LIABILITIES, DAMAGES, LOSSES (INCLUDING DIMINUTION IN VALUE), COSTS AND EXPENSES
(INCLUDING THE
16
COST OF SETTLEMENT, REASONABLE LEGAL AND ACCOUNTING FEES AND ANY OTHER EXPENSES
FOR INVESTIGATING OR DEFENDING ANY ACTION, SUIT OR OTHER PROCEEDING, ACTUAL OR
THREATENED) (COLLECTIVELY, THE "LOSSES") ARISING OUT OF OR IN CONNECTION WITH:
12.2.1 THE FAILURE BY BLOCKADE TO PERFORM ANY OF ITS OBLIGATIONS HEREUNDER OR
ANY BREACH OF ANY REPRESENTATION OR WARRANTY MADE BY BLOCKADE HEREUNDER OR IN
RESPECT OF ANY CLAIM MADE BASED UPON FACTS ALLEGED WHICH, IF TRUE, WOULD
CONSTITUTE SUCH A BREACH;
12.2.2
ANY CLAIM ARISING FROM EVENTS OCCURRING ON OR PRIOR TO THE EFFECTIVE
DATE BY ANY CUSTOMER OR OTHER PERSON RELATING TO OR ARISING OUT OF THE SOFTWARE
OR OTHER ASSETS, EXCEPT FOR ANY CLAIM MADE BY A CUSTOMER RELATED SOLELY TO THE
ASSIGNMENT BY BLOCKADE TO PROGINET IN ACCORDANCE WITH THIS AGREEMENT OF THE
CUSTOMER AGREEMENT TO WHICH SUCH CUSTOMER IS A PARTY.
12.2.3
ANY ACTION, SUIT OR OTHER PROCEEDING, OR OTHER COMPROMISE,
SETTLEMENT OR JUDGMENT, RELATING TO ANY OF THE FOREGOING MATTERS WITH RESPECT TO
WHICH ANY OF THE PROGINET INDEMNIFIED PARTIES IS ENTITLED TO INDEMNIFICATION
UNDER SECTIONS 12.2.1 OR 12.2.2; PROVIDED THAT IN CONNECTION THEREWITH SUCH
BLOCKADE INDEMNIFIED PARTY GIVES PROMPT WRITTEN NOTICE THEREOF TO PROGINET,
ALLOWS PROGINET TO DEFEND, COMPROMISE OR SETTLE SAME AND GIVES PROGINET ALL
AVAILABLE INFORMATION, REASONABLE ASSISTANCE AND AUTHORITY TO ENABLE PROGINET TO
DO SO.
12.3
IF ANY ACTION, SUIT OR OTHER PROCEEDING IS BROUGHT AGAINST THE BLOCKADE
INDEMNIFIED PARTIES OR PROGINET INDEMNIFIED PARTIES (A "CLAIMANT") IN RESPECT OF
WHICH INDEMNIFICATION MAY BE SOUGHT FROM PROGINET OR BLOCKADE, RESPECTIVELY,
PURSUANT TO THE PROVISIONS OF THIS SECTION 12 (AN "INDEMNIFYING PARTY"),
CLAIMANT SHALL PROMPTLY NOTIFY THE INDEMNIFYING PARTY IN WRITING, SPECIFYING THE
NATURE OF THE ACTION, SUIT OR OTHER PROCEEDING AND THE TOTAL MONETARY AMOUNT
AND/OR OTHER RELIEF SOUGHT THEREBY. CLAIMANT SHALL COOPERATE WITH THE
INDEMNIFYING PARTY, AT THE INDEMNIFYING PARTY'S EXPENSE, IN ALL REASONABLE
RESPECTS IN CONNECTION WITH THE DEFENSE OF SUCH ACTION, SUIT OR OTHER
PROCEEDING.
THE INDEMNIFYING PARTY MAY, UPON WRITTEN NOTICE THEREOF TO
CLAIMANT, UNDERTAKE TO CONDUCT ALL PROCEEDINGS OR NEGOTIATIONS IN CONNECTION
THEREWITH, ASSUME THE DEFENCE THEREOF AND, IF IT SO UNDERTAKES, IT SHALL ALSO
TAKE ALL SUCH OTHER REQUIRED STEPS OR PROCEEDINGS TO SETTLE OR DEFEND ANY SUCH
ACTION, SUIT OR OTHER PROCEEDING, INCLUDING THE RETAINING OF COUNSEL REASONABLY
SATISFACTORY TO CLAIMANT AND THE PAYMENT OF ALL EXPENSES RELATING THERETO.
HOWEVER, CLAIMANT SHALL HAVE THE RIGHT, AT ITS OWN EXPENSE, TO RETAIN SEPARATE
COUNSEL AND PARTICIPATE IN THE DEFENSE THEREOF. THE INDEMNIFYING PARTY SHOULD
NOT BE PERMITTED TO SETTLE OR COMPROMISE ANY ACTION SUIT OR PROCEEDING UNDER
SECTION 12 WITHOUT THE CONSENT OF CLAIMANT.
12.4
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11 HEREOF, NEITHER PARTY MAKES,
AND EACH PARTY SPECIFICALLY DISCLAIMS, ANY REPRESENTATION, WARRANTY OR
CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE (INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY QUALITY OR FITNESS
FOR A PARTICULAR PURPOSE).
12.5
UNDER NO CIRCUMSTANCES