonably withheld.