Conditions of Indemnification. When seeking indemnification under ----------------------------- this Agreement the Party seeking indemnification must, as a condition of indemnification, provide the indemnifying Party with: i) prompt notice of the reported or alleged defect, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claim, and settle such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party shall have the option to assume the other Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreement.
Appears in 3 contracts
Samples: National Marketing and Distribution Agreement (Retractable Technologies Inc), National Marketing and Distribution Agreement (Retractable Technologies Inc), National Marketing and Distribution Agreement (Retractable Technologies Inc)
Conditions of Indemnification. When seeking indemnification The obligations of the Company to indemnify the Indemnified Parties under ----------------------------- this Agreement Section 6.2 with respect to Claims made by third parties shall be subject to the following terms and conditions:
(a) The Indemnified Party seeking indemnification must, as a condition of indemnification, provide shall give the indemnifying Party with: i) Company prompt notice of any such Claim, and the reported Company shall have the right to undertake the defense thereof by representatives chosen by it;
(b) If the Company, within a reasonable time after notice of any such Claim, fails to defend any Indemnified Party against which such Claim has been asserted, such Indemnified Party shall (upon further notice to the Company) have the right to undertake the defense, compromise or alleged defectsettlement of such Claim on behalf of and for the account and risk of the Company, infringement, injury or claim; ii) subject to the opportunity right of the Company to investigate such claim, control assume the defense of such claimClaim at any time prior to settlement, compromise or final determination thereof; and
(c) Anything in this Section 6.3 to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and settle adversely affect an Indemnified Party other than as a result of money damages or other money payments, such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume defend, compromise or settle such Claim; provided, however, that if such Claim is settled without the other PartyCompany's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, consent (which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither ) such Indemnified Party shall be liable deemed to have waived all rights hereunder against the Company for any special, incidental, indirect or consequential money damages arising out of such Claim, and (ii) the Company shall not, without the written consent of such Indemnified Party, settle or relating compromise any Claim or consent to this Agreement; provided, however, this limitation shall the entry of any judgment that does not apply -------- ------- include as an unconditional term thereof the giving by the claimant or the plaintiff to losses arising such Indemnified Party a release from Third Party claims for which a party is indemnified under the terms of this agreementall liability in respect to such Claim.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Ameritech Corp /De/), Stock Purchase Agreement (Hearst Corp), Stock Purchase Agreement (Microleague Multimedia Inc)
Conditions of Indemnification. When The obligations and liabilities of Seller and Buyer hereunder with respect to their respective indemnities pursuant to this Section 8, resulting from any claim or other assertion of liability by third parties (hereinafter called collectively, “Claims”), shall be subject to the following terms and conditions:
(a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must“Indemnified Party”) must give the other party or parties, as a condition of indemnificationthe case may be (the “Indemnifying Party”), provide the indemnifying Party with: i) prompt notice of the reported or alleged defect, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claim, and settle such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party shall have the option to assume the other Party's defense in any such claim or suit with counsel reasonably satisfactory to Claim promptly after the other Party. No settlement or compromise shall be binding on a Indemnified Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this Agreementreceives notice thereof; provided, however, this limitation that failure to give such notice promptly shall not apply -------- ------- relieve the Indemnifying Party of its obligations under this Section 8 except to losses arising the extent that the Indemnifying Party is prejudiced thereby.
(b) The Indemnifying Party shall have the right to undertake, by counsel or other representatives of its own choosing, the defense of such Claim.
(c) In the event that the Indemnifying Party shall elect not to undertake such defense, or within a reasonable time after notice of any such Claim from Third the Indemnified Party claims shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such Claim at any time prior to settlement, compromise or final determination thereof).
(d) Anything in this Section 8.5 to the contrary notwithstanding, if there is a reasonable probability that a Claim may materially and adversely affect the Indemnified Party other than as a result of money damages or other money payments, (i) the Indemnified Party shall have the right, at its own cost and expense, to participate in the defense, compromise or settlement of the Claim, (ii) the Indemnifying Party shall not, without the Indemnified Party’s written consent, settle or compromise any Claim or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a party is indemnified under release from all liability in respect of such Claim, and (iii) in the terms event that the Indemnifying Party undertakes defense of this agreementany Claim, the Indemnified Party, by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Claim and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such Claim.
Appears in 3 contracts
Samples: Transfer and Assignment Agreement (DSW Inc.), Transfer and Assignment Agreement (Retail Ventures Inc), Transfer and Assignment Agreement (DSW Inc.)
Conditions of Indemnification. When The obligations and liabilities of Sellers and of Buyer hereunder with respect to their respective indemnities pursuant to this Article 12, resulting from any Losses, shall be subject to the following terms and conditions:
12.5.1. The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Losses promptly after the reported Indemnified Party receives notice thereof; provided that the failure to give such notice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure.
12.5.2. The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claimLosses at the Indemnifying Party's risk and expense.
12.5.3. In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the Indemnified Party of any such Losses, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and settle for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such claim Losses at its discretion; iii) all information obtained any time prior to settlement, compromise or final determination thereof). In such event, the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the costs and expenses incurred by the Indemnified Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; such defense, compromise or settlement as and ivwhen such costs and expenses are so incurred.
12.5.4. Anything in this Section 12.5 to the contrary notwithstanding, (a) such additional information if there is a reasonable possibility that Losses may materially and assistance adversely affect the Indemnified Party other than as a result of money damages or other money payments, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the Losses, (b) the Indemnifying Party shall not, without the Indemnified Party's defense written consent, settle or compromise any Losses or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in any respect of such claim or suit with counsel reasonably Losses in form and substance satisfactory to the Indemnified Party, and (c) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnified Party, by counsel or other Party. No settlement representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or compromise other representatives concerning such Losses and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall be binding on a cooperate with respect to such Losses and (d) in the event that the Indemnifying Party hereto without its prior written consentundertakes defense of any Losses, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Indemnifying Party shall be liable for any specialhave an obligation to keep the Indemnified Party informed of the status of the defense of such Losses and furnish the Indemnified Party with all documents, incidental, indirect or consequential damages arising out of or relating to this Agreement; provided, however, this limitation instruments and information that the Indemnified Party shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementreasonably request in connection therewith.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Sinclair Broadcast Group Inc), Asset Purchase Agreement (STC Broadcasting Inc)
Conditions of Indemnification. When seeking indemnification The obligations and liabilities of the Company to each Purchaser (herein sometimes called the “party to be indemnified”) under ----------------------------- this Agreement Section 9.1 hereof with respect to claims resulting from the Party seeking indemnification must, as a condition assertion of indemnification, provide liability by third parties shall be subject to the indemnifying Party with: ifollowing terms and conditions:
(a) prompt within thirty (30) days after receipt of notice of commencement of any action or the reported or alleged defectassertion in writing of any claim by a third party, infringement, injury or claim; ii) the opportunity party to investigate be indemnified shall give the Company written notice thereof together with a copy of such claim, control process or other legal pleading (provided, however, that failure to give such notice shall not affect the obligations of the Company under this Section 9 unless and to the extent that such failure shall be prejudicial to the defense of such claimclaim by the Company), and settle the Company shall have the right to undertake the defense thereof by representatives of its own choosing;
(b) in the event that the Company, by the 30th day after receipt of notice of any such claim at its discretion; iii) all information obtained (or, if earlier, by the Party seeking indemnification relating 20th day preceding the day on which an answer or other pleading must be served in order to any complaint or to any claimed or actual defect or deficiency regarding any Productprevent judgment by default in favor of the person asserting such claim), including, but does not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require elect to defend against such claim. The indemnifying Party shall , the party to be indemnified will (upon further notice to the Company) have the option right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the Company, subject to the right of the Company to assume the other Party's defense in of such claim at any time prior to settlement, compromise or final determination thereof, provided that the Company shall be given at least fifteen (15) days prior written notice of the effectiveness of any such claim proposed settlement or suit with counsel reasonably satisfactory compromise;
(c) anything in this Section 9.2 to the other Party. No contrary notwithstanding, (i) the Company shall not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim without the consent of the party to be indemnified, and (ii) no party to be indemnified shall be binding on a Party hereto consent to entry of any judgment or enter into any settlement or compromise of any such action the defense of which has been assumed by the Company without its prior written consentthe consent of the Company, which consent shall not be unreasonably withheld. Each Party shall; and
(d) in connection with any such indemnification, to the extent allowed by law, regard as Confidential Information indemnified party will cooperate with all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out reasonable requests of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementCompany.
Appears in 2 contracts
Samples: Series a 2 Preferred Stock Purchase Agreement, Series a 2 Preferred Stock Purchase Agreement (EPAM Systems, Inc.)
Conditions of Indemnification. When seeking indemnification under ----------------------------- this Agreement The obligations and liabilities of the Party seeking indemnification must, as a condition of indemnification, provide parties with respect to Claims shall be subject to the following terms and conditions:
(a) The indemnified party shall give the indemnifying Party with: i) party prompt notice of any such Claim, and the reported indemnifying party shall have the right to undertake the defense thereof by representatives chosen by it;
(b) If the indemnifying party fails to defend the indemnified party against such Claim within a reasonable time after being notified of the Claim, then the indemnified party shall (upon further notice to the indemnifying party) have the right to defend, compromise or alleged defect, infringement, injury or claim; ii) settle such Claim on behalf of and for the opportunity account and risk of the indemnifying party subject to investigate such claim, control the right of the indemnifying party to assume the defense of such claimClaim at any time prior to settlement, and settle such claim at its discretioncompromise or final determination thereof; iii) all information obtained by provided, that the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as indemnified party shall provide the indemnifying Party party with notice of any proposed settlement or compromise of such Claim (as far in advance of the actual settlement or compromise of the Claim as is reasonably practicable); and
(c) Anything in this Agreement to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may reasonably require to defend against such claim. The indemnifying Party materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the option right, at the cost and expense of the indemnifying party, to assume manage the other Partydefense, compromise or settlement of such Claim; provided, however, that if such Claim is settled without the indemnifying party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, consent (which consent shall not be unreasonably withheld. Each Party shall), to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party indemnified party shall be liable deemed to have waived all rights hereunder against the indemnifying party for any special, incidental, indirect or consequential money damages arising out of such Claim; and (ii) the indemnifying party shall not, without the written consent of the indemnified party, settle or relating compromise any Claim or consent to this Agreement; provided, however, this limitation shall the entry of any judgment which does not apply -------- ------- include as an unconditional term thereof the giving by the claimant or the plaintiff to losses arising the indemnified party a release from Third Party claims for which a party is indemnified under the terms of this agreementall liability in respect to such Claim.
Appears in 2 contracts
Samples: Convertible Preferred Stock Purchase Agreement (Fortress Investment Corp), Convertible Preferred Stock Purchase Agreement (Capstead Mortgage Corp)
Conditions of Indemnification. When The obligations and liabilities of the Company, OASIS, EGLOBE and EOI hereunder with respect to their respective indemnities pursuant to this Article IX, resulting from any Third Party Claim shall be subject to the following terms and conditions:
(a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party (the "Indemnifying Party"), as a condition of indemnification, provide the indemnifying Party with: i) prompt notice of any Third Party Claim which is asserted against, imposed upon or incurred by the reported Indemnified Party and which may give rise to liability of the Indemnifying Party pursuant to this Article IX, stating (to the extent known or alleged defect, infringement, injury or claim; iireasonably anticipated) the opportunity nature and basis of such Third Party Claim and the amount thereof; provided that the failure to investigate give such claimnotice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual material damage by reason of such failure.
(b) Subject to Section 9.4(c) below, control the Indemnifying Party shall have the right to undertake, by counsel or other representatives of its own choosing, the defense of such claimThird Party Claim at the Indemnifying Party's risk and expense.
(c) In the event that (i) the Indemnifying Party shall elect not to undertake such defense, and settle (ii) within a reasonable time after notice from the Indemnified Party of any such claim at its discretion; Third Party Claim, the Indemnifying Party shall fail to undertake to defend such Third Party Claim, or (iii) there is a reasonable probability that such Third Party Claim may materially and adversely affect the Indemnified Party other than as a result of money damages or other money payments, then the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Third Party Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party, provided, however, that in no event shall the Indemnifying Party be required to pay for more than one counsel for all information obtained the Indemnified Parties with respect to such Third Party claim. In the event that an Indemnified Party undertakes the defense of a Third Party Claim under this Section 9.4(c), the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the reasonable costs and expenses incurred by the Indemnified Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; such defense, compromise or settlement as and iv) when such additional information costs and assistance as expenses are so incurred. No Indemnified Party shall, without the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party shall have the option to assume the other Indemnifying Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which settle or compromise such Third Party Claim (provided that such consent shall not be unreasonably withheld. Each Party shall, withheld or delayed).
(d) Anything in this Section 9.4 to the extent allowed by lawcontrary notwithstanding, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither (i) the Indemnifying Party shall be liable for any specialnot, incidentalwithout the Indemnified Party's written consent, indirect settle or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from compromise such Third Party claims for Claim or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such Third Party Claim in form and substance reasonably satisfactory to the Indemnified Party; (ii) in the event that the Indemnifying Party undertakes the defense of such Third Party Claim, the Indemnified Party, by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to participate in the defense, compromise or settlement thereof and each party is indemnified under and its counsel and other representatives shall cooperate with the terms other party and its counsel and representatives in connection therewith; and (iii) in the event that the Indemnifying Party undertakes the defense of this agreementsuch Third Party Claim, the Indemnifying Party shall have an obligation to keep the Indemnified Party informed of the status of the defense of such Third Party Claim and furnish the Indemnified Party with all documents, instruments and information that the Indemnified Party shall reasonably request in connection therewith.
Appears in 2 contracts
Samples: Contribution Agreement (Eglobe Inc), Contribution Agreement (Eastern Airlines Inc)
Conditions of Indemnification. When The obligations and liabilities of the parties hereunder with respect to their indemnities pursuant to this Article 11, resulting from any claim or other assertion of liability by third parties (collectively, "Claims"), shall be subject to the following terms and conditions:
(a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Claim promptly after the reported Indemnified Party receives notice thereof.
(b) The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claim, and settle .
(c) In the event that the Indemnifying Party shall elect not to undertake such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Productdefense, or involving Marketer within a reasonable time after notice of any such Claim from the Indemnified Party shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such Claim at any time prior to settlement, compromise or final determination thereof).
