OFFER AND SALE OF FINANCIAL
9
PRODUCTS PURSUANT TO THE PROGRAM AGREEMENT AND THE REPUBLIC FINANCIAL PRODUCT
AGREEMENT, AND THE PROGRAM GUIDELINES; (III) ANY VIOLATION OR ALLEGED VIOLATION
OF APPLICABLE LAW (INCLUDING, WITHOUT LIMITATION, THE FEDERAL TRUTH IN LENDING
ACT OR ANY REGULATION OF THE FEDERAL RESERVE BOARD OR OTHER APPLICABLE FEDERAL
OR STATE BANKING OR CONSUMER FINANCE LAWS OR REGULATIONS) BY REPUBLIC, THE
FINANCIAL PRODUCTS OR THE PROGRAM GUIDELINES, (IV) THE USE OF THE NAMES,
TRADEMARKS, SERVICE MARKS, TRADE NAMES, SERVICE NAMES, AND LOGOS OF REPUBLIC IN
ANY MATERIALS PRODUCED HEREUNDER AND APPROVED BY REPUBLIC IN CONNECTION WITH THE
PROGRAM; (V) ANY MATERIAL BREACH BY REPUBLIC OF ANY REPRESENTATION, WARRANTY,
COVENANT OR AGREEMENT HEREUNDER; OR (VI) THE NEGLIGENCE OR WILLFUL MISCONDUCT OF
REPUBLIC IN CONNECTION WITH THE PERFORMANCE BY IT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT.
8.3.
PROCEDURES. THE INDEMNITEE SHALL PROMPTLY
NOTIFY THE INDEMNITOR IN WRITING OF ANY CLAIM THAT MAY BE THE SUBJECT OF
INDEMNIFICATION UNDER THIS ARTICLE 8, AND SHALL PROMPTLY TENDER TO THE
INDEMNITOR SOLE CONTROL OF THE DEFENSE AND ANY SETTLEMENT THEREOF; PROVIDED,
HOWEVER, THAT THE FAILURE OF AN INDEMNITEE TO SO NOTIFY THE INDEMNITOR SHALL NOT
RELIEVE THE INDEMNITOR OF ITS INDEMNIFICATION OBLIGATIONS HEREUNDER TO THE
EXTENT THAT SUCH FAILURE DOES NOT ACTUALLY PREJUDICE THE INDEMNITOR WITH RESPECT
TO SUCH CLAIM; AND PROVIDED, FURTHER THAT THE INDEMNITOR SHALL NOT COMPROMISE OR
SETTLE ANY CLAIM OR ACTION WITHOUT THE PRIOR APPROVAL OF THE INDEMNITEE. THE
INDEMNITEE SHALL HAVE THE RIGHT (BUT NOT THE OBLIGATION) TO DEFEND SUCH ACTION
OR PROCEEDING BY RETAINING ATTORNEYS OF ITS OWN SELECTION TO REPRESENT IT AT THE
INDEMNITOR'S REASONABLE EXPENSE; PROVIDED THAT THE INDEMNITOR SHALL IN ALL
EVENTS HAVE THE RIGHT TO PARTICIPATE IN SUCH DEFENSE; AND PROVIDED FURTHER THAT
THE INDEMNITEE SHALL NOT COMPROMISE OR SETTLE ANY SUCH CLAIM OR ACTION WITHOUT
THE PRIOR APPROVAL OF THE INDEMNITOR.
9.
LIMITATION OF LIABILITY.
9.1.
CONSEQUENTIAL DAMAGES. NO PARTY WILL BE LIABLE
TO THE OTHER PARTY FOR INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGE, OR
LOSS OF PROFITS, INCOME, USE OR OTHER BENEFITS, ARISING OUT OF OR IN CONNECTION
WITH THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR ANY FAILURE OF
SUCH PERFORMANCE; UNLESS SUCH DAMAGE OR LOSS IS SUBJECT TO THE INDEMNIFICATION
PROVISIONS OF THIS AGREEMENT OR ARISES FROM THAT PARTY'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
9.2.
FORCE MAJEURE. NOTWITHSTANDING ANY OTHER
PROVISION HEREIN TO THE CONTRARY, EITHER PARTY SHALL BE EXCUSED FROM PERFORMANCE
HEREUNDER FOR FAILURE TO PERFORM ANY OF THE OBLIGATIONS IF (I) SUCH FAILURE TO
PERFORM OCCURS BY REASON OF ANY OF THE FOLLOWING EVENTS ("FORCE MAJEURE
EVENTS"): ACT OF GOD, FIRE, FLOOD, STORM, EARTHQUAKE, TIDAL WAVE, COMMUNICATIONS
FAILURE, SABOTAGE, WAR, MILITARY OPERATION, TERRORIST ATTACK, NATIONAL
EMERGENCY, MECHANICAL OR ELECTRICAL BREAKDOWN, GENERAL FAILURE OF THE POSTAL OR
BANKING SYSTEM, CIVIL COMMOTION, STRIKES, OR THE ORDER, REQUISITION, REQUEST OR
RECOMMENDATION OF ANY GOVERNMENTAL AGENCY OR ACTING GOVERNMENTAL AUTHORITY, OR
EITHER PARTY'S COMPLIANCE THEREWITH OR GOVERNMENT PRORATION, REGULATION, OR
PRIORITY, OR ANY OTHER SIMILAR CAUSE BEYOND EITHER