|
attorneys', accountants' and expert witnesses' fees) of whatever kind and nature
<br /> (collectively, "Losses "), which may be imposed on or incurred by any Customer
<br /> Party arising out of or related to (a) any material misrepresentation, inaccuracy or
<br /> breach of any covenant, warranty or representation of Redflex contained in this
<br /> Agreement, or (b) the willful misconduct of Redflex, its employees or agents
<br /> which result in death or bodily injury to any natural person (including third
<br /> parties) or any damage to any real or tangible personal property (including the
<br /> personal property of third parties), except to the extent caused by the willful
<br /> misconduct of any Customer Party.
<br /> 8.2. Indemnification by Customer. Subject to Section 8.3, the Customer hereby agrees
<br /> to defend and indemnify Redflex and its affiliates, shareholders or other interest
<br /> holders, managers, officers, directors, employees, agents, representatives and
<br /> successors, permitted assignees and all persons acting by, through, under or in
<br /> concert with them, or any of them (individually a "Redflex Party" and
<br /> collectively, the "Redf lex Parties ") against, and to protect, save and keep
<br /> harmless the Redflex Parties from, and to pay on behalf of or reimburse the
<br /> Redflex Parties as and when incurred for, any and all Losses which may be
<br /> imposed on or incurred by any Redflex Party arising out of or in any way related
<br /> to (a) any material misrepresentation, inaccuracy or breach of any covenant,
<br /> warranty or representation of the Customer contained in this Agreement, (b) the
<br /> negligence or willful misconduct of the Customer, its employees, contractors or
<br /> agents which result in death or bodily injury to any natural person (including
<br /> third parties) or any damage to any real or tangible personal property (including
<br /> the personal property of third parties), except to the extent caused by the willful
<br /> misconduct of any Redflex Party, (c) any claim, action or demand not caused by
<br /> Redflex's failure to perform its obligations under this Agreement, or (d) any
<br /> claim, action or demand challenging the Customer's use of the Redflex System
<br /> or any portion thereof, the validity of the results of the Customer's use of the
<br /> Redflex System or any portion thereof, or the validity of the Citations issued,
<br /> prosecuted and collected as a result of the Customer's use of the Redflex System
<br /> or any portion thereof.
<br /> 8.3. Indemnification Procedures. In the event any claim, action or demand (a
<br /> "Claim ") in respect of which any party hereto seeks indemnification from the
<br /> other, the party seeking indemnification (the "Indemnified Party ") shall give the
<br /> party from whom indemnification is sought (the "Indemnifying Party ") written
<br /> notice of such Claim promptly after the Indemnified Party first becomes aware
<br /> thereof; provided, however, that failure so to give such notice shall not preclude
<br /> indemnification with respect to such Claim except to the extent of any additional
<br /> or increased Losses or other actual prejudice directly caused by such failure. The
<br /> Indemnifying Party shall have the right to choose counsel to defend such Claim
<br /> (subject to the approval of such counsel by the Indemnified Party, which
<br /> approval shall not be unreasonably withheld, conditioned or delayed), and to
<br /> control, compromise and settle such Claim, and the Indemnified Party shall have
<br /> the right to participate in the defense at its sole expense; provided, however, the
<br /> Indemnified Party shall have the right to take over the control of the defense or
<br /> settlement of such Claim at any time if the Indemnified Party irrevocably waives
<br /> all rights to indemnification from and by the Indemnifying Party. The
<br /> Indemnifying Party and the Indemnified Party shall cooperate in the defense or
<br /> 13
<br />
|