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V. The Services will not cause to have introduced into
<br />Client's information systems and networks any self -replicating
<br />or non -self -replicating computer codes, commands, routines or
<br />like data or entries that perform an undesired activity ("Virus").
<br />C. No Other Warranties. EXCEPT AS OTHERWISE
<br />EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL SERVICES
<br />AND DELIVERABLES PROVIDED BY PROVIDER ARE PROVIDED
<br />"AS IS" AND PROVIDER (1) DISCLAIMS ALL OTHER
<br />WARRANTIES EXPRESS OR IMPLIED, INCLUDING ANY
<br />WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
<br />PARTICULAR PURPOSE, AND (2) DOES NOT GUARANTEE THAT
<br />CLIENT'S NETWORK, COMPUTER SYSTEMS, OR ANY PORTIONS
<br />THEREOF ARE SECURE. CLIENT ACKNOWLEDGES THAT
<br />IMPENETRABLE SECURITY CANNOT BE ATTAINED IN REAL -
<br />WORLD ENVIRONMENTS AND THAT PROVIDER DOES NOT
<br />GUARANTEE PROTECTION AGAINST BREACHES OF SECURITY.
<br />d. No Guarantee of Meeting Client's Needs. Provider has
<br />no way of determining Client's perceived needs, and therefore
<br />does not warrant that the Services will meet Client's needs.
<br />C. No Warranties to Third Parties. Neither Provider nor
<br />Client will make any warranties on behalf of the other to any
<br />third party, without the prior written consent of the other Party.
<br />(7) Indemnification.
<br />a. Mutual Indemnification. Each Party to this Agreement
<br />and its "Related Parties" as defined below ("Indemnitor") will
<br />indemnify, defend and hold harmless the other Party
<br />("Indemnitee") and its Related Parties from and against any
<br />"Loss" (defined below) asserted against or incurred by any of
<br />them, directly or indirectly, by reason of, arising out of or
<br />resulting from Indemnitor's:
<br />i. failure to comply with any legal requirement
<br />pertaining to this Agreement or the Services provided under it;
<br />ii. criminal, fraudulent, intentionally wrongful or
<br />grossly negligent act or omission arising out of or resulting from
<br />the performance of its obligations under this Agreement;
<br />iii. infringement, violation or misappropriation of
<br />Indemnitee's "Intellectual Property Rights" (defined below)
<br />arising out of or resulting from the performance of its
<br />obligations under this Agreement; or
<br />iv. breach of any covenant or obligation contained in
<br />Section 11 (Confidential Information) of this Agreement.
<br />As used in this Agreement, "Loss" means any demand, claim,
<br />suit, proceeding, action, loss, damage, judgment, award,
<br />settlement, cost, expense or liability, including without
<br />limitation, interest, defense costs, costs of investigation, court
<br />costs, reasonable attorneys' fees and expenses, penalties and
<br />fines.
<br />As used in this Agreement, "Related Party" means any parent,
<br />subsidiary or affiliated company, and the present and former
<br />directors, officers, members, customers, shareholders,
<br />employees, agents, and representatives of any of these, and their
<br />successors, heirs and assigns.
<br />As used in this Agreement, "Intellectual Property Rights" will
<br />mean and include: (i) all trademark rights, business identifiers,
<br />trade dress, service marks, trade names and brand names, all
<br />registrations thereof and applications therefor and all goodwill
<br />associated with the foregoing; (ii) all copyrights, copyright
<br />registrations and copyright applications, and all other rights
<br />associated with the foregoing and the underlying works of
<br />authorship; (iii) all patents and patent applications, and all
<br />international proprietary rights associated therewith; (iv) all
<br />contracts or agreements granting any right, title, license or
<br />privilege under the intellectual property rights of any third party;
<br />and (v) all inventions, mask works and mask work registrations,
<br />know-how, discoveries, improvements, designs, trade secrets,
<br />shop and royalty rights, employee covenants and agreements
<br />respecting intellectual property and non -competition and all
<br />other types of intellectual property.
<br />b. Additional Indemnification by Client.kpc,_V; gl?; ue lyi
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<br />I'Ira vida;r a da cribed in Sec'don T.a hgr 1 Client agrees to
<br />indemnify, defend and hold harmless Provider and any of its
<br />Related Parties from and against any Loss asserted against or
<br />incurred by any of them arising out of or resulting from the
<br />performance of the Services by Provider in accordance with the
<br />terns of this Agreement, including any claims brought against
<br />Provider and/or its Related Parties as a result of any damage
<br />caused or allegedly caused to Client's computer systems or data
<br />as a result of the performance of the Services by Provider in
<br />accordance with the terms of this Agreement. Notwithstanding
<br />any provision of this Section 7.b to the contrary, Provider
<br />remains obligated to indemnify Client and its Related Parties
<br />from and against Losses pursuant to Section 7.a of this
<br />Agreement.
<br />C. Procedure for Indemnification.
<br />i. Notice and Defense of Third Party Claims. The
<br />Indemnitee will give the Indemnitor prompt written notice of
<br />any third -party claim. The Indemnitor will undertake the
<br />defense thereof, and will be free to choose its own counsel.
<br />Failure to give the notice will not affect the Indemnitor's duties
<br />or obligations under this Section, except to the extent the
<br />Indemnitor is prejudiced thereby. So long as the Indemnitor is
<br />defending any claim actively and in good faith, the Indemnitee
<br />will not settle the claim. The Indemnitee will make available to
<br />the Indemnitor or its representatives all records and other
<br />materials required by them in the possession or under the control
<br />of the Indemnitee, for Indemnitor's use in defending any claim,
<br />and will in other respects give reasonable cooperation in the
<br />defense. If the Indemnitor, within a reasonable time after notice
<br />of any third party claim, fails to defend the claim actively and in
<br />good faith, the Indemnitee will (upon further notice) have the
<br />right to undertake the defense, compromise or settlement of the
<br />claim or consent to the entry of a judgment with respect to the
<br />claim, on behalf of and for the account and risk of the
<br />Indemnitor, and the Indemnitor will thereafter have no right to
<br />challenge the Inderrnitee's defense, compromise, settlement or
<br />consent to judgment.
<br />ii. Other Claims. A claim for indemnification for any
<br />matter not involving a third -party claim may be asserted by
<br />notice to the Party from whom indemnification is sought.
<br />d. Survival of Obligations; Payment. The indemnification
<br />obligations set forth herein will survive any termination of this
<br />Agreement. The Indemnitor will promptly pay the Indemnitee any
<br />amount due under this Section, which payment may be
<br />accomplished in whole or in part, at the option of the Indemnitee,
<br />by the Indemnitee setting off any amount owed to the Indemnitor
<br />by the Indemnitee.
<br />(8) Limitation of Liability.
<br />a. Scope of Indemnification Obligations.
<br />i. Unlimited. The obligation of either Party to
<br />indemnify the other Party and its Related Parties from and
<br />against Losses pursuant to the provisions of Section Ta of this
<br />Agreement will be without limitation as to amount.
<br />U. Multiple of Amounts Paid (Two Times). The
<br />obligation of Client to indemnify Provider and its Related Parties
<br />from and against Losses pursuant to the provisions of Section
<br />7.b of this Agreement, will be limited to a maximum aggregate
<br />amount equal to the product of the sum of all amounts paid or to
<br />be paid pursuant to this Agreement by Client to Provider at any
<br />time during the Term, multiplied by two (2).
<br />12 -Il- `9
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