Common use of Conditions of Indemnification of Third-Party Claims Clause in Contracts

Conditions of Indemnification of Third-Party Claims. The obligations and liabilities of an Indemnitor under Section 8.03 hereof with respect to Damages resulting from Claims by Persons not party to this Agreement shall be subject to the following terms and conditions: Promptly after delivery of an Indemnification Notice in respect of a Claim, and subject to paragraph (c) of this Section 8.04, the Indemnitor may elect, by written notice to the Indemnified Party, to undertake the defense thereof with counsel reasonably satisfactory to the Indemnified Party, at the sole cost and expense of Indemnitor. If the Indemnitor chooses to defend any claim, the Indemnified Party shall cooperate with all reasonable requests of the Indemnitor and shall make available to the Indemnitor any books, records or other documents within its control that are necessary or appropriate for such defense. In the event that the Indemnitor, within a reasonable time after receipt of an Indemnification Notice, does not so elect to defend such Claim, the Indemnified Party will have the right (upon further notice to the Indemnitor) to undertake the defense, compromise or settlement of such Claim for the account of the Indemnitor, subject to the right of the Indemnitor to assume the defense of such Claim pursuant to the terms of paragraph (a) of this Section 8.04 at any time prior to settlement, compromise or final determination thereof, provided, that the Indemnitor reimburses in full all costs of the Indemnified Party (including reasonable attorney's fees and expenses) incurred by it in connection with such defense prior to such assumption. Anything in this Section 8.04 to the contrary notwithstanding, (i) if the Indemnified Party believes there is a reasonable probability that a Claim may materially and adversely affect the Indemnified Party, the Indemnified Party shall have the right to participate in the defense, compromise or settlement of such Claim, provided that the Indemnitor shall not be liable for expenses of separate counsel of the Indemnified Party engaged for such purpose, and (ii) no Person who has undertaken to defend a Claim under Section 8.04(a) hereof shall, without the written consent of all Indemnified Parties, settle or compromise any Claim or consent to entry of any judgment which does not include as an unconditional term thereof the release by the claimant or the plaintiff of all Indemnified Parties from all liability arising from events which allegedly give rise to such Claim.

Conditions of Indemnification of Third-Party Claims. The obligations and liabilities of an Indemnitor the parties under Section 8.03 hereof this Article V with respect to Damages claims of Losses resulting from Claims the assertion of liability by Persons not party to this Agreement third parties ("Third-Party Claim") shall be subject to the following terms and conditions: Promptly after delivery of an Indemnification Notice in respect of a Claim, and subject to paragraph (ci) of this Section 8.04, the Indemnitor may elect, by The Indemnified Party shall give written notice to the Indemnifying Party of any such Claim promptly after the Indemnified Party receives notice thereof, which written notice shall state the nature and basis of such Claim and, if determinable, the amount thereof, provided that failure to so notify the Indemnifying Party shall in no case prejudice the rights of the Indemnified Party under this Agreement unless the Indemnifying Party shall actually be prejudiced by such failure and then only to the extent of such actual prejudice. Upon receipt of notice of any such Claim from the Indemnified Party, to the Indemnifying Party will undertake the defense thereof with counsel reasonably satisfactory to the Indemnified Party, at the sole cost and expense by representatives of Indemnitorits own choosing. If the Indemnitor chooses to defend any claim, the Indemnified Party shall cooperate with all reasonable requests of the Indemnitor and shall make available to the Indemnitor any books, records or other documents within its control that are necessary or appropriate for such defense. (ii) In the event that the IndemnitorIndemnifying Party, within a reasonable time after receipt notice of an Indemnification Noticeany such Claim, does not so elect fails to defend such Claimthe same, the Indemnified Party will have the right shall (upon further notice to the IndemnitorIndemnifying Party) have the right to undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the IndemnitorIndemnifying Party, subject to the right of the Indemnitor Indemnifying Party to assume the defense of such Claim pursuant to the terms of paragraph (a) of this Section 8.04 at any time prior to settlement, compromise or final determination thereof, provided, that the Indemnitor reimburses in full all costs of the Indemnified Party . (including reasonable attorney's fees and expensesiii) incurred by it in connection with such defense prior to such assumption. Anything in this Section 8.04 5.22 to the contrary notwithstanding, (i) if the Indemnified Party believes there is a reasonable probability that a Claim may materially and adversely affect the Indemnified Party, the Indemnified Indemnifying Party shall have the right right, at its own cost and expense, to participate in the defensedefend, compromise or settlement of settle such Claim; provided, provided however, that the Indemnitor Indemnifying Party shall not be liable for expenses of separate counsel of the Indemnified Party engaged for such purpose, and (ii) no Person who has undertaken to defend a Claim under Section 8.04(a) hereof shallnot, without the Indemnified Party's written consent of all Indemnified Partiesconsent, settle or compromise any Claim or consent to entry of any judgment which does not include as an unconditional term thereof the release giving by the claimant or plaintiff to the plaintiff of all Indemnified Parties Party a release from all liability arising from events which allegedly give rise to in respect of such Claim.. The Indemnified Party shall have the right at its own expense to participate in the defense of the Claim. (h)

