Seller shall indemnify, defend and hold Buyer, its successors, assigns, shareholders, officers, directors, employees, agents, customers and those persons selling or using any of Buyer's products, and any affiliated company of Buyer, its shareholders, officers, directors, employees, agents and customers, harmless from and against any and all damage, liability, claims, loss, costs, expenses and fees (including reasonable attorneys' fees) arising out of or relating or incidental to any breach by Seller of the terms, covenants, warranties and conditions of the Order, or any act or failure to act by Seller or its agents, representatives or employees in the performance of the Order, including, but not limited to:
a. Death or injury to persons or damage to property, by whomsoever suffered, claimed to have resulted from any alleged defect in the goods or services, or the performance by Seller of work or services pursuant to the Order, or the work or performance of services by Seller's agents, representatives or employees, on the premises of Buyer or one of its customers or suppliers, or from the failure of the goods to comply with any applicable sample or specification or with the express or implied warranties given by Seller, its agents representative or employees.
b. Claims arising out of the alleged violation by Seller in the manufacture, processing, storage, or sale of the goods, or in the performance by Seller of any work or services pursuant to the Order, of any Federal, state or local law, statute, ordinance, or administrative order, rule, regulation or standard.
If either (a) or (b) apply, Buyer shall have the right to employ counsel separate from counsel employed by Seller in any such proceeding for which Buyer may be indemnified by Seller and to participate in the defense thereof, but the expense of such counsel employed by Buyer shall be borne by Buyer unless Seller has failed to assume the defense of Buyer or employ satisfactory counsel. Seller shall reimburse Buyer on an on-going, periodic basis for all fees, costs and expenses incurred by Buyer promptly after submission of statements of expenses of Buyer during the pendency of any such proceeding, including, but not limited to, internal and external legal fees and costs, and pre-judgment and post judgment interest at the greater of such other rate of interest as provided herein or prime or equivalent rate of interest of Chase Bank plus 3% based on a 360-day year.