(d) Anything in connection with Marketer's relationship with Manufacturer; this Article 11 to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and iv) such additional information and assistance adversely affect the Indemnified Party other than as a result of money damages or other money payments, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the Claim, (ii) the Indemnifying Party shall not, without the Indemnified Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, settle or compromise any Claim or consent to entry of any judgment which consent shall does not be unreasonably withheld. Each Party shall, include as an unconditional term thereof the giving by the claimant or the plaintiff to the extent allowed Indemnified Party of a release from all liability in respect of such Claim, and (iii) in the event that the Indemnifying Party undertakes defense of any Claim, the Indemnified Party, by lawcounsel or other representative of its own choosing and at its sole cost and expense, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Claim and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall be liable for any special, incidental, indirect or consequential damages arising out of or relating cooperate with respect to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementsuch claim.
Appears in 2 contracts
Samples: Option Agreement (Paxson Communications Corp), Option Agreement (Paxson Communications Corp)
Conditions of Indemnification. When seeking indemnification under ----------------------------- this Agreement the A Party seeking indemnification must, as a condition of indemnification, provide shall give prompt written notice to the indemnifying Party with: i) prompt notice of the reported commencement of any action, suit, or alleged defectproceedings for which indemnification may be sought, infringementand the indemnifying Party, injury or claim; iithrough counsel satisfactory to the indemnified Party (and, if the indemnified Party is BMPI, the approval of Licensors) the opportunity to investigate such claim, control shall assume the defense thereof; provided, however, that the indemnified Party shall be entitled to participate in any such action, suit, or proceeding with counsel of such claimits own choice, and settle such claim but at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as own expense. If the indemnifying Party fails to assume the defense within a reasonable time, the indemnified Party may reasonably require assume such defense and the fees and expenses of its attorneys will be covered by the indemnity provided for in Section 9.1 or 9.2 as applicable. Notwithstanding anything in this Article 9 to defend against such claim. The the contrary, an indemnifying Party shall have not, without the option to assume written consent of the other indemnified Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld:
9.3.1. Each Party shallsettle or compromise any action, suit, or proceeding or consent to the extent allowed entry of any judgment which does not include as an unconditional term thereof the delivery by lawthe claimant or plaintiff to the indemnified Party of a written release from all liability in respect of such action, regard as Confidential Information all matters referenced suit, or proceeding; or
9.3.2. settle or compromise any action, suit, or proceeding in this paragraph Except as otherwise provided, neither any manner which may adversely affect the indemnified Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementits Affiliates.
Appears in 2 contracts
Samples: Manufacturing Agreement (Biomimetic Therapeutics, Inc.), Manufacturing Agreement (Biomimetic Therapeutics, Inc.)
Conditions of Indemnification. When The obligations and liabilities of Seller and of Buyer hereunder with respect to their respective indemnities pursuant to this Section 15, resulting from any claim or other assertion of liability by third parties (hereinafter called collectively, "Claims"), shall be subject to the following terms and conditions:
(a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Claim promptly after the reported Indemnified Party receives notice thereof.
(b) The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claim, and settle .
(c) In the event that the Indemnifying Party shall elect not to undertake such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Productdefense, or involving Marketer within a reasonable time after notice of any such Claim from the Indemnified Party shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such Claim at any time prior to settlement, compromise or final determination thereof).
(d) Anything in connection with Marketer's relationship with Manufacturer; this Section 15.05 to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and iv) such additional information and assistance adversely affect the Indemnified Party other than as a result of money damages or other money payments, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the Claim, (ii) the Indemnifying Party shall not, without the Indemnified Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, settle or compromise any Claim or consent to entry of any judgment which consent shall does not be unreasonably withheld. Each Party shall, include as an unconditional term thereof the giving by the claimant or the plaintiff to the extent allowed Indemnified Party of a release from all liability in respect of such Claim, and (iii) in the event that the Indemnifying Party undertakes defense of any Claim, the Indemnified Party, by lawcounsel or other representative of its own choosing and at its sole cost and expense, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Claim and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall be liable for any special, incidental, indirect or consequential damages arising out of or relating cooperate with respect to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementsuch Claim.
Appears in 2 contracts
Samples: Option Agreement (Osborn Communications Corp /De/), Asset Purchase Agreement (Allbritton Communications Co)
Conditions of Indemnification. When The obligations and liabilities of the FB Shareholders, Far Beyond, and Horler and the Company, with respect to Claims resulting from the assertion of liability by any of them, shall be subject to the following terms and conditions:
(1) The party hereto seeking indemnification under ----------------------------- this Agreement (the Party seeking "INDEMNITEE") will give the other party hereto from whom indemnification must, as a condition of indemnification, provide is sought (the indemnifying Party with: i"INDEMNITOR") prompt notice of any such Claim reasonably promptly after the reported or alleged defectIndemnitee receives notice thereof, infringementand the Indemnitor will have the right to undertake the defense thereof by representatives of its own choosing. The failure of any Indemnitee to give notice as provided herein shall not relieve the Indemnitor of its obligations under Section 14 above, injury or claim; ii) except to the opportunity extent that the Indemnitor is prejudiced by the failure to investigate give such notice. When the Indemnitor undertakes the defense of any claim, control the Indemnitee shall have the right to participate in contesting such claim at its own costs and expense.
(2) In the event that the Indemnitor, within ten (10) business days after notice of any such Claim, fails to defend such Claim, the Indemnitee will (upon giving written notice to the Indemnitor) have the right, but not the obligation, to undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnitor, subject to the right of the Indemnitor to assume the defense of such claimClaim at any time prior to settlement, and settle such claim at its discretion; iiicompromise or final determination thereof.
(3) all information obtained by The Indemnitor shall not, without the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with MarketerIndemnitee's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party shall have the option to assume the other Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, settle or compromise any Claim or consent to entry of any judgment which consent shall does not be unreasonably withheld. Each Party shallinclude an unconditional release from all liability in respect of such Claim, other than liability specified in the settlement, from the claimant or plaintiff to the Indemnitee. To the greatest extent allowed by lawreasonably possible, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party the parties shall be liable for any special, incidental, indirect attempt to obtain general releases from such plaintiff or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementclaimant.
Appears in 2 contracts
Samples: Acquisition Agreement (Asia Resources Holdings LTD), Acquisition Agreement (Hearty Holdings LTD)
Conditions of Indemnification. When seeking indemnification under ----------------------------- this Agreement The obligations and liabilities of the Party seeking indemnification must, as a condition parties hereunder regarding claims resulting from the assertion of indemnification, provide liability by third parties shall be subject to the following terms and conditions:
(1) An indemnified party (the "Indemnified Party") hereby agrees to promptly notify the indemnifying party (the "Indemnifying Party") in writing of any claims asserted against, imposed upon or incurred by the Indemnified Party with: i) prompt notice of and the reported or alleged defect, infringement, injury or claim; ii) the opportunity Indemnifying Party hereby agrees to investigate such claim, control undertake the defense of such claim, and settle such claim at its discretion; iii) all information obtained thereof by representatives chosen by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claimIndemnifying Party. The indemnifying Indemnifying Party shall have the option right to assume control and handle the other Party's conduct of any litigation. The Indemnified Party hereby agrees to cooperate with the Indemnifying Party in the defense in of any such claim or suit with counsel reasonably satisfactory proceeding. The Indemnifying Party hereby agrees to keep the Indemnified Party informed as to the other progress of any such claim or proceeding; and
(2) In the event that the Indemnifying Party, within fifteen (15) days after notification by the Indemnified Party of any claim, fails to defend, control or handle such matter, the Indemnified Party shall have the right, upon written notification to the Indemnifying Party, to defend, compromise or settle the same on behalf of an for the account and at the risk of the Indemnifying Party. No settlement or compromise shall be binding on a In such event, the Indemnifying Party hereto without its prior written consenthereby agrees to advance and pay all costs and reasonable attorneys fees of such indemnification and give full cooperation to the Indemnified Party, which consent shall not be unreasonably withheld. Each Party shallsubject, however, to the extent allowed by lawright of the Indemnifying Party to assume such defense at any time prior to final settlement, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect compromise or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementdetermination thereof.
Appears in 2 contracts
Samples: Consulting Agreement (Dover Petroleum Inc), Consulting Agreement (Dover Petroleum Inc)
Conditions of Indemnification. When The obligations and liabilities of Seller and of Buyer hereunder with respect to their respective indemnities pursuant to this Section 12, resulting from any Losses, shall be subject to the following terms and conditions:
12.5.1. The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Losses promptly after the reported Indemnified Party receives notice thereof; provided that the failure to give such notice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure.
12.5.2. The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claimLosses at the Indemnifying Party's risk and expense.
12.5.3. In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the Indemnified Party of any such Losses, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and settle for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such claim Losses at its discretion; iii) all information obtained any time prior to settlement, compromise or final determination thereof). In such event, the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the costs and expenses incurred by the Indemnified Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; such defense, compromise or settlement as and ivwhen such costs and expenses are so incurred.
12.5.4. Anything in this Section 12.5 to the contrary notwithstanding, (a) such additional information if there is a reasonable possibility that Losses may materially and assistance adversely affect the Indemnified Party other than as a result of money damages or other money payments, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the Losses, (b) the Indemnifying Party shall not, without the Indemnified Party's defense written consent, settle or compromise any Losses or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in any respect of such claim or suit with counsel reasonably Losses in form and substance satisfactory to the Indemnified Party, and (c) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnified Party, by counsel or other Party. No settlement representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or compromise other representatives concerning such Losses and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall be binding on a cooperate with respect to such Losses and (d) in the event that the Indemnifying Party hereto without its prior written consentundertakes defense of any Losses, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Indemnifying Party shall be liable for any specialhave an obligation to keep the Indemnified Party informed of the status of the defense of such Losses and furnish the Indemnified Party with all documents, incidental, indirect or consequential damages arising out of or relating to this Agreement; provided, however, this limitation instruments and information that the Indemnified party shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementreasonably request in connection therewith.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sinclair Broadcast Group Inc)
Conditions of Indemnification. When seeking indemnification under ----------------------------- this Agreement the Party seeking indemnification must, as a condition Promptly upon receipt of indemnification, provide the indemnifying Party with: i) prompt notice of the reported or alleged defect, infringement, injury or claim; ii) the opportunity to investigate such any claim, control demand or assessment or the defense commencement of any suit, action or proceeding with respect to which indemnity may be sought pursuant to this Agreement, the party seeking to be indemnified or held harmless (the “Indemnitee”) shall notify in writing, if possible, within sufficient time to respond to such claim or answer or otherwise plead in such action, the party from whom indemnification is sought (the “Indemnitor”). In case any claim, and settle such claim demand or assessment shall be asserted, or suit, action or proceeding commenced against the Indemnitee, the Indemnitor shall be entitled, at the Indemnitor’s expense, to participate therein, and, to the extent that it may wish, to assume the defense, conduct or settlement thereof, at its discretion; iii) all information obtained by own expense, with counsel satisfactory to the Party seeking Indemnitee, whose consent to the selection of counsel shall not be unreasonably withheld or delayed, provided that the Indemnitor confirms to the Indemnitee that it is a claim to which its rights of indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claimapply. The indemnifying Party Indemnitor shall have the option right to assume the other Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement settle or compromise monetary claims; however, as to any other claim, the Indemnitor shall be binding on a Party hereto without its first obtain the prior written consentconsent from the Indemnitee, which consent shall be exercised in the sole discretion of the Indemnitee. After notice from the Indemnitor to the Indemnitee of Indemnitor’s intent so to assume the defense, conduct, settlement or compromise of such action, the Indemnitor shall not be unreasonably withheldliable to the Indemnitee for any legal or other expenses (including, without limitation, settlement costs) subsequently incurred by the Indemnitee in connection with the defense, conduct or settlement of such action while the Indemnitor is diligently defending, conducting, settling or compromising such action. Each Party shall, to party shall cooperate fully with the extent allowed by law, regard as Confidential Information other party in the defense of all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect such claims or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementsuits.
Appears in 1 contract
Conditions of Indemnification. When seeking indemnification under ----------------------------- this Agreement the Party seeking indemnification must, as a condition of indemnification, provide the indemnifying Party with: i) prompt notice of the reported With respect to any actual or alleged defect, infringement, injury or claim; ii) the opportunity to investigate such potential claim, control any written demand, the defense commencement of any action, or the occurrence of any other event which involves any matter or related series of matters (a "Claim") against which a party hereto is indemnified (the "Indemnified Party") by the other party (the "Indemnifying Party") under Section 4.1, 4.2, 4.3 or 4.4 hereof:
4.5.1. Promptly after the Indemnified Party first receives written documents pertaining to the Claim, or if such Claim does not involve a third party Claim (a "Third Party Claim"), promptly after the Indemnified Party first has actual knowledge of such claimClaim, the Indemnified Party shall give notice to the Indemnifying Party of such Claim in reasonable detail and settle stating the amount involved, if known, together with copies of any such claim at its discretion; iii) all information obtained by written documents.
4.5.2. If the Claim involves a Third Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any ProductClaim, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as then the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnifying Party shall have the option to assume right, at its sole cost, expense and ultimate liability regardless of the other Party's defense in any such claim or suit with outcome, and through counsel of its choice (which counsel shall be reasonably satisfactory to the other Indemnified Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall), to the extent allowed by lawlitigate, regard as Confidential Information all matters referenced in this paragraph Except as defend, settle or otherwise provided, neither attempt to resolve such Third Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this AgreementClaim; provided, however, this limitation shall not apply -------- ------- that if in the Indemnified Party's reasonable judgment a conflict of interest may exist between the Indemnified Party and the Indemnifying Party with respect to losses arising from such Third Party claims Claim, then the Indemnified Party shall be entitled to select counsel of its own choosing, reasonably satisfactory to the Indemnifying Party, in which event the Indemnifying Party shall be obligated to pay the fees and expenses of such counsel. Notwithstanding the preceding sentence, the Indemnified Party may elect, at any time and at the Indemnified Party's sole cost, expense and ultimate liability, regardless of the outcome, and through counsel of its choice, to litigate, defend, settle or otherwise attempt to resolve such Third Party Claim. If the Indemnified Party so elects (for which reasons other than the Indemnifying Party's failure or refusal to provide a party is indemnified under defense to such Third Party Claim), then the terms of this agreement.Indemnifying Party shall have no obligation to indemnify the Indemnified Party with respect to such Third Party Claim, but such disposition will be without
Appears in 1 contract
Samples: Stock Purchase Agreement (Micro Tech Industries Inc)
Conditions of Indemnification. When The obligations and liabilities of Sellers and of Buyer and Avantium US hereunder with respect to their respective indemnities pursuant to this Section 14, resulting from any claim or other assertion of liability by third parties (hereinafter called collectively, "Claims"), shall be subject to the following terms and conditions:
(a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Claim promptly after the reported Indemnified Party receives notice thereof;
(b) The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claim, and settle ;
(c) In the event that the Indemnifying Party shall elect not to undertake such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Productdefense, or involving Marketer within a reasonable time after notice of any such Claim from the Indemnified Party shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such Claim at any time prior to settlement, compromise or final determination thereof); and
(d) Anything in connection with Marketer's relationship with Manufacturer; this Section 14.5 to the contrary notwithstanding, if there is a reasonable probability that a Claim may materially and ivadversely affect the Indemnified Party other than as a result of money damages or other money payments, (i) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the Claim, (ii) the Indemnifying Party shall not, without the Indemnified Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, settle or compromise any Claim or consent to entry of any judgment which consent shall does not be unreasonably withheld. Each Party shall, include as an unconditional term thereof the giving by the claimant or the plaintiff to the extent allowed Indemnified Party of a release from all liability in respect of such Claim, and (iii) in the event that the Indemnifying Party undertakes defense of any Claim, the Indemnified Party, by lawcounsel or other representative of its own choosing and at its sole cost and expense, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Claim and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall be liable for any special, incidental, indirect or consequential damages arising out of or relating cooperate with respect to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementsuch Claim.