Conditions of Indemnification of Third-Party Claims. The obligations and liabilities of an Indemnitor under Section 8.03 7.03 hereof with respect to Damages resulting from Claims any Claim by Persons a Person not party to this Agreement (a “Third Party Claim”) shall be subject to the following terms and conditions: Promptly after delivery The Indemnified Party agrees to give the Indemnitor notice of an Indemnification Notice a Third Party Claim in respect of which indemnity may be sought under Section 7.03 in accordance with the notice procedures set forth in Section 7.02 promptly after such Indemnified party learns of the Third Party Claim; provided, however, that failure to give such notice shall not affect the indemnification provided hereunder, except to the extent the Indemnitor shall have been actually prejudiced as a result of such failure. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within ten (10) calendar days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. If a Third Party Claim is made against an Indemnified Party, and the Indemnitor will be entitled to participate in the defense thereof, and, subject to paragraph (c) of this Section 8.047.04, the Indemnitor may elect, by written notice to the Indemnified Party, to undertake the defense and/or settlement thereof with counsel reasonably satisfactory to approved by the Indemnified Party, at the sole cost and expense of the Indemnitor; provided, that should the Indemnitor so elect to undertake the defense of a Third Party Claim, the Indemnitor will not, as long as it conducts such defense, be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof except as otherwise provided in paragraph (c) of this Section 7.04. If the Indemnitor chooses to defend any claim, the Indemnified Party shall cooperate in good faith with all reasonable requests of the Indemnitor and shall retain and make available to the Indemnitor any books, records or other documents within its control that are necessary or appropriate for such defensedefense and make available its employees on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. In the event that the Indemnitor, within a reasonable time thirty (30) days after receipt of an Indemnification Notice, does not so elect to defend such Third Party Claim, the Indemnified Party will have the right (upon further notice to the Indemnitor) to undertake the defense, compromise or settlement of such Claim for the account of the Indemnitor, subject to the right of the Indemnitor to assume the defense of such Third Party Claim pursuant to at the terms of paragraph (a) of this Section 8.04 at any time prior to settlement, compromise or final determination thereof, provided, that the Indemnitor reimburses in full all costs sole cost and expense of the Indemnified Party (including reasonable attorney's fees and expenses) incurred by it in connection with such defense prior to such assumptionIndemnitor. Anything in this Section 8.04 7.04 to the contrary notwithstanding, (i) if the Indemnified Indemnitor assumes the defense of any Third Party believes there is a reasonable probability that a Claim may materially and adversely affect the Indemnified PartyClaim, the any Indemnified Party shall have the right be entitled to participate in the defense, compromise or settlement of such ClaimThird Party Claim with counsel of its own choice at its own expense; provided, provided however, that if representation by the Indemnitor’s counsel would present a conflict of interest, then such Indemnified Party shall be entitled to participate in the defense, compromise or settlement of such Third Party Claim with counsel of its own choice; provided, further, that Indemnitor shall not be liable for expenses of separate counsel of reimburse the Indemnified Party engaged for the expenses of such purposecounsel if a court of competent jurisdiction determines that a conflict of interest existed, and (ii) no Person who that has undertaken to defend a Third Party Claim under Section 8.04(a7.04(a) hereof shall, without the written consent of all Indemnified Parties, settle or compromise any Third Party Claim or consent to entry of any judgment judgment, whether for monetary, injunctive or other non-monetary relief which (A) does not include as an unconditional term thereof the general release by the claimant or the plaintiff of all Indemnified Parties from all liability arising from events which allegedly give rise to such Third Party Claim or (B) imposes any restrictions of any kind on the continuing operations of the Business. If the Indemnified Party shall in good faith determine that the conduct of the defense of any claim subject to indemnification hereunder or any proposed settlement of any such Third Party Claim by the Indemnitor might be expected to affect adversely the ability of the Indemnified Party to conduct its business, or that the Indemnified Party may have available to it one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnitor in respect of such Third Party Claim or any litigation relating thereto, the Indemnified Party shall have the right at all times to take over and assume control over the defense, settlement, negotiations or litigation relating to any such Third Party Claim at the sole cost of the Indemnitor; provided, however, that whether or not the Indemnitor or the Indemnified Party shall have control over the defense, settlement, negotiations or litigation relating to any such Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnitor’s prior written consent. Notwithstanding the foregoing, if a settlement offer is made by a third party claimant and such settlement offer (x) is solely for money damages, (y) includes as an unconditional term thereof the general release by the claimant or the plaintiff of all Indemnified Parties from all liability arising from events which allegedly give rise to such Third Party Claim and (z) does not impose any restrictions on the continuing operations of the Business, and the Indemnitor notifies in writing the Indemnified Party of the Indemnitor’s willingness to accept the settlement offer and, subject to the applicable limitations of this Article VII, pay the amount called for by such offer, and the Indemnified Party declines to accept such offer, the Indemnified Party may continue to contest such Third Party Claim, free of any participation by the Indemnitor, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnitor has an obligation to pay hereunder shall be limited to the lesser of (1) the amount of the settlement offer that the Indemnified Party declined to accept plus the other Damages of the Indemnified Party relating to such Third Party Claim prior to the date of its rejection of the settlement offer or (2) the aggregate Damages of the Indemnified Party with respect to such Third Party Claim.