(a) Client Indemnity.
Client shall indemnify, defend, and hold harmless ‘Antedea Corporation OÜ’, its parents, subsidiaries, and affiliated companies, and its and their respective employees, officers, directors, shareholders, and agents (each an “‘Antedea Corporation OÜ’ Indemnitee”) from and against any and all Loss incurred by an ‘Antedea Corporation OÜ’ indemnity based upon or arising out of any third-party claim, allegation, demand, suit, or proceeding (each, a “Claim”) made or brought against any ‘Antedea Corporation OÜ’ Indemnity with respect to any advertising, branding, research or other products or services which ‘Antedea Corporation OÜ’ prepared or performed for Client hereunder to the extent that such Claim relates, in whole or substantial part, to:
- The inaccuracy of any information supplied by Client or its agents to ‘Antedea Corporation OÜ’ including, without limitation, information concerning Client products and services, the products or services of Client competitors Client product or service category;
- The use of any marketing, branding, research, advertising, packaging, trademark, developments or other materials, or components thereof, furnished by Client or its agents to ‘Antedea Corporation OÜ’ to be included in any Materials or media placements;
- The use of any materials or data provided or created by ‘Antedea Corporation OÜ’ and changed by Client or its agents or used in a manner different from that agreed by the parties;
- Risks or restrictions known by Client where Client nonetheless elected to proceed;
- Death, personal injury, or product liability (including health and safety) claims or actions arising from the use Client products and services;
- The unauthorized or improper use of Materials or the Marks by Client, Client designees, licensees, distributors, franchisees or Client Affiliates;
- Claims brought Client employees for employment discrimination, other employment or labor disputes, breach of contract, personal injury or other civil law matters, or claims brought by those parties with whom Client has a contractual or supplier relationship;
- Allegations of patent, trademark or trade dress infringement or any other violation of a patent, trademark or trade dress right;
- Any material breach of the terms of this Agreement by, or any act of omission of, Client or its agents or employees relating to media commitments made by ‘Antedea Corporation OÜ’ pursuant to Client approval as provided for herein; and
- The negligence, gross negligence, bad faith, or intentional or wilful misconduct of Client or its employees, agents or Client Affiliates.
(b) ‘Antedea Corporation OÜ’ Indemnity. Excluding claims covered by Section 11(a), ‘Antedea Corporation OÜ’ shall indemnify, defend, and hold harmless Client, the Client Affiliates, and their respective employees, members, managers, officers, directors, shareholders, and agents (each a “Client Indemnitee”) from and against any and all Loss incurred by a Client Indemnitee based upon or arising out of any Claim made or brought against Client arising out of the production or dissemination of materials produced hereunder that involve (i) libel, slander, defamation, copyright infringement, right of publicity and/or invasion of right of privacy arising out of work created by ‘Antedea Corporation OÜ’ and in final form (i.e., ready to be disseminated to the public); or (ii) damage to or destruction of personal property, injury to or death of any person directly attributable to or arising out of ‘Antedea Corporation OÜ’’s negligence or wilful misconduct in connection with the performance of the Services hereunder.
(c) Third Party Investigations of Client. In addition, Client shall reimburse ‘Antedea Corporation OÜ’ for all costs and expenses (including reasonable attorneys’ fees and costs) incurred by ‘Antedea Corporation OÜ’ resulting from any third-party investigation of the acts or practices of Client including, without limitation, any costs or expenses related to compliance with any third party subpoena or other discovery request. Should ‘Antedea Corporation OÜ’ be served with a third party subpoena in connection with Services it performed for Client, ‘Antedea Corporation OÜ’ shall promptly advise Client and consult with Client regarding ‘Antedea Corporation OÜ’’s response to the subpoena to the extent the subpoena seeks Client data, documents, or information pertaining Client so that Client may have an opportunity to seek appropriate relief.
(d) Notification of Claims. A party entitled to be indemnified pursuant to this Section 12 (the “Indemnified Party”) shall provide prompt written notice to the party liable for such indemnification (the “Indemnifying Party”) of any claim or demand which the Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement. The Indemnifying Party shall promptly undertake to discharge its obligations hereunder. Additionally, the Indemnifying Party shall employ counsel reasonably acceptable to the Indemnified Party to defend any such claim or demand asserted against the Indemnified Party. The Indemnified Party shall have the right to participate in the defence of any such claim or demand at its own expense. The Indemnified Party shall cooperate with the Indemnifying Party in any such defence. In addition, the Indemnified Party shall at all times have the right to fully participate in any settlement which it reasonably believes would have an adverse effect on its business, but the Indemnified Party shall not make any settlement of any Claims that might give rise to liability of the Indemnifying Party without the prior written consent of the Indemnifying Party. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party’s possession reasonably required by it for its use in contesting any third party claim or demand.
(e) LIMITATION OF LIABILITY. EXCLUDING INDEMNIFICATION OBLIGATIONS OR DAMAGES ARISING FROM BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOST PROFITS (excluding direct damages for ‘Antedea Corporation OÜ’’s anticipated fees), BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY, NOR SHALL ‘ANTEDEA CORPORATION OÜ’’S AGGREGATE LIABILITY FOR ANY OTHER DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE REVENUE PAID BY CLIENT TO ‘ANTEDEA CORPORATION OÜ’ IN ACCORDANCE WITH THE APPLICABLE SOW.