Appears in 1 contract
Samples: Asset Sale and Purchase Agreement (Gse Systems Inc)
Conditions of Indemnification. When The obligations and liabilities of the Shareholders and MTLM hereunder with respect to their respective indemnities pursuant to this Article IX resulting from any claim or other assertion of liabilities by third parties (hereinafter called collectively "CLAIMS"), shall be subject to the following terms and conditions:
(a) the party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"INDEMNIFIED PARTY") must give the other party or parties, as a condition of indemnificationthe case may be (the "INDEMNIFYING PARTY"), provide the indemnifying Party with: i) prompt notice of any such Claim twenty (20) days after the reported or alleged defect, infringement, injury or claim; iiIndemnified Party receives notice thereof;
(b) the opportunity Indemnifying Party shall have the right to investigate such claimundertake, control by counsel or other representatives of its own choosing, the defense of such claim, and settle such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party shall have the option to assume the other Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this AgreementClaim; provided, however, if a Claim is made against MTLM which exceeds the value of the Escrow Shares at such time, MTLM shall have the right to control the defense of the Claim;
(c) in the event that the Indemnifying Party shall elect not to undertake such defense, or within a reasonable time after notice of any such Claim from the Indemnified Party shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such Claim at any time prior to settlement, compromise or final determination thereof);
(d) anything in this limitation Section 9.3 to the contrary notwithstanding, (A) the Indemnified Party shall not apply -------- ------- have the right, at its own cost and expense, to losses arising from Third have its own counsel to protect its own interests and participate in the defense, compromise or settlement of the Claim, (B) the Indemnifying Party claims for which a party is indemnified under shall not, without the terms of this agreement.Indemnified Party's written consent, settle or compromise
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of Seller and of Buyer hereunder with respect to their respective indemnities pursuant to this Article 12, resulting from any Losses, shall be subject to the following terms and conditions:
12.5.1. The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"INDEMNIFIED PARTY") must give the other party or parties, as a condition of indemnificationthe case may be (the "INDEMNIFYING PARTY"), provide the indemnifying Party with: i) prompt notice of any such Losses promptly after the reported Indemnified Party receives notice thereof; provided that the failure to give such notice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure.
12.5.2. The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing (reasonably acceptable to the Indemnified Party), infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claim, and settle such claim Losses at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party shall have the option to assume the other Indemnifying Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this Agreementrisk and expense; provided, however, that as a condition to the exercise of such right to undertake defense of such Losses, the Indemnifying Party shall, as between the Indemnifying Party and the Indemnified Party, assume the liability for such Losses, without regard to the limitations set forth in Section 12.4.2.
12.5.3. In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the Indemnified Party of any such Losses, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such Losses at any time prior to settlement, compromise or final determination thereof (with counsel reasonably acceptable to the Indemnified Party)). In such event, the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the costs and expenses incurred by the Indemnified Party in connection with such defense, compromise or settlement as and when such costs and expenses are so incurred.
12.5.4. Anything in this limitation Section 12.5 to the contrary notwithstanding, (a) if any third party alleges the right to or seeks any remedy other than money damages or other money payments, the Indemnified Party shall have the right, at the cost and expense of the Indemnifying Party, to participate in and direct the defense, compromise or settlement of the Losses, (b) the Indemnifying Party shall not, without the Indemnified Party's written consent, settle or compromise any Losses or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such Losses in form and substance reasonably satisfactory to the Indemnified Party, and (c) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnified Party, by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Losses and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such Losses, (d) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnifying Party shall have an obligation to keep the Indemnified Party informed of the status of the defense of such Losses and furnish the Indemnified Party with all documents, instruments and information that the Indemnified party shall reasonably request in connection therewith, and (e) in the event that both the Indemnified Party and the Indemnifying Party are parties (directly or through interpleader) to any Losses giving rise to indemnification hereunder and the Indemnified Party is advised by counsel that there is or may be a conflict of interest in the representation of both the Indemnified Party and the Indemnifying Party by one firm of counsel, the Indemnified Party shall be entitled to assume, at the sole cost and expense of the Indemnifying Party, the defense, compromise and settlement (subject to clause (b) above) of such Loss with counsel (in addition to local counsel) reasonably satisfactory to the Indemnifying Party.
12.5.5. In the event that an Indemnified Party has a good faith basis for a claim for indemnification which does not involve a claim against it by a third party (a "DIRECT CLAIM"), the Indemnified Party shall notify the Indemnifying Party in writing of such Direct Claim with reasonable promptness, specifying, to the extent known, the nature, circumstances and amount of such Direct Claim (a "DIRECT CLAIM NOTICE"), including with particularity the specific representation and warranty or covenant and agreement alleged to have been breached; provided, that the failure to give such notice shall not apply -------- ------- affect the rights of the Indemnified Party hereunder except to losses arising the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure. If the Indemnifying Party notifies the Indemnified Party that it disputes an Indemnified Party's right of indemnification with respect to a particular Direct Claim, the parties shall use their reasonable efforts to negotiate a resolution of such dispute promptly. Except to the extent of the limitations on indemnification set forth in this Article 12, nothing in this Section 12.5.5 shall be deemed to prevent any Indemnified Party from Third initiating litigation under this Agreement with respect to any Direct Claim disputed by the Indemnifying Party claims for which a party is indemnified under the terms purpose of this agreementestablishing the Indemnified Party's right to indemnification hereunder.
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of Seller under Section 9.03 hereof and the obligations and liabilities of Buyer under Section 9.04 hereof with respect to Claims relating to third parties shall be subject to the following terms and conditions:
(a) A party seeking indemnification under ----------------------------- this Agreement ("Indemnified Party") will give the Party seeking party required to provide such indemnification must, as a condition of indemnification, provide (the indemnifying Party with: i"Indemnifying Party") prompt notice of any such Claim, and thereafter the reported Indemnifying Party will undertake the defense thereof by representatives chosen by it.
(b) If the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claim, the Indemnified Party will, upon further notice to the Indemnifying Party, have the right to undertake the defense, -84- 89 compromise or alleged defectsettlement of such Claim on behalf of and for the account and risk of the Indemnifying Party, infringement, injury or claim; ii) subject to the opportunity right of the Indemnifying Party to investigate such claim, control assume the defense of such claimClaim at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 9.05 to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and settle such claim at its discretion; iii) all information obtained by adversely affect an Indemnified Party other than as a result of money damages or other money payments, the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume defend, and with the other consent of the Indemnifying Party's defense in , to compromise or settle such Claim, and (ii) the Indemnifying Party shall not, without the written consent of the Indemnified Party, its successors and assigns settle or compromise any such claim Claim or suit with counsel reasonably satisfactory consent to the other Party. No settlement entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, the plaintiff to the extent allowed by lawIndemnified Party, regard as Confidential Information a release from all matters referenced liability in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out respect of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementsuch Claim.
Appears in 1 contract
Samples: Purchase Agreement (Westinghouse Air Brake Co /De/)
Conditions of Indemnification. When The obligations and liabilities of the Shareholders, Gamma, and the Company, with respect to Claims resulting from the assertion of liability by any of them, shall be subject to the following terms and conditions:
(1) The party hereto seeking indemnification under ----------------------------- this Agreement (the Party seeking "INDEMNITEE") will give the other party hereto from whom indemnification must, as a condition of indemnification, provide is sought (the indemnifying Party with: i"INDEMNITOR") prompt notice of any such Claim reasonably promptly after the reported or alleged defectIndemnitee receives notice thereof, infringementand the Indemnitor will have the right to undertake the defense thereof by representatives of its own choosing. The failure of any Indemnitee to give notice as provided herein shall not relieve the Indemnitor of its obligations under Section 14 above, injury or claim; ii) except to the opportunity extent that the Indemnitor is prejudiced by the failure to investigate give such notice. When the Indemnitor undertakes the defense of any claim, control the Indemnitee shall have the right to participate in contesting such claim at its own costs and expense.
(2) In the event that the Indemnitor, within ten (10) business days after notice of any such Claim, fails to defend such Claim, the Indemnitee will (upon giving written notice to the Indemnitor) have the right, but not the obligation, to undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnitor, subject to the right of the Indemnitor to assume the defense of such claimClaim at any time prior to settlement, and settle such claim at its discretion; iiicompromise or final determination thereof.
(3) all information obtained by The Indemnitor shall not, without the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with MarketerIndemnitee's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party shall have the option to assume the other Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, settle or compromise any Claim or consent to entry of any judgment which consent shall does not be unreasonably withheld. Each Party shallinclude an unconditional release from all liability in respect of such Claim, other than liability specified in the settlement, from the claimant or plaintiff to the Indemnitee. To the greatest extent allowed by lawreasonably possible, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party the parties shall be liable for any special, incidental, indirect attempt to obtain general releases from such plaintiff or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementclaimant.
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of Sellers and of Buyer hereunder with respect to their respective indemnities pursuant to this ARTICLE 12, shall be subject to the following terms and conditions:
(a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition the case may be (the "Indemnifying Party"), notice specifying in reasonable detail the nature of indemnification, provide any such Losses promptly after the indemnifying Indemnified Party with: i) prompt receives notice thereof; provided that the failure to give such notice shall not affect the rights of the reported Indemnified Party hereunder except to the extent that the Indemnifying Party's defense shall have been materially impaired.
(b) The Indemnifying Party shall have the right, absent a conflict of interest, to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claimLosses at the Indemnifying Party's risk and expense.
(c) In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the Indemnified Party of any such Losses, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and settle for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense under SECTION 12.4(B) hereof at any time prior to settlement, compromise or final determination thereof). In such claim at its discretion; iii) all information obtained event, the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the costs and expenses incurred by the Indemnified Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; such defense, compromise or settlement as and ivwhen such costs and expenses are so incurred.
(d) such additional information Anything in this SECTION 12.4 to the contrary notwithstanding, (i) if there is a reasonable probability that Losses may materially and assistance adversely affect the Indemnified Party other than as a result of money damages or other money payments, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the Losses, (ii) the Indemnifying Party shall not, without the Indemnified Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, settle or compromise any Losses or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the extent allowed Indemnified Party of a release from all liability in respect of such Losses in form and substance satisfactory to the Indemnified Party, and (iii) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnified Party, by lawcounsel or other representative of its own choosing and at its sole cost and expense, regard as Confidential Information shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Losses and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such Losses and (iv) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnifying Party shall have an obligation to keep the Indemnified Party informed of the status of the defense of such Losses and furnish the Indemnified Party with all matters referenced documents, instruments and information that the Indemnified party shall reasonably request in this paragraph Except as otherwise providedconnection therewith.
(e) No claim for indemnification shall be made by either Indemnified Party unless the aggregate losses of such Indemnified Party exceed Twenty-Five Thousand Dollars ($25,000) (the "Threshold Amount"), neither whereupon, the Indemnified Party shall be liable entitled to indemnification hereunder by the Indemnifying Party for any special, incidental, indirect or consequential damages arising out such aggregate losses in excess of or relating to the Threshold Amount. Notwithstanding any other provision of this Agreement; provided, however, this limitation the maximum liability that any Indemnifying Party shall have for indemnification claims hereunder shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under exceed Sixteen Million Seven Hundred Fifty Thousand Dollars ($16,750,000) in the terms of this agreementaggregate.
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of Sellers and of Buyer hereunder with respect to their respective indemnities pursuant to this Section 12, resulting from any Losses, shall be subject to the following terms and conditions:
12.5.1. The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Losses promptly after the reported Indemnified Party receives notice thereof; provided that the failure to give such notice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure.
12.5.2. The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing (reasonably acceptable to the Indemnified Party), infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claimLosses at the Indemnifying Party's risk and expense.
12.5.3. In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the Indemnified Party of any such Losses, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and settle for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such claim Losses at its discretion; iii) all information obtained any time prior to settlement, compromise or final determination thereof (with counsel reasonably acceptable to the Indemnified Party)). In such event, the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the costs and expenses incurred by the Indemnified Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; such defense, compromise or settlement as and ivwhen such costs and expenses are so incurred.
12.5.4. Anything in this Section 12.5 to the contrary notwithstanding, (a) such additional information if there is a reasonable probability that Losses may materially and assistance adversely affect the Indemnified Party other than as a result of money damages or other money payments, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the Losses, (b) the Indemnifying Party shall not, without the Indemnified Party's written consent, settle or compromise any Losses or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such Losses in form and substance satisfactory to the Indemnified Party, and (c) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnified Party, by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying - 43 - 52 Party and its counsel or other representatives concerning such Losses and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such Losses (d) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnifying Party shall have an obligation to keep the Indemnified Party informed of the status of the defense of such claim Losses and furnish the Indemnified Party with all documents, instruments and information that the Indemnified party shall reasonably request in connection therewith, and (e) in the event that both the Indemnified Party and the Indemnifying Party are parties (directly or suit through interpleader) to any Losses giving rise to indemnification hereunder and the Indemnified Party is advised by counsel that there is or may be a conflict of interest in the representation of both the Indemnified Party and the Indemnifying Party by one firm of counsel, the Indemnified Party shall be entitled to assume, at the sole cost and expense of the Indemnifying Party, the defense, compromise and settlement (subject to clause (b) above) of such Loss with counsel (in addition to local counsel) reasonably satisfactory to the other Indemnifying Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreement.
