eTrade 2007 Annual Report Download - page 181

indemnification is sought (the “Indemnifying Party”) of the assertion of any claim or assessment, or the commencement of any action,
suit or proceeding, by a third party in respect of which indemnity may be sought hereunder (a “Third Party Claim”) and shall give the
Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request, but no failure to give
such notice shall relieve the Indemnifying Party of any liability hereunder (except to the extent the Indemnifying Party has been
actually prejudiced thereby). The Indemnifying Party shall have the right, exercisable by written notice (the “Indemnification Notice”)
to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of commencement of or assertion of any Third
Party Claim, to assume the defense of such Third Party Claim using counsel of its choice, and the Indemnified Party may participate in
such defense at the Indemnified Party’s expense, which shall include counsel of its own choice. If the Indemnifying Party elects not to
defend the Indemnified Party against such Third Party Claim, whether by failure of the Indemnifying Party to provide the
Indemnification Notice or otherwise, or the Indemnified Party has received advice from its external legal counsel that under applicable
standards of professional responsibility a conflict will arise in the event both the Indemnified Party and the Indemnifying Party are
represented by the same counsel with respect to the Third Party Claim, then the Indemnified Party, without waiving any rights against
the Indemnifying Party, may employ counsel of its own choice and at the expense of the Indemnifying Party. The Indemnifying Party
may not settle any matter (in whole or in part) without the consent in writing of the Indemnified Party (which shall not be
unreasonably withheld), unless such settlement does not involve any relief other than the payment of monetary damages, includes a
complete and unconditional release of the Indemnified Party, does not admit liability on the part of or attribute fault to any Party or its
Affiliates, and contains a provision requiring confidentiality with respect to the facts and circumstances of the dispute and of the
existence and amount of the settlement. The Indemnified Party shall make its employees available and furnish such information
regarding itself or the claim in question as the Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with the defense of such claim and Legal Proceeding resulting therefrom.
Section 6.4 Survival. The provisions of this Article VI shall survive the expiration or termination of this Agreement.
Section 6.5 Limitation on Recovery. The Parties acknowledge that this Article VI is modified by Section 5.2, in accordance
with its terms.
Section 6.6 Exclusive Remedy. Except as otherwise expressly contemplated by this Agreement, this Article VI shall provide
the exclusive remedy for any of the matters addressed herein or other claims arising out of this Agreement, other than for fraud and
other than for the remedies of specific performance, injunctive relief or other non-monetary equitable remedies.
19