Circuit City 2007 Annual Report Download - page 108

Amount shall not apply unless, on or before the second (2
nd
) anniversary of the Internet Closing Date, Systemax and each of the Buyers have,
and have caused their Affiliates to, store the Specified Data in, or otherwise transfer the Specified Data to, a Data Escrow and permanently erase,
purge and otherwise destroy all other copies of the Specified Data, other than such data relating to any individual who has accepted the
provisions of any privacy policy or other contract that contains terms governing the collection, receipt, use, disclosure and transfer of such data
and that is effective after the Internet Closing Date (whether by purchasing a product from the Internet Buyers or otherwise).
(c) any indemnification payments required to be made pursuant to this Agreement shall be reduced by any insurance
proceeds actually received by the indemnified party with respect to the item giving rise to the indemnification payment. Upon the making of the
full amount of the applicable indemnification payment to the indemnified party, the indemnifying party shall be subrogated to the rights of the
indemnified party, up to the amount of such indemnification payment, to claim any insurance proceeds not yet recovered by the indemnified
party with respect to the item which gave rise to the indemnification payment; and
(d) in the event that any Buyer Indemnified Party has the right to indemnity with respect to any Buyer Losses under
Section 9.2, the Seller shall have no liability to indemnify any Buyer Indemnified Party more than once with respect to any such Buyer Losses
nor shall the Seller have any liability to indemnify more than one Buyer Indemnified Party for the same Buyer Losses.
9.5 Notice; Defense of Claims . An indemnified party may make claims for indemnification hereunder by giving written
notice thereof to the indemnifying party within the period in which indemnification claims can be made hereunder. If indemnification is sought
for a claim or liability asserted by a third party, the indemnified party shall also give written notice thereof to the indemnifying party promptly
after it receives notice of the claim or liability being asserted, but the failure to do so shall not relieve the indemnifying party from any liability
except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall summarize the bases for the
claim for indemnification and any claim or liability being asserted by a third party. Within thirty (30) days after receiving such notice the
indemnifying party shall give written notice to the indemnified party stating whether it disputes the claim for indemnification and whether it will
defend against any third party claim or liability at its own cost and expense. If the indemnifying party fails to give notice that it disputes an
indemnification claim within thirty (30) days after receipt of notice thereof, it shall be deemed to have accepted and agreed to the claim, which
shall become immediately due and payable. The indemnifying party (provided such indemnifying party acknowledges its obligation to
indemnify if adversely determined) shall be entitled to direct the defense against a third party claim or liability with counsel selected by it as long
as the indemnifying party is conducting a good faith and diligent defense. If the named parties to the action or proceeding include both the
indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate under applicable
standards of professional conduct, the indemnified party may engage separate counsel at the expense of the indemnifying party. The
indemnifying party shall have the right to compromise or settle any such dispute if such settlement includes an unconditional release of all
claims against the indemnified party. If such settlement does not include an unconditional release of all claims against the indemnified party,
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