Appears in 1 contract
Conditions of Indemnification. When seeking indemnification The obligations and liabilities of ----------------------------- Premier under ----------------------------- this Agreement Article Ten with respect to the Party seeking indemnification must, as a condition of indemnification, provide Claims shall be subject to the indemnifying Party with: ifollowing terms and conditions:
(a) The person to whom such Claim relates (the "Indemnified Party") will give Premier prompt notice of such Claim (but the reported or alleged defectfailure to give prompt notice of such Claim will not result in a loss of the right to be indemnified under this Article Ten except to the extent such failure materially prejudices Premier), infringement, injury or claim; ii) the opportunity to investigate such claim, control and Premier will assume the defense thereof by representatives chosen jointly by Premier and Buyer.
(b) If Premier, within a reasonable time after notice of any such Claim, fails to assume the defense thereof, the Indemnified Party or any other member of its group shall (upon further notice to Premier) have the right to undertake the defense, compromise or settlement of such claimClaim on behalf of and for the account and risk of Premier.
(c) Anything in this Section 10.02 to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and settle adversely affect the Indemnified Party or any other member of the Indemnified Party's group other than as a result of money damages or other money payments, the Indemnified Party or such claim at its discretion; iii) all information obtained by member of the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with MarketerIndemnified Party's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party group shall have the option right to assume defend, at its own cost and expense, and to compromise or settle such Claim with the other Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consentconsent of Premier, which consent shall not be unreasonably withheld. Each Party shall, and (ii) Premier shall not, without the written consent of the Indemnified Party, settle or compromise any claim or consent to the extent allowed entry of any judgment that does not include as an unconditional term thereof the giving by lawthe claimant or the plaintiff to the Indemnified Party or such member of the Indemnified Party's group, regard as Confidential Information or both, a release from all matters referenced liability in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out respect of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementsuch Claim.
Appears in 1 contract
Samples: Asset Purchase and Liability Assumption Agreement (Nb&t Financial Group Inc)
Conditions of Indemnification. When The obligations and liabilities of ----------------------------- Seller and of Buyer hereunder with respect to their respective indemnities pursuant to this Section 11, resulting from any claim or other assertion of liability by third parties (hereinafter called collectively, "Claims"), shall be subject to the following terms and conditions:
(a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Claim promptly after the reported or alleged defect, infringement, injury or claim; iiIndemnified Party receives notice thereof.
(b) In the opportunity to investigate such event of a third party claim, control the Indemnifying Party shall have the right to undertake, by counsel or other representatives of its own choosing, the defense of such claim, and settle .
(c) In the event that the Indemnifying Party shall elect not to undertake such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Productdefense, or involving Marketer within a reasonable time after notice of any such Claim from the Indemnified Party shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such Claim at any time prior to settlement, compromise or final determination thereof).
(d) Anything in connection with Marketer's relationship with Manufacturer; this Section 11.05 to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and iv) such additional information and assistance adversely affect the Indemnified Party other than as a result of money damages or other money payments, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the Claim, (ii) the Indemnifying Party shall not, without the Indemnified Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, settle or compromise any Claim or consent to entry of any judgment which consent shall does not be unreasonably withheld. Each Party shall, include as an unconditional term thereof the giving by the claimant or the plaintiff to the extent allowed Indemnified Party of a release from all liability in respect of such Claim, and (iii) in the event that the Indemnifying Party undertakes defense of any Claim, the Indemnified Party, by lawcounsel or other representative of its own choosing and at its sole cost and expense, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Claim and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall be liable for any special, incidental, indirect or consequential damages arising out of or relating cooperate with respect to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementsuch Claim.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Neomedia Technologies Inc)
Conditions of Indemnification. When The obligations and liabilities of Sellers and of Buyer hereunder with respect to their respective indemnities pursuant to this Article 12, shall be subject to the following terms and conditions:
(a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition the case may be (the "Indemnifying Party"), notice specifying in reasonable detail the nature of indemnification, provide any such Losses promptly after the indemnifying Indemnified Party with: i) prompt receives notice thereof; provided that the failure to give such notice shall not affect the rights of the reported Indemnified Party hereunder except to the extent that the Indemnifying Party's defense shall have been materially impaired.
(b) The Indemnifying Party shall have the right, absent a conflict of interest, to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claimLosses at the Indemnifying Party's risk and expense.
(c) In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the Indemnified Party of any such Losses, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and settle for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense under Section 12.4(b) hereof at any time prior to settlement, compromise or final determination thereof). In such claim at its discretion; iii) all information obtained event, the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the costs and expenses incurred by the Indemnified Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; such defense, compromise or settlement as and ivwhen such costs and expenses are so incurred.
(d) such additional information Anything in this Section 12.4 to the contrary notwithstanding, (i) if there is a reasonable probability that Losses may materially and assistance adversely affect the Indemnified Party other than as a result of money damages or other money payments, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the Losses, (ii) the Indemnifying Party shall not, without the Indemnified Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld, settle or compromise any Losses or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such Losses in form and substance satisfactory to the Indemnified Party, and (iii) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnified Party, by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Losses and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such Losses and (iv) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnifying Party shall have an obligation to keep the Indemnified Party informed of the status of the defense of such Losses and furnish the Indemnified Party with all documents, instruments and information that the Indemnified party shall reasonably request in connection therewith.
(e) No claim for indemnification shall be made by either Indemnified Party unless the aggregate losses of such Indemnified Party exceed Fifty Thousand Dollars ($50,000) (the "Threshold Amount"), whereupon, the Indemnified Party shall be entitled to indemnification hereunder by the Indemnifying Party for any such aggregate losses in excess of the Threshold Amount. Each Notwithstanding any other provision of this Agreement, the maximum liability that any Indemnifying Party shallshall have for indemnification claims hereunder shall not exceed Nine Million Dollars ($9,000,000) in the aggregate.
(f) The indemnification obligations under this Article 12 with respect to Sections 12.2(b) and 12.3(b) shall expire twelve (12) months following the Closing Date; provided, that, if any such indemnification claim under such Sections has been asserted in writing prior to the stated expiration of the applicable period set forth above, then any indemnification obligation with respect thereto shall survive until final resolution thereof.
(g) If any indemnity claim relates to the cleanup of Hazardous Materials, such cleanup shall be required only to the extent allowed that it is required by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating a Governmental Authority pursuant to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementan Environmental Law.
Appears in 1 contract
Samples: Asset Purchase Agreement (Oro Spanish Broadcasting Inc)
Conditions of Indemnification. When seeking indemnification under ----------------------------- this Agreement With respect to any actual or potential claim, any written demand, the Party seeking indemnification mustcommencement of any action, as or the occurrence of any other event which involves any Seller Indemnifiable Claim or Buyer Indemnifiable Claim (a condition of indemnification, provide "Claim"):
(a) Promptly after the indemnifying Party with: i) prompt notice President of the reported Indemnified Party first receives written documents pertaining to the Claim, or alleged defectif such Claim does not involve a third party Claim (a "Third Party Claim"), infringement, injury or claim; ii) promptly after the opportunity to investigate such claim, control the defense Indemnified Party first has actual knowledge of such claimClaim, the Indemnified Party shall give notice to the Indemnifying Party of such Claim in reasonable detail and settle stating the amount involved, if known, together with copies of any such claim at its discretion; iiiwritten documents.
(b) all information obtained The obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to any Claim shall not be affected by the failure of the Indemnified Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Productgive the notice with respect thereto in accordance with Section 5.5(a) hereof unless the Indemnifying Party shall establish by clear and convincing evidence that it has been irretrievably prejudiced thereby.
(c) If the Claim involves a Third Party Claim, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as then the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnifying Party shall have the option to assume right, at its sole cost, expense and ultimate liability regardless of the other Party's defense in any such claim or suit with outcome, and through counsel of its choice (which counsel shall be reasonably satisfactory to the other Indemnified Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall), to the extent allowed by lawlitigate, regard as Confidential Information all matters referenced in this paragraph Except as defend, settle or otherwise provided, neither attempt to resolve such Third Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this AgreementClaim; provided, however, this limitation shall not apply -------- ------- that if in the Indemnified Party's reasonable judgment a conflict of interest may exist between the Indemnified Party and the Indemnifying Party with respect to losses arising from such Third Party claims Claim, then the Indemnified Party shall be entitled to select counsel of its own choosing, reasonably satisfactory to the Indemnifying Party, in which event the Indemnifying Party shall be obligated to pay the fees and expenses of such counsel. Notwithstanding the preceding sentence, the Indemnified Party may elect, at any time and at the Indemnified Party's sole cost, expense and ultimate liability, regardless of the outcome, and through counsel of its choice, to litigate, defend, settle or otherwise attempt to resolve such Third Party Claim. If the Indemnified Party so elects (for which reasons other than the Indemnifying Party's failure or refusal to provide a party is indemnified defense to such Third Party Claim), then the Indemnifying Party shall have no obligation to indemnify the Indemnified Party with respect to such Third Party Claim, but such disposition will be without prejudice to any other right the Indemnified Party may have to indemnification under Section 5.2 or 5.3 hereof, regardless of the terms outcome of this agreementsuch Third Party Claim. If the Indemnifying Party fails or refuses to provide a defense to any Third Party Claim, then the Indemnified Party shall have the right to undertake the defense, compromise or settlement of such Third Party Claim, through counsel of its choice, on behalf of and for the account and at the risk of the Indemnifying Party, and the Indemnifying Party shall be obligated to pay the costs, expenses and attorney's fees incurred by the Indemnified Party in connection with such Third Party Claim. In any event, Seller and the Buyer Indemnitees shall fully cooperate with each other and their respective counsel in connection with any such litigation, defense, settlement or other attempted resolution.
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of the Seller, the Company and the Purchaser, with respect to Claims resulting from the assertion of liability by third parties, shall be subject to the following terms and conditions:
(1) The party hereto seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must, as a condition of indemnification, provide "Indemnitee") will give the indemnifying Party with: iother party hereto (the "Indemnitor") prompt notice of any such Claim reasonably promptly after the reported Indemnitee receives notice thereof, and the Indemnitor will undertake the defense thereof by representatives of its own choosing.
(2) In the event that the Indemnitor, within ten (10) business days after notice of any such Claim, fails to defend such Claim, the Indemnitee will (upon giving written notice to the Indemnitor) have the right, but not the obligation, to undertake the defense, compromise or alleged defectsettlement of such Claim on behalf of and for the account and risk of the Indemnitor, infringement, injury or claim; ii) subject to the opportunity right of the Indemnitor to investigate such claim, control assume the defense of such claimClaim at any time prior to settlement, compromise or final determination thereof.
(3) Anything in this Section to the contrary notwithstanding, if there is a reasonable probability that a Claim may materially and settle such claim at its discretion; iii) all information obtained by adversely affect the Party seeking indemnification relating to any complaint Indemnitee other than as a result of money damages or to any claimed or actual defect or deficiency regarding any Productother money payments, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party Indemnitee shall have the option right to assume defend, compromise or settle such Claim, in good faith, on behalf of and for the other Partyaccount and risk of the Indemnitor. However, the Indemnitee shall not, without the Indemnitor's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, settle or compromise any Claim or consent to entry of any judgment which consent shall does not be unreasonably withheld. Each Party shallinclude an unconditional release from all liability in respect of such Claim, other than liability specified in the settlement, from the claimant or plaintiff to the Indemnitor and the Indemnitee. To the greatest extent allowed by lawreasonably possible, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party the parties shall be liable for any special, incidental, indirect attempt to obtain general releases from such plaintiff or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementclaimant.
Appears in 1 contract
Samples: Acquisition Agreement (China Resources Development Inc)
Conditions of Indemnification. When seeking indemnification under ----------------------------- this Agreement the Party seeking indemnification must, as a condition Promptly upon receipt of indemnification, provide the indemnifying Party with: i) prompt notice of the reported or alleged defect, infringement, injury or claim; ii) the opportunity to investigate such any claim, control demand or assessment or the defense commencement of any suit, action or proceeding with respect to which indemnity may be sought pursuant to this Agreement, the party seeking to be indemnified or held harmless (the “Indemnitee”) shall notify in writing, if possible, within sufficient time to permit response to such claim or answer or other pleading in such action, the party from whom indemnification is sought (the “Indemnitor”). In case any claim, and settle such claim demand or assessment shall be asserted, or suit, action or proceeding commenced against the Indemnitee, the Indemnitor shall be entitled, at the Indemnitor’s expense, to participate therein, and, to the extent that it may wish, to assume the defense, conduct or settlement thereof, at its discretionown expense, with counsel satisfactory to the Indemnitee, whose consent to the selection of counsel shall not be unreasonably withheld or delayed; iii) all information obtained by provided that the Party seeking Indemnitor confirms to the Indemnitee that it is a claim to which its rights of indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claimapply. The indemnifying Party Indemnitor shall have the option right to assume the other Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement settle or compromise monetary claims; however, as to any other claim, the Indemnitor shall be binding on a Party hereto without its first obtain the prior written consentconsent from the Indemnitee, which consent shall be exercised in the sole discretion of the Indemnitee. After notice from the Indemnitor to the Indemnitee of Indemnitor’s intent so to assume the defense, conduct, settlement or compromise of such action, the Indemnitor shall not be unreasonably withheldliable to the Indemnitee for any legal or other expenses (including, without limitation, settlement costs) subsequently incurred by the Indemnitee in connection with the defense, conduct or settlement of such action while the Indemnitor is diligently defending, conducting, settling or compromising such action. Each Party shall, to party shall cooperate fully with the extent allowed by law, regard as Confidential Information other party in the defense of all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect such claims or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementsuits.
