Neiman Marcus 2009 Annual Report Download - page 363

(d) dishonest or fraudulent acts by Bank, or any of its Affiliates, agents or employees, in connection with the
Program;
(e) any failure by the Bank Companies to satisfy any of their obligations to (i) Cardholders with respect to the
Program or the Accounts, whether pursuant to the Cardholder Agreements or otherwise or (ii) any other third parties in connection
with its provision of other products and services to such third parties;
(f) any Account Documentation and Solicitation Materials approved by the Management Committee and used
by any of the NMG Companies in that form and in accordance with Bank's instructions and/or the Operating Procedures that fails to
comply with Applicable Law, other than any content in the Solicitation Materials that primarily relates to Loyalty Programs and was
included in the Solicitation Materials in the form provided by NMG without any input from Bank with respect to Applicable Law;
(g) any claim, suit or proceeding by any third party arising out of the failure of the Bank Companies to comply
with Applicable Law in connection with the Program or the Operating Procedures unless such failure was the result of any action
taken or not taken by the Bank Companies at the specific written request or direction of the NMG Companies;
(h) Bank's Inserts or Billing Statement messages; and
(i) allegations by a third party that the use of the Bank Licensed Marks constitutes infringement of any
Intellectual Property right of such third party.
18.3 Procedures.
(a) In case any claim is made, or any suit or action is commenced, against a Party (the "Indemnified Party") in
respect of which indemnification may be sought by it under this ARTICLE XVIII, the Indemnified Party shall promptly give the other
Party (the "Indemnifying Party") notice thereof and the Indemnifying Party shall be entitled to participate in the defense thereof and,
with prior written notice to the Indemnified Party given not later than twenty (20) days after the delivery of the applicable notice from
the Indemnified Party, to assume, at the Indemnifying Party's expense, the defense thereof, with counsel reasonably satisfactory to
such Indemnified Party. After notice from the Indemnifying Party to such Indemnified Party of its election so to assume the defense
thereof, except as set forth in Section 18.3(b), the Indemnifying Party shall not be liable to such Indemnified Party under this
Section for any attorneys' fees or other expenses subsequently incurred by such Indemnified Party in connection with the defense
thereof, other than reasonable costs of investigation.
(b) The Indemnified Party shall have the right to employ its own counsel if the Indemnifying Party elects to
assume such defense, but the fees and expenses of such counsel shall be at the Indemnified Party's expense, unless (i) the employment
of such counsel has been authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party has not employed counsel to
take charge of the defense within twenty (20) days after delivery of the applicable notice or, having elected to assume such defense,
thereafter ceases its defense of such action, or (iii) the Indemnified Party has reasonably concluded that there may be defenses
available to it which are different from or additional to those available to the Indemnifying Party (in which case
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