- General Indemnification. Subject to the terms of this Article 22, the Service Provider agrees to indemnify, defend, and hold harmless Subscriber and its officers, directors, agents, and employees (each, an “Indemnitee”) from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines, or judgments (each, a “Claim” and collectively, the “Claims”), including reasonable legal counsel fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any Claim arising out of or relating to any act, error or omission, negligence, or misconduct of Service Provider, its officers, directors, agents, employees, and subcontractors, during the performance of this Agreement, including, without limitation, Claims arising out of or relating to: (i) bodily injury (including death) or damage to tangible personal or real property; (ii) any payment required to be paid to subcontractors, if any, of Service Provider; (iii) any material misrepresentation or breach of warranty of any representation or warranty set forth in this Agreement; or, (iv) any material uncured breach of any covenant set forth in this Agreement; provided, however, that the foregoing indemnity shall not apply unless the conditions in subsection 4 (below) are satisfied in full.
- Proprietary Rights and Indemnification. Subject to the terms of this Article 22, Service Provider agrees to indemnify, defend, and hold harmless Indemnitees from and against any and all Claims, including reasonable legal counsel fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any Claim arising out of or relating to the Services infringing or misappropriating any Canadian or foreign patent, copyright, trade secret, trademark, or other proprietary right. In the event that Service Provider is enjoined from providing the Services and such injunction is not dissolved within thirty (30) calendar days, or in the event that Subscriber is adjudged, in any final order of a court of competent jurisdiction from which no appeal is taken, to have infringed upon or misappropriated any patent, copyright, trade secret, trademark, or other proprietary right in the access or use of the Services, then Service Provider shall, at its expense: (i) obtain for Subscriber the right to continue using such Services; (ii) replace or modify such Services so that they do not infringe upon or misappropriate such proprietary right and is free to be used by Subscriber; or, (iii) in the event that Service Provider is unable or determines, in its sole discretion, that it is commercially unreasonable to do either of the aforementioned, Service Provider shall reimburse to Subscriber any prepaid fees and terminate this Agreement. Subscriber acknowledges and agrees that the foregoing represents its sole and exclusive remedy with respect to any and all such indemnified Claims.
- Indemnification Procedures. Promptly after receipt by Subscriber of a threat, notice, or filing of any Claim against an Indemnitee, Subscriber shall give notice thereof to Service Provider, provided that failure to give or delay in giving such notice shall not relieve Service Provider of any liability it may have to the Indemnitee except to the extent that Service Provider demonstrates that the defense of the Claim is prejudiced thereby. Service Provider shall have sole control of the defense and of all negotiations for settlement of a Claim and Subscriber shall not independently defend or respond to a Claim; provided, however, that: (i) Subscriber may defend or respond to a Claim, at Subscriber’s own expense, if Subscriber’s counsel determines, in its sole discretion, that such defense or response is necessary to preclude a default judgment from being entered against an Indemnitee; and, (ii) Subscriber shall have the right, at its own expense, to monitor Service Provider’s defense of a Claim. At Service Provider’s request, Subscriber shall reasonably cooperate with Service Provider in defending against or settling a Claim.
- Exceptions & Conditions to Indemnification. The Service Provider’s obligations under this Article are subject to the following exceptions and conditions:
Service Provider will have no obligation under this Article or otherwise to the extent that the applicable Claim resulted from the acts or omissions of an Indemnitee, or with respect to any infringement or misappropriation Claim to the extent based upon (a) any use of Services in combination with Third Party Products, not supplied by Service Provider where the infringement would not have occurred but for such combination, or (b) any modification of the Services which was not made by Service Provider.
Service Provider will have no obligation under this Article or otherwise if any Indemnitee: (a) does not notify Service Provider immediately upon receipt of any Claim; (b) makes any admission of liability or agrees to any settlement or compromise of the relevant Claim without the prior written consent of Service Provider; (c) does not permit Service Provider to have the conduct of or settle all negotiations and litigation arising from any such Claim; or (d) does not, at Service Provider’s request, provide the Service Provider with all reasonable cooperation.
NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, AND / OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE FOREGOING EXCULPATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO DAMAGES INCURRED AS A RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY. A PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LIABILITY OF A PARTY, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT, AND PROVIDED, FURTHER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO: (A) DAMAGES CAUSED BY A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR, (B) A PARTY’S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY, AS FURTHER DESCRIBED IN THIS AGREEMENT.
This Section shall survive the termination of this Agreement.