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of the Shareholders and MTLM hereunder with respect to their respective indemnities pursuant to this ARTICLE VIII resulting from any claim or other assertion of liabilities by third parties (hereinafter called collectively "Claims"), shall be subject to the following terms and conditions:
(a) the party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Claim 20 days after the reported or alleged defect, infringement, injury or claim; iiIndemnified Party receives notice thereof;
(b) the opportunity Indemnifying Party shall have the right to investigate such claimundertake, control by counsel or other representatives of its own choosing, the defense of such claim, and settle such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party shall have the option to assume the other Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this AgreementClaim; provided, however, if a Claim is made against MTLM which exceeds the value of the Indemnification Security at such time, MTLM shall have the right to control the defense of the Claim;
(c) in the event that the Indemnifying Party shall elect not to undertake such defense, or within a reasonable time after notice of any such Claim from the Indemnified Party shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such Claim at any time prior to settlement, compromise or final determination thereof);
(d) anything in this limitation SECTION 8.3 to the contrary notwithstanding, (A) the Indemnified Party shall have the right, at its own cost and expense, to have its own counsel to protect its own interests and participate in the defense, compromise or settlement of the Claim, (B) the Indemnifying Party shall not, without the Indemnified Party's written consent, settle or compromise any Claim or consent to entry of any judgement which does not apply -------- ------- include as an unconditional term thereof the giving by the claimant or the plaintiff to losses arising the Indemnified Party of a release from Third all liability in respect of such Claim, and (C) the Indemnified Party, by counsel or other representatives of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party claims for which a party is indemnified under and its counsel or other representatives concerning such Claim, and the terms of this agreementIndemnifying Party and the Indemnified Party and their respective counsel shall cooperate with respect to such Claim.
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of Sellers and of Buyer hereunder with respect to their respective indemnities pursuant to this Article 12, resulting from any Losses, shall be subject to the following terms and conditions:
12.5.1. The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"INDEMNIFIED PARTY") must give the other party or parties, as a condition of indemnificationthe case may be (the "INDEMNIFYING PARTY"), provide the indemnifying Party with: i) prompt notice of any such Losses promptly after the reported Indemnified Party receives notice thereof; provided that the failure to give such notice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure.
12.5.2. The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing (reasonably acceptable to the Indemnified Party), infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claim, and settle such claim Losses at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party shall have the option to assume the other Indemnifying Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this Agreementrisk and expense; provided, however, that as a condition to the exercise of such right to undertake defense of such Losses, the Indemnifying Party shall, as between the Indemnifying Party and the Indemnified Party, assume the liability for such Losses, without regard to the limitations set forth in Section 12.4.3.
12.5.3. In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the Indemnified Party of any such Losses, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such Losses at any time prior to settlement, compromise or final determination thereof (with counsel reasonably acceptable to the Indemnified Party)). In such event, the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the costs and expenses incurred by the Indemnified Party in connection with such defense, compromise or settlement as and when such costs and expenses are so incurred.
12.5.4. Anything in this limitation Section 12.5 to the contrary notwithstanding, (a) if any third party alleges the right to or seeks any remedy other than money damages or other money payments, the Indemnified Party shall have the right, at the cost and expense of the Indemnifying Party, to participate in and direct the defense, compromise or settlement of the Losses, (b) the Indemnifying Party shall not, without the Indemnified Party's written consent, settle or compromise any Losses or consent to entry of any judgment which does not apply -------- ------- include as an unconditional term thereof the giving by the claimant or the plaintiff to losses arising the Indemnified Party of a release from Third all liability in respect of such Losses in form and substance satisfactory to the Indemnified Party, and (c) in the event that the Indemnifying Party claims for which undertakes defense of any Losses, the Indemnified Party, by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Losses and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such Losses (d) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnifying Party shall have an obligation to keep the Indemnified Party informed of the status of the defense of such Losses and furnish the Indemnified Party with all documents, instruments and information that the Indemnified party shall reasonably request in connection therewith, and (e) in the event that both the Indemnified Party and the Indemnifying Party are parties (directly or through interpleader) to any Losses giving rise to indemnification hereunder and the Indemnified Party is advised by counsel that there is or may be a party is indemnified under conflict of interest in the terms representation of this agreementboth the Indemnified Party and the Indemnifying Party by one firm of counsel, the Indemnified Party shall be entitled to assume, at the sole cost and expense of the Indemnifying Party, the defense, compromise and settlement (subject to clause (b) above) of such Loss with counsel (in addition to local counsel) reasonably satisfactory to the Indemnifying Party.
Appears in 1 contract
Conditions of Indemnification. When seeking indemnification The obligations and liabilities of Seller to indemnify the Purchaser Group under ----------------------------- Section 10.03 hereof with respect to Claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Any member of the Purchaser Group against whom any such Claim is asserted will give Seller prompt written notice of any such Claim, and Seller or its subsidiary will undertake the defense thereof by representatives of their own choosing. If Seller, within twenty days after written notice of any such Claim, fails to defend such Claim, the member of the Purchaser Group against whom such Claim has been made will (upon further notice to Seller) have the right to reasonably undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk of Seller, subject to the Purchaser notifying the Seller prior to the settlement or compromise thereof.
(b) Anything in this Agreement Section 10.05 to the Party seeking indemnification must, as a condition of indemnification, provide the indemnifying Party with: contrary notwithstanding:
(i) prompt notice The member of the reported or alleged defectPurchaser Group against whom a Claim has been made shall have the right, infringementat its sole expense, injury or claim; ii) the opportunity at any time to investigate such claim, control select and retain representatives to act as co-counsel in the defense of any Claim being defended by representatives of Seller. Seller agrees to cause its representatives to consult in good faith with any such claimPurchaser Group representatives with respect to decisions involving the conduct and defense of any such Claim, provided that, subject to clauses (ii) and settle such claim at its discretion; (iii) all information obtained by of this Section 10.05 (b), the Party seeking indemnification relating representatives of Seller shall retain final discretion and authority with respect to the conduct and defense of such Claim.
(ii) If there is a reasonable possibility that a Claim may adversely affect the member of the Purchaser Group against whom such Claim has been made other than as a result of monetary damages or other monetary payments (i.e., the Purchaser Group may be collaterally stopped from asserting any legal claims or defenses or may be prejudiced as to any complaint or to any claimed or actual defect or deficiency regarding any Productfuture claims), including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as member of the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party Purchaser Group shall have the option right, at its own cost and expense, to assume defend, compromise or settle such Claim; provided that in such event such member of the Purchaser Group shall not have any right of subrogation or contribution against the Seller. Seller shall not, without the written consent of such member of the Purchaser Group, settle or compromise any Claim or consent to the entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to such member of the Purchaser Group a release from all liability in respect of such Claim.
(c) With respect to all other Party's defense future claims of whatever nature alleged or filed against Purchaser with respect to the Elset Business Assets and/or Accom Poland, Seller shall, upon the reasonable request of Purchaser, reasonably assist (without any unreasonable or excessive expense of Seller) Purchaser in the preparation of and for any such claim litigation or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementthreatened litigation.
Appears in 1 contract
Samples: Asset Purchase Agreement (Accom Inc)
Conditions of Indemnification. When The obligations and liabilities of Seller and of Buyer hereunder with respect to their respective indemnities pursuant to this Section 17, resulting from any claim or other assertion of liability by third parties (hereinafter called collectively, "Claims"), shall be subject to the following terms and conditions: 17.05
(a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Claim promptly after the reported Indemnified Party receives notice thereof. 17.05
(b) The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claim, and settle . 17.05
(c) In the event that the Indemnifying Party shall elect not to undertake such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Productdefense, or involving Marketer within a reasonable time after notice of any such Claim from the Indemnified Party shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such Claim at any time prior to settlement, compromise or final determination thereof). 17.05
(d) Anything in connection with Marketer's relationship with Manufacturer; this Section 17.05 to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and iv) such additional information and assistance adversely affect the Indemnified Party other than as a result of money damages or other money payments, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the Claim; (ii) the Indemnifying Party shall not, without the Indemnified Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, settle or compromise any Claim or consent to entry of any judgment which consent shall does not be unreasonably withheld. Each Party shall, include as an unconditional term thereof the giving by the claimant or the plaintiff to the extent allowed Indemnified Party of a release from all liability in respect of such Claim; and (iii) in the event that the Indemnifying Party undertakes defense of any Claim, the Indemnified Party, by lawcounsel or other representative of its own choosing and at its sole cost and expense, regard shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Claim and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such Claim. 17.05
(e) Any representation or warranty that is the subject of a Claim which is asserted in a reasonably detailed writing prior to the expiration of the applicable period set forth in Section 17.01 or Section 17.03, as Confidential Information all matters referenced in this paragraph Except as otherwise providedthe case may be, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating survive with respect to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under such Claim until the terms of this agreementfinal resolution thereof. 18.
Appears in 1 contract
Conditions of Indemnification. When seeking indemnification under ----------------------------- The obligations and liabilities of the Company and the Parent hereunder with respect to their indemnities pursuant to this Agreement Article V, resulting from any Third Party Claim (as defined below) shall be subject to the Party seeking indemnification must, as a condition of following terms and conditions:
(a) To seek indemnification, provide the indemnifying Party with: i) prompt Investor must give the Company and the Parent notice of any Third Party Claim which is asserted against, imposed upon or incurred by the reported Investor and which may give rise to liability of the Company and the Parent pursuant to this Article V, stating (to the extent known or alleged defect, infringement, injury or claim; iireasonably anticipated) the opportunity nature and basis of such Third Party Claim and the amount thereof; provided that the failure to investigate give such claimnotice shall not affect the rights of the Investor hereunder except to the extent that the Company and the Parent shall have suffered actual material damage by reason of such failure.
(b) Subject to Section 5.3(c) below, control the Company and the Parent shall have the right to undertake, by counsel or other representatives of their own choosing, the defense of such claimThird Party Claim at the Company and the Parent's risk and expense.
(c) In the event that (i) the Company and the Parent shall elect not to undertake such defense, (ii) within a reasonable time after notice from the Investor of any such Third Party Claim, the Company and settle the Parent shall fail to undertake to defend such claim at its discretion; Third Party Claim, or (iii) all information obtained there is a reasonable probability that such Third Party Claim may materially and adversely affect the Investor other than as a result of money damages or other money payments, then the Investor (upon further written notice to the Company and the Parent) shall have the right to undertake the defense, compromise or settlement of such Third Party Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Company and the Parent. In the event that the Investor undertakes the defense of a Third Party Claim under this Section 5.3(c), the Company and the Parent shall pay to the Investor, in addition to the other sums required to be paid hereunder, the reasonable costs and expenses incurred by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer Investor in connection with Marketersuch defense, compromise or settlement as and when such costs and expenses are so incurred.
(d) Anything in this Section 5.3 to the contrary notwithstanding, (i) the Company and the Parent shall not, without the Investor's relationship with Manufacturerwritten consent, settle or compromise such Third Party Claim or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Investor of a release from all liability in respect of such Third Party Claim in form and substance satisfactory to the Investor; (ii) in the event that the Company and iv) the Parent undertakes the defense of such additional information Third Party Claim, the Investor, by counsel or other representative of their own choosing and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party at its sole cost and expense, shall have the option right to assume participate in the defense, compromise or settlement thereof and each party and its counsel and other representatives shall cooperate with the other Party's party and its counsel and representatives in connection therewith; and (iii) in the event that the Company and the Parent undertake the defense in any of such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under Claim, the terms Company and the Parent shall have an obligation to keep the Investor informed of this agreementthe status of the defense of such Third Party Claim and furnish the Investor with all documents, instruments and information that the Investor shall reasonably request in connection therewith.
Appears in 1 contract
Samples: Loan and Note Purchase Agreement (Executive Telecard LTD)
Conditions of Indemnification. When The obligations and liabilities of Sellers and of Buyer hereunder with respect to their respective indemnities pursuant to this Section 12, resulting from any Losses, shall be subject to the following terms and conditions:
12.5.1. The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Losses promptly after the reported Indemnified Party receives notice thereof; provided that the failure to give such notice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure.
12.5.2. The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claimLosses at the Indemnifying Party's risk and expense.
12.5.3. In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the Indemnified Party of any such Losses, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and settle for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such claim Losses at its discretion; iii) all information obtained any time prior to settlement, compromise or final determination thereof). In such event, the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the costs and expenses incurred by the Indemnified Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; such defense, compromise or settlement as and ivwhen such costs and expenses are so incurred.
12.5.4. Anything in this Section 12.5 to the contrary notwithstanding, (a) such additional information if there is a reasonable possibility that Losses may materially and assistance adversely affect the Indemnified Party other than as a result of money damages or other money payments, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the Losses, (b) the Indemnifying Party shall not, without the Indemnified Party's defense written consent, settle or compromise any Losses or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in any respect of such claim or suit with counsel reasonably Losses in form and substance satisfactory to the Indemnified Party, and (c) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnified Party, by counsel or other Party. No settlement representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or compromise other representatives concerning such Losses and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall be binding on a cooperate with respect to such Losses and (d) in the event that the Indemnifying Party hereto without its prior written consentundertakes defense of any Losses, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Indemnifying Party shall be liable for any specialhave an obligation to keep the Indemnified Party informed of the status of the defense of such Losses and furnish the Indemnified Party with all documents, incidental, indirect or consequential damages arising out of or relating to this Agreement; provided, however, this limitation instruments and information that the Indemnified party shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementreasonably request in connection therewith.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sinclair Broadcast Group Inc)
Conditions of Indemnification. When The obligations and liabilities of Seller and of Buyer hereunder with respect to their respective indemnities pursuant to this Section 12, resulting from any Losses, shall be subject to the following terms and conditions:
12.5.1 The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Losses promptly after the reported Indemnified Party receives notice thereof; provided that the failure to give such notice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure.
12.5.2 The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claimLosses at the Indemnifying Party's risk and expense.
12.5.3 In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the - 47 - Indemnified Party of any such Losses, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and settle for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such claim Losses at its discretion; iii) all information obtained any time prior to settlement, compromise or final determination thereof). In such event, the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the costs and expenses incurred by the Indemnified Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; such defense, compromise or settlement as and ivwhen such costs and expenses are so incurred.
12.5.4 Anything in this Section 12.5 to the contrary notwithstanding, (i) such additional information if there is a reasonable probability that Losses may materially and assistance adversely affect the Indemnified Party other than as a result of money damages or other money payments, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the Losses, (ii) the Indemnifying Party shall not, without the Indemnified Party's defense written consent, settle or compromise any Losses or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in any respect of such claim or suit with counsel reasonably Losses in form and substance satisfactory to the Indemnified Party, and (iii) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnified Party, by counsel or other Party. No settlement representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or compromise other representatives concerning such Losses and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall be binding on a cooperate with respect to such Losses and (iv) in the event that the Indemnifying Party hereto without its prior written consentundertakes defense of any Losses, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Indemnifying Party shall be liable for any specialhave an obligation to keep the Indemnified Party informed of the status of the defense of such Losses and furnish the Indemnified Party with all documents, incidental, indirect or consequential damages arising out of or relating to this Agreement; provided, however, this limitation instruments and information that the Indemnified party shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementreasonably request in connection therewith.
