PMC » Topics » 6. INDEMNIFICATION

These excerpts taken from the PMC 10-Q filed Nov 9, 2007.

6. INDEMNIFICATION

Each party (“Indemnifying Party”) will indemnify and defend the other, its employees and representatives (“Indemnified Party”) against all claims and damages (including expenses and attorneys’ fees) (“Claim”) to the extent arising out of Indemnifying Party’s obligations under this Agreement. Failure to give prompt written notice of a Claim will not relieve Indemnifying Party of liability except to the extent caused by such failure. Indemnifying Party will defend a Claim with counsel reasonably satisfactory to Indemnified Party and Indemnified Party will cooperate fully in such defense.

24. Indemnification

24.1. By Customer. Customer shall indemnify and hold harmless Service Provider, its Affiliates and its and their respective officers, directors, employees, managers, partners or agents against and from any and all damage, loss, liability and expense (including reasonable expenses of investigation and reasonable attorneys’ fees and expenses in connection with any action, suit or proceeding whether involving a third party claim or a claim solely between the parties) (“Damages”) actually incurred or suffered by Service Provider arising out of or in connection with any breach of the Agreement by Customer, except for such Damages caused by the gross negligence or willful misconduct of Service Provider or its affiliates or its or their respective officers, directors, employees, managers, partners or agents.

24.2. By Service Provider. Service Provider shall indemnify and hold harmless Customer, its Affiliates and its and their respective officers, directors, employees, managers, partners or agents against and from any Damages actually incurred or suffered by Customer arising out of or in connection with any breach of the Agreement by Service Provider, except for such Damages caused by the gross negligence or willful misconduct of Customer or its affiliates or its or their respective officers, directors, employees, managers, partners or agents.

24.3. Breach of Data Security. In addition to the indemnification obligations set forth in Sections 24.1 and 24.2 above, the parties hereby agree as follows:

(a) Customer shall indemnify, defend and hold harmless Service Provider, its Affiliates and its and their respective officers, directors, employees, managers, partners or agents against and from any Damages actually incurred or suffered by Service Provider arising out of or in connection with Customer’s use of Customer Data and/or Customer’s breach of its obligations under Section 11 of this Agreement, except for such Damages caused by the gross negligence or willful misconduct of Service Provider or its affiliates or its or their respective officers, directors, employees, managers, partners or agents. Such Damages may include, without limitation, (i) the actual verifiable cost, if any, of notification of all persons affected by such breach of Section 11; and (ii) the actual verifiable cost, if any, to mitigate the effect of any such breach of Section 11.

(b) Service Provider shall indemnify, defend and hold harmless Customer, its Affiliates and its and their respective officers, directors, employees, managers, partners or agents against and from any Damages actually incurred or suffered by Customer arising out of or in connection with Service Provider’s use of Customer Data and/or Service Provider’s breach of

 

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its obligations under Section 11 of this Agreement, except for such Damages caused by the gross negligence or willful misconduct of Customer or its affiliates or its or their respective officers, directors, employees, managers, partners or agents. Such Damages shall include, without limitation, (i) the actual verifiable cost, if any, of notification of all persons affected by such breach of Section 11; and (ii) the actual verifiable cost, if any, to mitigate the effect of any such breach of Section 11.

24.4. Procedures. A party seeking indemnification under the Agreement (the “Indemnified Party”) shall give prompt notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (each, a “Claim”) in respect of which indemnity may be sought under and will provide the Indemnifying Party such information and documents with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations, except to the extent such failure shall have actually materially prejudiced the Indemnifying Party.

The Indemnifying Party shall have the right, at its option, exercisable within 30 days after receipt of such notice to assume the defense of, at its own expense and by its own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any matter involving the asserted liability of the Indemnified Party (“Asserted Liabilities”), subject to the limitations set forth herein. If the Indemnifying Party intends to compromise, settle or defend any such Asserted Liability, it shall promptly notify the Indemnified Party of its intention to do so, and the Indemnified Party agrees to cooperate fully with the Indemnifying Party and its counsel in the compromise or settlement of, or defense against, any such Asserted Liability; provided, however, that the Indemnifying Party shall not settle any such Asserted Liability without the written consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all liabilities and obligations with respect to the Asserted Liability, (ii) does not contain a stipulation to, or an admission or acknowledgement of, any wrongdoing (whether in tort or otherwise) on the part of the Indemnified Party, and (iii) does not impose a restriction on Indemnified Party’s business or an injunctive or other equitable relief against the Indemnified Party. Notwithstanding an election by the Indemnifying Party to assume the defense of such action or proceeding, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such action or proceeding at its own expense. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not be entitled to assume control of such defense but shall pay for the reasonable fees, costs and expenses of the Indemnified Party’s legal counsel, which counsel shall be reasonably satisfactory to the Indemnifying Party, if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (ii) the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party, on the one hand, and the Indemnified Party, on the other hand, or (iii) the Indemnifying Party failed or is failing to prosecute or defend such claim. If the Indemnified Party intends to compromise, settle or defend any Asserted Liability in accordance with the immediately preceding sentence or after the Indemnifying Party has declined to exercise its option to assume the defense of an Asserted Liability, the Indemnified Party shall promptly notify the Indemnifying Party of its intention to do so, and the Indemnifying Party agrees to cooperate fully with the Indemnified Party and its counsel in the compromise or settlement of, or defense against, any such Asserted Liability; provided, however, that the Indemnified Party shall

 

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not settle any such Asserted Liability without the written consent of the Indemnifying Party, which such consent shall not be unreasonably withheld.

Each party shall cooperate, and cause their respective affiliates to cooperate, in the defense or prosecution of any Claim by a third party and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.

EXCERPTS ON THIS PAGE:

10-Q (2 sections)
Nov 9, 2007
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