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be corrected; that the Services will be free of vulnerability to intrusion or attack; or
<br /> that Employer's or Participants' specific requirements will be satisfied. Employer
<br /> acknowledges that 98point6 does not control the transfer of information or data over
<br /> communications facilities, networks, platforms, devices, and other systems, including
<br /> the internet and the platforms and devices through which the Services may be made
<br /> accessible, and that the Services may be subject to limitations, delays, and other
<br /> problems inherent in the use of such communications facilities, networks, platforms,
<br /> devices, and other systems. 98point6 will not be liable for any alteration, theft,
<br /> destruction, or toss of Employer's or Participants' information, data, files, or programs
<br /> as a result thereof, except to the extent such alteration, theft, destruction, or loss
<br /> results from intentional misconduct on the part of 98point6 or its personnel.
<br /> 8. INDEMNIFICATION/INSURANCE
<br /> 8.1. Indemnification by 98point6. 98point6 will indemnify, defend, and hold
<br /> Employer and its respective directors, officers, employees, agents, contractors,
<br /> successors, and assigns harmless from and against any and all losses, claims, suits,
<br /> proceedings, damages, costs, judgments, settlements, penalties, attorneys' fees, or
<br /> other costs or expenses paid or incurred or suffered by such indemnified parties to the
<br /> extent arising out of (a) a claim or allegation by a third party that the Service, the
<br /> 98point6 Marks, or any portion of any of the foregoing, when used as permitted by this
<br /> Agreement, infringe any patent, copyright, or trademark or misappropriate any trade
<br /> secret or infringe any other intellectual property right of such third party; and
<br /> (b) 98point6's breach of its representations and warranties set forth in Section 7
<br /> above, and (c) any misrepresentation or omission on the part of 98point6 or its
<br /> personnel related to the Services or 98point6's performance of this Agreement.
<br /> Notwithstanding the foregoing, 98point6 shall have no liability to Employer or to any
<br /> Participant for any action or claim alleging misrepresentation, misappropriation, or
<br /> infringement based upon (x) any use of the Services, or a component thereof, in a
<br /> manner other than as specified by 98point6 in this Agreement; (y) any use of the
<br /> Services in combination with other services, equipment, devices, software, systems, or
<br /> data not supplied by 98point6, to the extent such action or claim would not have
<br /> arisen but for such combination; or (z) any alteration, modification, or customization
<br /> of the Service, or a component thereof, by any person other than 98point6 (without
<br /> written authorization for 98point6), to the extent such action or claim would not have
<br /> arisen but for such alteration, modification, or customization.
<br /> 8.2. Indemnification by Employer. To the extent allowed by Washington law,
<br /> Employer will indemnify, defend, and hold 98point6, its affiliates, and their respective
<br /> directors, officers, employees, agents, contractors, successors, and assigns harmless
<br /> from and against any and all losses, claims, suits, proceedings, damages, costs,
<br /> judgments, settlements, penalties, attorneys' fees, or other costs or expenses paid or
<br /> incurred or suffered by such indemnified parties to the extent arising out of (a) a
<br /> claim or allegation by a third party (including any governmental entity) that the
<br /> Employer Marks or any portion thereof infringe any trademark or otherwise infringe
<br /> any other intellectual property right of such third party; (b) Employer's breach of its
<br /> representations and warranties set forth in Section 7 above; (c) any misrepresentation
<br /> or omission on the part of Employer or its personnel related to the Services or
<br /> Employer's performance of this Agreement; (d) any penalties, taxes, judgments, or
<br /> expenses assessed against Employer or Employees, Employees' dependents or other
<br /> Plan beneficiaries as a result of the Plan, the Plan design, or any decisions related
<br /> thereto; or (e) Employer's failure to comply with 98point6 program requirements,
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