Appears in 1 contract
Samples: Asset Purchase Agreement (Paxson Communications Corp)
Conditions of Indemnification. When The obligations and liabilities of the Parties with respect to the indemnities provided in this Article XI resulting from any claim or other assertion of liability by third parties (collectively, "Claims"), shall be subject to the following terms and conditions:
(a) The APCOA Indemnitee or Standard Owner Indemnitee seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must, as a condition of indemnification, provide "Indemnified Party") shall give the indemnifying Party with: irelevant indemnitor or indemnitors (the "Indemnifying Party") prompt written notice of any such Claim within the reported time period provided in Section 11.4.
(b) The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claim, and settle Claim.
(c) In the event that the Indemnifying Party shall elect not to undertake such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Productdefense, or involving Marketer within a reasonable time after notice of any such Claim from the Indemnified Party shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party.
(d) Anything in connection with Marketer's relationship with Manufacturer; and ivthis Section 11.5 to the contrary notwithstanding:
(i) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying an Indemnified Party shall have the option right, at its own cost and expense, to assume have its own counsel to protect its own interests and participate in the other defense, compromise or settlement of any Claim;
(ii) an Indemnifying Party shall not, without the Indemnified Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, settle or compromise any Claim or consent to entry of any judgment which consent shall includes any non-monetary performance as a term thereof and which does not be unreasonably withheld. Each Party shall, include as an unconditional term thereof the giving by the claimant or the plaintiff to the extent allowed Indemnified Party of a release from all liability in respect of such Claim; and
(iii) the Indemnified Party, by lawcounsel or other representative of its own choosing and at its sole cost and expense, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Claim and the Indemnifying Party and the Indemnified Party and their respective counsel shall be liable for any special, incidental, indirect or consequential damages arising out of or relating cooperate with respect to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementsuch Claim.
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of ----------------------------- the parties hereunder with respect to Claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) The party hereby seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must, as a condition of indemnification, provide "Indemnitee") will give the indemnifying Party with: iother party hereto (the "Indemnitor") prompt notice of any such claims promptly after the reported Indemnitee receives notice thereof, and the Indemnitor will accept the defense thereof by counsel of its own choosing reasonably acceptable to the Indemnitee; provided, however, the failure to give such notice shall not relieve the Indemnitor of its obligations hereunder except and to the extent he or alleged defectit is prejudiced thereby.
(b) In the event that the Indemnitor, infringement, injury or claim; ii) the opportunity to investigate within a reasonable time after notice of any such claim, control the defense of such claim, and settle such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require fails to defend against such claim. The indemnifying Party , the Indemnitee (upon further notice to the Indemnitor) will have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the Indemnitor, subject to the right of the Indemnitor to assume the defense of such claim at any time prior to the settlement, compromise or final determination thereof;
(c) Anything in this Section 10.5 to the contrary notwithstanding, (i) if the Indemnitee shall so elect, the Indemnitee shall have the option right, at its sole cost and expense, to assume defend, compromise or settle such claim or to participate in the other Partydefense of any such claim being defended by the Indemnitor, (ii) the Indemnitor shall not, without the Indemnitee's defense in written consent, settle or compromise any such claim or suit consent to entry of any judgment which does not include an unconditional term thereof giving the Indemnitee a release from all liability in respect of such claim by the claimant or the plaintiff, and (iii) the Indemnitor agrees to act in good faith with counsel reasonably satisfactory due regard to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, Indemnitee's on-going business interests to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out compatible with an efficient and cost effective resolution of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementdispute.
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of Seller and of Buyer hereunder with respect to their respective indemnities pursuant to this Article 12, resulting from any Losses, shall be subject to the following terms and conditions:
12.5.1. The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"INDEMNIFIED PARTY") must give the other party or parties, as a condition of indemnificationthe case may be (the "INDEMNIFYING PARTY"), provide the indemnifying Party with: i) prompt notice of any such Losses promptly after the reported Indemnified Party receives notice thereof; provided that the failure to give such notice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure.
12.5.2. The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing (reasonably acceptable to the Indemnified Party), infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claim, and settle such claim Losses at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party shall have the option to assume the other Indemnifying Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this Agreementrisk and expense; provided, however, that as a condition to the exercise of such right to undertake defense of such Losses, the Indemnifying Party shall, as between the Indemnifying Party and the Indemnified Party, assume the liability for such Losses, without regard to the limitations set forth in Section 12.4.2.
12.5.3. In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the Indemnified Party of any such Losses, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such Losses at any time prior to settlement, compromise or final determination thereof (with counsel reasonably acceptable to the Indemnified Party)). In such event, the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the costs and expenses incurred by the Indemnified Party in connection with such defense, compromise or settlement as and when such costs and expenses are so incurred.
12.5.4. Anything in this limitation Section 12.5 to the contrary notwithstanding, (a) if any third party alleges the right to or seeks any remedy other than money damages or other money payments, the Indemnified Party shall have the right, at the cost and expense of the Indemnifying Party, to participate in and direct the defense, compromise or settlement of the Losses, (b) the Indemnifying Party shall not, without the Indemnified Party's written consent, settle or compromise any Losses or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such Losses in form and substance reasonably satisfactory to the Indemnified Party, and (c) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnified Party, by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Losses and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such Losses, (d) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnifying Party shall have an obligation to keep the Indemnified Party informed of the status of the defense of such Losses and furnish the Indemnified Party with all documents, instruments and information that the Indemnified Party shall reasonably request in connection therewith, and (e) in the event that both the Indemnified Party and the Indemnifying Party are parties (directly or through interpleader) to any Losses giving rise to indemnification hereunder and the Indemnified Party is advised by counsel that there is or may be a conflict of interest in the representation of both the Indemnified Party and the Indemnifying Party by one firm of counsel, the Indemnified Party shall be entitled to assume, at the sole cost and expense of the Indemnifying Party, the defense, compromise and settlement (subject to clause (b) above) of such Loss with counsel (in addition to local counsel) reasonably satisfactory to the Indemnifying Party.
12.5.5. In the event that an Indemnified Party has a good faith basis for a claim for indemnification which does not involve a claim against it by a third party (a "Direct Claim"), the Indemnified Party shall notify the Indemnifying Party in writing of such Direct Claim with reasonable promptness, specifying, to the extent known, the nature, circumstances and amount of such Direct Claim (a "Direct Claim Notice"), including with particularity the specific representation and warranty or covenant and agreement alleged to have been breached; provided, that the failure to give such notice shall not apply -------- ------- affect the rights of the Indemnified Party hereunder except to losses arising the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure. If the Indemnifying Party notifies the Indemnified Party that it disputes an Indemnified Party's right of indemnification with respect to a particular Direct Claim, the parties shall use their reasonable efforts to negotiate a resolution of such dispute promptly. Except to the extent of the limitations on indemnification set forth in this Article 12, nothing in this Section shall be deemed to prevent any Indemnified Party from Third initiating litigation under this Agreement with respect to any Direct Claim disputed by the Indemnifying Party claims for which a party is indemnified under the terms purpose of this agreementestablishing the Indemnified Party's right to indemnification hereunder.
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of Seller and of Buyer hereunder with respect to their respective indemnities pursuant to this Article 17, resulting from any claim or other assertion of liability by third parties (hereinafter called collectively, "Claims"), shall be subject to the following terms and conditions:
(a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition the case may be (the "Indemnifying Party"), notice of indemnificationany such Claim promptly after the Indemnified Party receives notice thereof, provide and the indemnifying Indemnified Party with: imust give the Indemnifying Party such information with respect to such Claim as the Indemnifying Party may reasonably request;
(b) prompt The Indemnifying Party shall have the right, but not the obligation, exercisable by written notice to the Indemnified Party within 30 days of receipt of notice of the reported Claim, to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claimclaim and, and settle subject to the other provisions of this Section 17.5, control the settlement of such claim at its discretion; iiiClaim;
(c) all information obtained by In the event that the Indemnifying Party seeking indemnification relating shall not elect to any complaint or to any claimed or actual defect or deficiency regarding any Productundertake such defense within the time provided, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right to undertake the defense, compromise or settlement of such Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such Claim at any time prior to settlement, compromise or final determination thereof); and
(d) If there is a reasonable probability that a Claim may materially and adversely affect the Indemnified Party other than as a result of money damages or other money payments, (i) the Indemnified Party shall have the right, at its own cost and expense, to participate in the defense, compromise or settlement of the Claim, (ii) the Indemnifying Party shall not, without the Indemnified Party's defense in written consent, settle or compromise any such claim Claim or suit with counsel reasonably satisfactory consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such Claim, and (iii) in the event that the Indemnifying Party undertakes defense of any Claim, the Indemnified Party, by counsel or other Partyrepresentative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Claim and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such Claim.
(e) In the event a claim for indemnification is made by Buyer based on an alleged breach by Seller of Section 3.5 or 3.6 (an "Infringement Claim"), in lieu of the procedures set forth in Section 17.5(d), the following procedures shall apply: Buyer shall have the right to participate in (but not control), at its expense, the defense of any Infringement Claim that Seller is defending as provided in this Agreement. No Buyer shall cooperate with Seller in a reasonable way to facilitate the settlement or compromise defense of such Infringement Claim, and shall not acknowledge the validity of any alleged Infringement Claim or of any patent, copyright or any third party, or otherwise make statements that could reasonably be binding on a Party hereto expected to have the effect of hampering or undermining Seller's defense or settlement of the Infringement Claim. Seller shall not, without its Buyer's prior written consent, which consent shall not be unreasonably withheld. Each Party shallenter into any compromise or settlement that (i) commits Buyer to take, or forbear to take, any action, other than the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable payment of a reasonable royalty or other reasonable compensation for any special, incidental, indirect or consequential damages arising out the use of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims Intellectual Property Rights or (ii) does not obtain for Buyer the right to continued use of the allegedly infringing information unless Seller has (y) procured for Buyer the right to continue using such Third Party Intellectual Property Rights or (z) provided instructions to replace or modify the same so that it is not subject to such Infringement Claim and is functionally equivalent, in each case in clauses (i) and (ii), upon commercially reasonable terms for the industries in which a party is indemnified under the terms of this agreementEnterprise Division participates.
Appears in 1 contract
Conditions of Indemnification. When seeking indemnification under ----------------------------- this Agreement Subject to the provisions of Section 10.4, the obligations and liabilities of JNB and Z Del, in the case of Section 10.2(a), and Bank, in the case of Section 10.2(b), with respect to claims made by or against third parties ("Third Party seeking indemnification must, as a condition of indemnification, provide Claims") shall be subject to the indemnifying following terms and conditions:
(a) The person to whom such Third Party with: iClaim relates (the "Indemnified Party") will give the party from which indemnity is sought hereunder (the "Indemnifying Party") prompt notice of such Third Party Claim, (which notice in any event shall be given to the reported Indemnifying Party within 10 days of the Indemnified Party first becoming aware of the facts and circumstances that form the basis of such Third Party Claim), and the Indemnifying Party will (except as otherwise contemplated by the proviso to Section 10.3(b) hereof) assume the defense thereof by representatives chosen by it; provided, that the Indemnified Party shall be entitled to participate in such action and to employ counsel at its own expense to assist in the handling of such Third Party Claim.
(b) If the Indemnifying Party, within a reasonable time after notice of any such Third Party Claim, fails to assume the defense thereof, the Indemnified Party shall (upon a subsequent 10 days' notice to the Indemnifying Party) have the right to undertake the defense or, with the consent of the Indemnifying Party, to undertake a compromise or alleged defectsettlement of such Third Party Claim on behalf of and for the account and risk of the Indemnifying Party, infringement, injury or claim; ii) subject to the opportunity right of the Indemnifying Party to investigate such claim, control assume the defense of such claimThird Party Claim at any time prior to the settlement, and compromise or final determination thereof. The Indemnifying Party shall not be liable for any compromise or settlement of a Third Party Claim effected without its written consent (which consent will not be unreasonably withheld, delayed or conditioned). During any period when the Indemnifying Party is contesting any such Third Party Claim in good faith, the Indemnified Party shall not pay, compromise or settle such claim at Third Party Claim without the Indemnifying Party's consent; provided, however, that the Indemnified Party may nonetheless pay, compromise or settle such Third Party Claim without such consent during such period, in which event it shall, automatically and without any further action on its discretion; iiipart, waive any right (whether or not pursuant to this Agreement) to indemnity in respect of all information obtained by the Party seeking indemnification losses, liabilities, damages or expenses relating to any complaint or such Third Party Claim.
(c) Anything in this Section 10.3 to any claimed or actual defect or deficiency regarding any Productthe contrary notwithstanding, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnifying Party shall have not, without the option to assume written consent of the other Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Indemnified Party hereto without its prior written consent, (which consent shall not be withheld unreasonably withheld. Each or delayed), settle or compromise any Third Party Claim or consent to the entry of any judgment which settlement, compromise or consent imposes any future obligation on the Indemnified Party or which does not include as an unconditional term thereof the giving by the claimant and or plaintiff to the Indemnified Party a release from all liabilities in respect of such Third Party Claim.
(d) The Indemnified Party shall, and shall cause its affiliates to, provide the Indemnifying Party with such assistance (without charge) as may reasonably be requested by the Indemnifying Party in connection with any indemnification or defense provided for herein, including, without limitation, providing the Indemnifying Party with such information, documents and records and reasonable access to the extent allowed by law, regard services of and consultations with such personnel of the Indemnified Party or its Affiliates as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither the Indemnifying Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this Agreement; provided, however, this limitation deem necessary (provided that such access shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under unreasonably interfere with the terms performance of this agreementthe duties performed by or responsibilities of such personnel).
Appears in 1 contract
Samples: Merger Agreement (Zale Corp)
Conditions of Indemnification. When (a) The obligations and liabilities of Seller and Buyer hereunder with respect to their respective indemnities pursuant to this Section 7, shall be subject to the following terms and conditions:
(i) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition the case may be (the "Indemnifying Party"), written notice specifying in reasonable detail the nature of indemnification, provide its Losses promptly after the indemnifying Indemnified Party with: i) prompt receives notice thereof; provided that the failure to give such notice shall not affect the rights of the reported Indemnified Party hereunder except and solely to the extent that the Indemnifying Party's defense shall have been materially impaired or alleged defect, infringement, injury or claim; prejudiced thereby.
