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Indemnitee in a final non-appealable judgment (collectively, the “Losses”), arising out of any third- party claim as a result of the negligence or willful misconduct of the Indemnitor, its employees, agents and representatives. Notwithstanding anything to the contrary in this Agreement, this Section 2 does not apply to any claim (whether direct or indirect) for which a sole and exclusive remedy is provided under another section of this Agreement; and provided further, that the Indemnitor is not obligated to indemnify, hold harmless, or defend the Indemnitee against any claim (whether direct or indirect) if such claim or corresponding Losses arise out of or result from, in whole or in part, the Indemnitee’s negligence or willful misconduct. 3. Limitations on Indemnification. Payments by the Indemnitor under Section 2 with respect to any Losses are limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution, or other similar payment actually received by the Indemnitee with respect to any such indemnity claim. The Indemnitee shall use best efforts to seek to recover any insurance proceeds in connection with making a claim under this Section 3. Promptly after the realization of any insurance proceeds, indemnity, contribution, or other similar payment, the Indemnitee shall reimburse Indemnitor for such reduction in Losses for which the Indemnitee was paid under Section 2 before the realization of reduction of such Losses. 4. Indemnification Procedures. The Indemnitee shall give Indemnitor prompt written notice (each, a “Claim Notice”), and in no event more than ten business (10) days of becoming aware of a claim, of any Losses or discovery of facts on which the Indemnitee intends to base a request for indemnification under Section 2. Each Claim Notice must contain a description of the third-party claim and the nature and amount of the related Losses (to the extent that the nature and amount of the Losses are known at the time). The Indemnitee shall furnish promptly to Indemnity copies of all papers and official documents received in respect of any Losses. All indemnification obligations in this Agreement are conditioned upon the Indemnitee: A. delivering the Claim Notice and related documents under this Section 3 as provided above; B. to the extent permitted by any insurance carrier, allowing the Indemnitor, if requested, to undertake, conduct, and control, through reputable independent counsel of its own choosing, the defense, appeal, or settlement of any third-party claim that is reasonably likely to give rise to an indemnification claim under Section 2; C. cooperating with Indemnitor in the defense of any such claim or liability and any related settlement negotiations; and D. to the extent permitted by any insurance carrier, not compromising or settling any claim or liability without prior written consent of Indemnitor. 5. Conversion to Permanent Easement. At ErieNet’s election, and upon the prior written consent of the Town, which shall not be unreasonably withheld, conditioned or delayed, the Page 37 of 241