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negligent or willful misconduct of Texserve, its employees or agents which results in
<br />death or bodily injury to any natural person (including third parties) or any damage to any
<br />real or tangible personal property (including the personal property of third parties),
<br />except to the extent caused by the willful misconduct of any City Party, or (c) any
<br />damage to the school buses (owned, leased or contracted) as a result of installation or
<br />maintained. Texserve warrants that when and if the Equipment is uninstalled, any holes
<br />left on the bus from equipment installation shall be plugged and sealed.
<br />B. Indemnification by City.
<br />To the extent allowed by law, the City hereby agrees to defend and indemnify Texserve,
<br />FxS, and its affiliates, shareholders or other interest holders, managers, officers, directors,
<br />employees, agents, representatives and successors, permitted assignees and all persons
<br />acting by, through, under or in concert with them, or any of them (individually a
<br />" Texserve Party" and collectively the " Texserve Parties ") against, and to protect, save
<br />and keep harmless the FxS Parties from, and to pay on behalf of or reimburse the
<br />Texserve Parties as and when incurred for, any and all Losses which may be imposed on
<br />or incurred by any Texserve Party arising out of or in any way related to (a) any material
<br />misrepresentation, inaccuracy or breach of any covenant, warranty or representation of
<br />the City contained in this Agreement, (b) negligent or willful misconduct of the City, its
<br />employees, contractors or agents which results in death or bodily injury to any natural
<br />person (including third parties) or any damage to any real or tangible personal property
<br />(including the personal property of third parties), except to the extent caused by the
<br />willful misconduct of any Texserve Party, (c) any claim, action or demand not caused by
<br />Texserve's failure to perform its obligations under this Agreement, or (d) any claim,
<br />action or demand challenging the City's use of the FxS System or any portion thereof, or
<br />the validity of the Notices issued, prosecuted and collected as a result of the City's use of
<br />the FxS System or any portion thereof..
<br />C. Indemnification Procedures.
<br />In the event any claim, action or demand (a "Claim ") in respect of which any party hereto
<br />seeks indemnification from the other, the party seeking indemnification (the
<br />"Indemnified Party ") shall give the party from whom indemnification is sought (the
<br />"Indemnifying Party ") written notice of such Claim promptly after the Indemnified Party
<br />first becomes aware thereof, provided, however, that failure to so give such notice shall
<br />not preclude indemnification with respect to such Claim except to the extent of any
<br />additional or increased Losses or other actual prejudice directly caused by such failure.
<br />The Indemnifying Party shall have the right to choose counsel to defend such Claim
<br />(subject to the approval of such counsel by the Indemnified Party, which approval shall
<br />not be unreasonably withheld, conditioned or delayed), and to control, compromise and
<br />settle such Claim, and the Indemnified Party shall have the right to participate in the
<br />defense at its sole expense, provided, however, the Indemnified Party shall have the right
<br />to take over the control of the defense or settlement of such Claim at any time if the
<br />Indemnified Party irrevocably waives all rights to indemnification from and by the
<br />Indemnifying Party. The Indemnifying Party and the Indemnified Party shall cooperate in
<br />the defense or settlement of any Claim, and no party shall have the right enter into any
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