(ii) The Indemnifying Party shall have the opportunity right, absent a conflict of interest, to investigate such claimundertake, control by counsel or other representatives of its own choosing, the defense of such claimLosses at the Indemnifying Party's risk and expense. In the event there exists the reasonable possibility of an actual, substantial conflict of interest between the Indemnified Party and settle such claim at its discretion; iii) all information obtained by the Indemnifying Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as any matter for which indemnification may be sought hereunder, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right to participate in the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and for the account risk of the Indemnifying Party. In such event, the costs and expenses incurred by the Indemnified Party in connection with such defense, compromise or settlement shall be paid by the Indemnifying Party as and when such costs and expenses are so incurred.
(iii) In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the Indemnified Party of any such Losses, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and for the account risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense under Section 7.4(a)(ii) hereof at any time prior to settlement, compromise or final determination thereof). In such event, the other costs and expenses incurred by the Indemnified Party in connection with such defense, compromise or settlement shall be paid by the Indemnifying Party as and when such costs and expenses are so incurred.
(b) Anything in this Section 7.4 to the contrary notwithstanding, (i) the Indemnified Party shall have the right, at its own cost and expense, to participate in the defense, compromise or settlement of the Losses, (ii) the Indemnifying Party shall not, without the Indemnified Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, settle or compromise any Losses or consent to entry of any judgement which does not include as a unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such Losses in form and substance satisfactory to the Indemnified Party, and (iii) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnified Party, by counsel or other representative of its own choosing at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Losses and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such Losses and (iv) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnifying Party shall have an obligation to keep the Indemnified Party informed of the status of the defense of such Losses and furnish the Indemnified Party with all documents, instruments and information that the Indemnified Party shall reasonably request in connection therewith.
(c) To the extent allowed permitted by applicable law, regard as Confidential Information all matters referenced in payments pursuant to this paragraph Except as otherwise provided, neither Party Section 7 shall be liable for any special, incidental, indirect or consequential damages arising out of or relating treated by the Parties as an adjustment to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementPurchase Price.
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of each Purchaser and of the Company under this Section 7 shall be subject to the following terms and conditions:
(i) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must, as a condition of indemnification, provide “Indemnified Party”) must give the indemnifying Party with: iother party (the “Indemnifying Party”) prompt notice of any Indemnified Liabilities promptly after the reported or alleged defectIndemnified Party receives notice thereof; provided, infringement, injury or claim; that the failure to give such notice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure.
(ii) The Indemnifying Party shall have the opportunity right to investigate such claimundertake, control by counsel or other representatives of its own choosing (reasonably acceptable to the Indemnified Party), the defense of such claimIndemnified Liabilities at the Indemnifying Party’s risk and expense (without reservation of rights and without any limitations contained therein), except as provided in this Agreement. In the event that either (A) with respect to any third party claim which could result in Indemnified Liabilities (a “Third Party Claim”), such Indemnified Liabilities are reasonably expected to exceed the Indemnifying Party’s obligations hereunder therefor, or, (B) within a reasonable time after notice from the Indemnified Party of any such Indemnified Liabilities, the Indemnifying Party shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Indemnified Liabilities, by counsel or other representatives of its own choosing, on behalf of and settle such claim at its discretion; iii) all information obtained for the account and risk of the Indemnifying Party. In the event the Indemnified Party assumes the defense of a Third Party Claim pursuant to this subparagraph (ii), the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the reasonable costs and expenses incurred by the Indemnified Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship such defense, compromise or settlement as and when such costs and expenses are so incurred.
(iii) Anything in this paragraph 7D to the contrary notwithstanding, in connection with Manufacturer; and ivany Third Party Claim, (a) such additional information and assistance as if any third party claimant alleges the indemnifying Party may reasonably require right to defend against such claim. The indemnifying or seeks any remedy other than money damages or other money payments, the Indemnified Party shall have the option right, at its own cost and expense, to assume participate in and direct the other defense, compromise or settlement of such proceeding, (b) the Indemnifying Party shall not, without the Indemnified Party's defense ’s written consent, settle or compromise any Indemnified Liabilities or consent to entry of any judgment which does not include as an unconditional term thereof the receipt by the Indemnified Party from the claimant or the plaintiff of a release from all liability in any respect of such claim or suit with counsel Indemnified Liabilities in form and substance reasonably satisfactory to the Indemnified Party, (c) in the event that the Indemnifying Party undertakes the defense of any Indemnified Liabilities, the Indemnified Party, by counsel or other Party. No settlement representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or compromise other representatives concerning such Indemnified Liabilities and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, cooperate with respect to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreement.such Indemnified Liabilities,
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of the parties hereunder with respect to their respective indemnities pursuant to this Article 10, resulting from any ---------- Losses, shall be subject to the following terms and conditions:
10.5.1. The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Losses promptly after the reported Indemnified Party receives notice thereof; provided that the failure to give such notice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure.
10.5.2. The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claimLosses at the Indemnifying Party's risk and expense.
10.5.3. In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the Indemnified Party of any such Losses, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and settle for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such claim Losses at its discretion; iii) all information obtained any time prior to settlement, compromise or final determination thereof). In such event, the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the costs and expenses incurred by the Indemnified Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; such defense, compromise or settlement as and ivwhen such costs and expenses are so incurred.
10.5.4. Anything in this Section 10.5 to the contrary ------------ notwithstanding, (a) such additional information if there is a reasonable possibility that Losses may materially and assistance adversely affect the Indemnified Party other than as a result of money damages or other money payments, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the Losses, (b) the Indemnifying Party shall not, without the Indemnified Party's defense written consent, settle or compromise any Losses or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in any respect of such claim or suit with counsel reasonably Losses in form and substance satisfactory to the Indemnified Party, and (c) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnified Party, by counsel or other Party. No settlement representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or compromise other representatives concerning such Losses and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall be binding on a cooperate with respect to such Losses and (d) in the event that the Indemnifying Party hereto without its prior written consentundertakes defense of any Losses, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Indemnifying Party shall be liable for any specialhave an obligation to keep the Indemnified Party informed of the status of the defense of such Losses and furnish the Indemnified Party with all documents, incidental, indirect or consequential damages arising out of or relating to this Agreement; provided, however, this limitation instruments and information that the Indemnified Party shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementreasonably request in connection therewith.
Appears in 1 contract
Samples: Asset Exchange Agreement (Hearst Argyle Television Inc)
Conditions of Indemnification. When (a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must“Indemnified Party”) must give the other party or parties, as a condition of indemnificationthe case may be (the “Indemnifying Party”), provide the indemnifying Party with: i) prompt notice of any claim as to which recovery may be sought against the reported Indemnifying Party because of the indemnities set forth in this Section 11 promptly after the Indemnified Party receives notice thereof, provided that the failure to give such notice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure.
(b) If such indemnity shall arise from the claim of a third party, the Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claim at the Indemnifying Party’s risk and expense.
(c) In the event that the Indemnifying Party shall elect not to undertake such defense as provided in (b) above, or within a reasonable time after notice of any such claim of a third party from the Indemnified Party shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such claim, by counsel or other representatives of its own choosing, on behalf of and settle for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such claim at its discretion; iii) all information obtained any time prior to settlement, compromise or final determination thereof). In such event, the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the costs and expenses incurred by the Indemnified Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; such defense, compromise or settlement as and ivwhen such costs and expenses are so incurred.
(d) such additional information Anything in this Section 11.5 to the contrary notwithstanding, if there is a reasonable probability that a claim may materially and assistance adversely affect the Indemnified Party other than as a result of money damages or other money payments, (i) the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the claim, (ii) the Indemnifying Party shall not, without the Indemnified Party's defense ’s written consent (such consent not to be unreasonably withheld), settle or compromise any claim or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in any respect of such claim or suit with counsel reasonably in form and substance satisfactory to the Indemnified Party, (iii) in the event that the Indemnifying Party undertakes defense of any claim, the Indemnified Party, by counsel or other Partyrepresentative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such claim and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such claim, and (iv) in the event that the Indemnifying Party undertakes defense of any claim, the Indemnifying Party shall have an obligation to keep the Indemnified Party informed of the status of the defense of such claim and to furnish the Indemnified Party with all documents, instruments and information that the Indemnified Party shall reasonably request in connection therewith. No settlement or compromise The indemnification obligations under this Section 11 shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shallsurvive the Closing Date and, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this Agreement; providedany representation, howeverwarranty or covenant, this limitation shall not apply -------- ------- terminate on the expiration date of the representation, warranty or covenant to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementit relates.
Appears in 1 contract
Samples: Asset Sale and Purchase Agreement (Martek Biosciences Corp)
Conditions of Indemnification. When The obligations and liabilities of Seller under Section 13.2 hereof and the obligations and liabilities of Buyer under Section 13.3 hereof with respect to claims relating to third parties shall be subject to the following terms and conditions:
(a) A party seeking indemnification under ----------------------------- this Agreement ("Indemnified Party") will give the party required to provide such indemnification (the "Indemnifying Party") notice of any such claim promptly, but in no event later than five (5) Business Days after receiving notice hereof, and thereafter the Indemnifying Party seeking will undertake the defense thereof by representatives chosen by it, provided, however, that failure to give such notification shall not affect the indemnification must, provided for herein except to the extent the Indemnifying Party shall have been actually prejudiced as a condition result of indemnificationsuch failure; provided, provide further, however, that even if Seller as Indemnifying Party undertakes the indemnifying Party with: i) prompt notice defense of the reported or alleged defect, infringement, injury or claim; ii) the opportunity to investigate such a claim, control Buyer may, at its own expense, participate in the defense of such claim.
(b) If the Indemnifying Party, and settle within a reasonable time after notice of any such claim, fails to defend such claim, the Indemnified Party will have the right to undertake the defense, compromise or settlement of such claim at its discretion; iiithe expense and on behalf of and for the account and risk of the Indemnifying Party.
(c) all information obtained by Anything in this Section to the contrary notwithstanding, (i) if there is a reasonable probability that a claim may materially and adversely affect an Indemnified Party seeking indemnification relating to any complaint other than as a result of money damages or to any claimed or actual defect or deficiency regarding any Productother money payments, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume defend, and with the other consent of the Indemnifying Party's defense in , to compromise or settle such claim, and (ii) the Indemnifying Party shall not, without the written consent of the Indemnified Party, its successors and assigns, settle or compromise any such claim or suit with counsel reasonably satisfactory consent to the other Party. No settlement entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, the plaintiff to the extent allowed by lawIndemnified Party, regard as Confidential Information a release from all matters referenced liability in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out respect of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementsuch claim.
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of Seller and of Buyer hereunder with respect to their respective indemnities pursuant to this Section 14, resulting from any claim or other assertion of liability by third parties (hereinafter called collectively, "Claims"), shall be subject to the following terms and conditions:
(a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Claim promptly after the reported Indemnified Party receives notice thereof.
(b) The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claim, and settle .
(c) In the event that the Indemnifying Party shall elect not to undertake such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Productdefense, or involving Marketer within a reasonable time after notice of any such Claim from the Indemnified Party shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such Claim at any time prior to settlement, compromise or final determination thereof).
(d) Anything in connection with Marketer's relationship with Manufacturer; this Section 14.06 to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and iv) such additional information and assistance adversely affect the Indemnified Party other than as a result of money damages or other money payments, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the Claim, (ii) the Indemnifying Party shall not, without the Indemnified Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, settle or compromise any Claim or consent to entry of any judgment which consent shall does not be unreasonably withheld. Each Party shall, include as an unconditional term thereof the giving by the claimant or the plaintiff to the extent allowed Indemnified Party of a release from all liability in respect of such Claim, and (iii) in the event that the Indemnifying Party undertakes defense of any Claim, the Indemnified Party, by lawcounsel or other representative of its own choosing and at its sole cost and expense, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Claim and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall be liable for any special, incidental, indirect or consequential damages arising out of or relating cooperate with respect to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementsuch Claim.
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of the parties hereunder with respect to their respective indemnities pursuant to this Article 10, resulting from any Losses, shall be subject to the following terms and conditions:
10.5.1. The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Losses promptly after the reported Indemnified Party receives notice thereof; provided that the failure to give such notice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure.
10.5.2. The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claimLosses at the Indemnifying Party's risk and expense.
10.5.3. In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the Indemnified Party of any such Losses, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and settle for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such claim Losses at its discretion; iii) all information obtained any time prior to settlement, compromise or final determination thereof). In such event, the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the costs and expenses incurred by the Indemnified Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; such defense, compromise or settlement as and ivwhen such costs and expenses are so incurred.
10.5.4. Anything in this Section 10.5 to the contrary notwithstanding, (a) such additional information if there is a reasonable possibility that Losses may materially and assistance adversely affect the Indemnified Party other than as a result of money damages or other money payments, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the Losses, (b) the Indemnifying Party shall not, without the Indemnified Party's defense 70 written consent, settle or compromise any Losses or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in any respect of such claim or suit with counsel reasonably Losses in form and substance satisfactory to the Indemnified Party, and (c) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnified Party, by counsel or other Party. No settlement representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or compromise other representatives concerning such Losses and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall be binding on a cooperate with respect to such Losses and (d) in the event that the Indemnifying Party hereto without its prior written consentundertakes defense of any Losses, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Indemnifying Party shall be liable for any specialhave an obligation to keep the Indemnified Party informed of the status of the defense of such Losses and furnish the Indemnified Party with all documents, incidental, indirect or consequential damages arising out of or relating to this Agreement; provided, however, this limitation instruments and information that the Indemnified Party shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementreasonably request in connection therewith.
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of Sellers and of Buyer hereunder with respect to their respective indemnities pursuant to this SECTION 12, resulting from any Losses, shall be subject to the following terms and conditions:
12.5.1. The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Losses promptly after the reported Indemnified Party receives notice thereof; provided that the failure to give such notice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure.
12.5.2. The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives (reasonably satisfactory to the Indemnified Party) of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claimLosses at the Indemnifying Party's risk and expense.
12.5.3. In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the Indemnified Party of any such Losses, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and settle for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such claim Losses at its discretion; iii) all information obtained any time prior to settlement, compromise or final determination thereof). In such event, the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the costs and expenses incurred by the Indemnified Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; such defense, compromise or settlement as and ivwhen such costs and expenses are so incurred.
12.5.4. Anything in this SECTION 12.5 to the contrary notwithstanding, (a) such additional information if there is a reasonable probability that Losses may materially and assistance adversely affect the Indemnified Party other than as a result of money damages or other money payments, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the defense, compromise or settlement of any Losses and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such Losses, (b) the Indemnifying Party shall not, without the Indemnified Party's written consent, settle or compromise any Losses or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such Losses in form and substance satisfactory to the Indemnified Party, (c) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnified Party, by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Losses and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such Losses, (d) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnifying Party shall have an obligation to keep the Indemnified Party informed of the status of the defense of such claim Losses and furnish the Indemnified Party with all documents, instruments and information that the Indemnified party shall reasonably request in connection therewith and (e) in the event that both the Indemnified Party and the Indemnifying Party are parties (directly or suit through interpleader) to any Losses giving rise to indemnification hereunder and the Indemnified Party is advised by counsel that there is or may be a conflict of interest in the representation of both the Indemnified Party and the Indemnifying Party by one firm or counsel, the Indemnified Party shall be entitled to assume, at the sole cost and expense of the Indemnifying Party, the defense, compromise and settlement (subject to clause (b) above) of such Loss with counsel (in addition to appropriate local counsel) reasonably satisfactory to the other Indemnifying Party.
12.5.5. No settlement or compromise In the event that an Indemnified Party has a claim for indemnification which does not involve a claim against it by a third party (a "Direct Claim"), the Indemnified Party shall be binding on a notify the Indemnifying Party hereto without its prior written consentin writing of such Direct Claim with reasonable promptness, which consent shall not be unreasonably withheld. Each Party shallspecifying, to the extent allowed by lawknown, regard as Confidential Information all matters referenced the nature, circumstances and amount of such Direct Claim (a "Direct Claim Notice"), including with particularity the specific representation and warranty or covenant and agreement alleged to have been breached. If the Indemnifying Party notifies -43- the Indemnified Party that it disputes an Indemnified Party's right of indemnification with respect to a particular Direct Claim, the parties shall use their reasonable efforts to negotiate a resolution of such dispute promptly. Subject to the limitations on indemnification set forth in this paragraph Except as otherwise providedARTICLE 12, neither Party nothing in this Section 12.5.5 shall be liable deemed to prevent any Indemnified Party from initiating litigation under this Agreement with respect to any Direct Claim disputed by the Indemnified Party for any special, incidental, indirect or consequential damages arising out the purpose of or relating establishing the Indemnified Party's right to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementindemnification hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Chancellor Broadcasting Licensee Co)
Conditions of Indemnification. When seeking indemnification under ----------------------------- The obligations and liabilities of Seller and of Buyer hereunder with respect to their respective indemnities pursuant to this Agreement Section 15, resulting from any claim or other assertion of liability by third parties (“Claims”), shall be subject to the following terms and conditions:
(a) The Party seeking indemnification must, as a condition of indemnification, provide (the indemnifying “Indemnified Party”) must give the other Party with: i(the “Indemnifying Party”) prompt notice of any such Claim promptly after the reported or alleged defect, infringement, injury or claimIndemnified Party receives notice thereof; ii) provided that the opportunity failure to investigate such claim, control notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to the Indemnified Party except to the extent that the Indemnifying Party demonstrates that the defense of such claim, and settle such claim at its discretion; iii) all information obtained action is prejudiced by the Party seeking indemnification relating Indemnified Party’s failure to any complaint give such notice. Any notice of a Claim shall be accompanied by evidence demonstrating the Indemnified Party’s right or possible right to any claimed or actual defect or deficiency regarding any Productindemnification, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and ivincluding copies of supporting documents relevant thereto.
(b) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnifying Party shall have the option right to undertake, by counsel or other representatives of its own choosing, the defense of such Claim.
(c) In the event that the Indemnifying Party shall elect not to undertake such defense, or within ten (10) business days after notice of any such Claim from the Indemnified Party shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume the other Party's defense of such Claim at any time prior to settlement, compromise or final determination thereof).
(d) Notwithstanding anything in any such claim or suit with counsel reasonably satisfactory this Section 15.4 to the contrary: (i) if there is a reasonable probability that a Claim may materially and adversely affect the Indemnified Party other than as a result of money damages or other money payments, then the Indemnified Party shall have the right, at its own cost and expense, to participate in the defense, compromise or settlement of the Claim; (ii) the Indemnifying Party shall not, without the Indemnified Party. No settlement or compromise shall be binding on a Party hereto without its prior ’s written consent, which settle or compromise any Claim or consent shall to entry of any judgment that does not be unreasonably withheld. Each Party shall, include as an unconditional term thereof the giving by the claimant or the plaintiff to the extent allowed Indemnified Party of a release from all liability in respect of such Claim; and (iii) in the event that the Indemnifying Party undertakes defense of any Claim, the Indemnified Party, by lawcounsel or other representative of its own choosing and at its sole cost and expense, regard as Confidential Information all matters referenced in shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Claim, and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such Claim.
(e) After the Closing, the rights of the Parties under this paragraph Except as otherwise provided, neither Party Section 15 shall be liable the sole and exclusive remedy of the Parties for any special, incidental, indirect or consequential damages arising out of or relating to this Agreementthe matters described in Sections 15.2 and 15.3; provided, provided however, this that the foregoing limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementfraud.
Appears in 1 contract
Samples: Asset Purchase Agreement
Conditions of Indemnification. When The obligations and liabilities of the Sellers, the Company and the Purchaser, with respect to Claims resulting from the assertion of liability by third parties, shall be subject to the following terms and conditions:
(1) The party hereto seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must, as a condition of indemnification, provide "Indemnitee") will give the indemnifying Party with: iother party hereto (the "Indemnitor") prompt notice of any such Claim reasonably promptly after the reported Indemnitee receives notice thereof, and the Indemnitor will undertake the defense thereof by representatives of its own choosing.
(2) In the event that the Indemnitor, within ten (10) business days after notice of any such Claim, fails to defend such Claim, the Indemnitee will (upon giving written notice to the Indemnitor) have the right, but not the obligation, to undertake the defense, compromise or alleged defectsettlement of such Claim on behalf of and for the account and risk of the Indemnitor, infringement, injury or claim; ii) subject to the opportunity right of the Indemnitor to investigate such claim, control assume the defense of such claimClaim at any time prior to settlement, compromise or final determination thereof.
(3) Anything in this Section to the contrary notwithstanding, if there is a reasonable probability that a Claim may materially and settle such claim at its discretion; iii) all information obtained by adversely affect the Party seeking indemnification relating to any complaint Indemnitee other than as a result of money damages or to any claimed or actual defect or deficiency regarding any Productother money payments, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party Indemnitee shall have the option right to assume defend, compromise or settle such Claim, in good faith, on behalf of and for the other Partyaccount and risk of the Indemnitor. However, the Indemnitee shall not, without the Indemnitor's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, settle or compromise any Claim or consent to entry of any judgment which consent shall does not be unreasonably withheld. Each Party shallinclude an unconditional release from all liability in respect of such Claim, other than liability specified in the settlement, from the claimant or plaintiff to the Indemnitor and the Indemnitee. To the greatest extent allowed by lawreasonably possible, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party the parties shall be liable for any special, incidental, indirect attempt to obtain general releases from such plaintiff or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementclaimant.
Appears in 1 contract
Samples: Acquisition Agreement (China Resources Development Inc)
Conditions of Indemnification. When seeking indemnification under ----------------------------- this Agreement the Party seeking indemnification must, as a condition of indemnification, provide the indemnifying Party with: i) prompt notice of the reported With respect to any actual or alleged defect, infringement, injury or claim; ii) the opportunity to investigate such potential claim, control any written demand, the defense commencement of any action, or the occurrence of any other event which involves any matter or related series of matters (a "Claim") against which a party hereto is indemnified (the "Indemnified Party") by the other party (the "Indemnifying Party") under 36 18 Section 4.1 or 4.2 hereof:
4.3.1. Promptly after the Indemnified Party first receives written documents pertaining to the Claim, or if such Claim does not involve a third party Claim (a "Third Party Claim"), promptly after the Indemnified Party first has actual knowledge of such claimClaim, the Indemnified Party shall give notice to the Indemnifying Party of such Claim in reasonable detail and settle stating the amount involved, if known, together with copies of any such claim at its discretion; iii) all information obtained by written documents.
4.3.2. If the Claim involves a Third Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any ProductClaim, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as then the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnifying Party shall have the option to assume right, at its sole cost, expense and ultimate liability regardless of the other Party's defense in any such claim or suit with outcome, and through counsel of its choice (which counsel shall be reasonably satisfactory to the other Indemnified Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall), to the extent allowed by lawlitigate, regard as Confidential Information all matters referenced in this paragraph Except as defend, settle or otherwise provided, neither attempt to resolve such Third Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this AgreementClaim; provided, however, this limitation shall not apply -------- ------- that if in the Indemnified Party's reasonable judgment a conflict of interest may exist between the Indemnified Party and the Indemnifying Party with respect to losses arising from such Third Party claims Claim, then the Indemnified Party shall be entitled to select counsel of its own choosing, reasonably satisfactory to the Indemnifying Party, in which event the Indemnifying Party shall be obligated to pay the fees and expenses of such counsel. Notwithstanding the preceding sentence, the Indemnified Party may elect, at any time and at the Indemnified Party's sole cost, expense and ultimate liability, regardless of the outcome, and through counsel of its choice, to litigate, defend, settle or otherwise attempt to resolve such Third Party Claim. If the Indemnified Party so elects (for which reasons other than the Indemnifying Party's failure or refusal to provide a party is indemnified defense to such Third Party Claim), then the Indemnifying Party shall have no obligation to indemnify the Indemnified Party with respect to such Third Party Claim, but such disposition will be without prejudice to any other right the Indemnified Party may have to indemnification under Section 4.1 or 4.2 hereof, regardless of the terms outcome of this agreementsuch Third Party Claim. If the Indemnifying Party fails or refuses to provide a defense to any Third Party Claim, then the Indemnified Party shall have the right to undertake the defense, compromise or settlement of such Third Party Claim, through counsel of its choice, on behalf of and for the account and at the risk of the Indemnifying Party, and the Indemnifying Party shall be obligated to pay the costs, expenses and attorney fees incurred by the Indemnified Party in connection with such Third Party Claim. In any event, Buyer and Seller shall fully cooperate with each other and their respective counsel in connection with any such litigation, defense, settlement or other attempted resolution.
Appears in 1 contract
Samples: Stock Purchase Agreement (Next Generation Media Corp)
Conditions of Indemnification. When The obligations and liabilities of the Owners and Group 1 hereunder with respect to their respective indemnities pursuant to this Article IX resulting from any claim or other assertion of liabilities by third parties (hereinafter called collectively "Claims"), shall be subject to the following terms and conditions:
(a) the party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Claim 10 business days after the reported or alleged defectIndemnified Party receives notice thereof (provided that failure to give notice within such 10 day period does not relieve the Indemnifying Party of his obligations to indemnify the Indemnified Party hereunder, infringement, injury or claim; iiexcept to the extent that such Indemnifying Party is harmed by the failure of the Indemnified Party to provide timely notice);
(b) the opportunity Indemnifying Party shall have the right to investigate such claimundertake, control by counsel or other representatives of its own choosing, the defense of such claim, and settle such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party shall have the option to assume the other Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this AgreementClaim; provided, however, this limitation if a Claim is made against Group 1, then Group 1 shall have the right to control the defense of the Claim;
(c) if the Indemnifying Party shall elect not apply -------- ------- to losses arising undertake such defense, or within a reasonable time after notice of any such Claim from Third the Indemnified Party claims shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Claim, by counsel or other representatives of its own choosing, on behalf of and for which a party is indemnified under the terms account and risk of this agreement.the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such Claim at any time prior to settlement, compromise or final determination thereof);
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of the Stockholder and the Buyer hereunder with respect to their respective indemnities pursuant to this ARTICLE 11, resulting from any Third Party Claim shall be subject to the following terms and conditions:
(a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must, as a condition of indemnification, provide "INDEMNIFIED PARTY") must give the indemnifying Party with: iother party (the "INDEMNIFYING PARTY") prompt notice of any Third Party Claim which is asserted against, resulting to, imposed upon or incurred by the reported Indemnified Party and which may give rise to liability of the Indemnifying Party pursuant to this ARTICLE 11, stating (to the extent known or alleged defect, infringement, injury or claim; iireasonably anticipated) the opportunity nature and basis of such Third Party Claim and the amount thereof; PROVIDED that the failure to investigate give such claimnotice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual material damage by reason of such failure.
(b) Subject to SECTION 11.05(C) below, control the Indemnifying Party shall have the right to undertake, by counsel or other representatives of its own choosing, the defense of such claimThird Party Claim at the Indemnifying Party's risk and expense.
(c) In the event that (i) the Indemnifying Party shall elect not to undertake such defense, and settle (ii) within a reasonable time after notice from the Indemnified Party of any such claim at its discretion; Third Party Claim, the Indemnifying Party shall fail to undertake to defend such Third Party Claim, (iii) all information obtained by there is a reasonable probability that such Third Party Claim may materially and adversely affect the Indemnified Party seeking indemnification relating to any complaint other than as a result of money damages or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Productother money payments, or involving Marketer in connection with Marketer's relationship with Manufacturer; and (iv) there is a reasonable probability that the amount of Losses asserted under such additional information and assistance as Third Party Claim may exceed the indemnifying Indemnifying Party's obligations under this ARTICLE 11, then the Indemnified Party may reasonably require (upon further written notice to defend against such claim. The indemnifying Party the Indemnifying Party) shall have the option right to assume undertake the defense, compromise or settlement of such Third Party Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party; PROVIDED, HOWEVER, that if the Indemnified Party undertakes defense of such Third Party Claim under clause (iv) above, the Indemnified Party shall not, without the Indemnifying Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, consent (which consent shall not be unreasonably withheld), settle such Third Party Claim if the Indemnifying Party will be responsible for any amounts under such settlement. Each In the event that the Indemnified Party shallundertakes the defense of a Third Party Claim under this SECTION 11.05(C), the Indemnifying Party shall pay to the extent allowed Indemnified Party, in addition to the other sums required to be paid hereunder, the reasonable costs and expenses incurred by lawthe Indemnified Party in connection with such defense, regard compromise or settlement as Confidential Information all matters referenced and when such costs and expenses are so incurred.
(d) Anything in this paragraph Except as otherwise providedSECTION 11.05 to the contrary notwithstanding, neither (i) the Indemnifying Party shall be liable for not, without the Indemnified Party's written consent, settle or compromise such Third Party Claim or consent to entry of any specialjudgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such Third Party Claim in form and substance satisfactory to the Indemnified Party; (ii) in the event that the Indemnifying Party undertakes defense of such Third Party Claim, incidentalthe Indemnified Party, indirect by counsel or consequential damages arising out other representative of its own choosing and at its sole cost and expense, shall have the right to participate in the defense, compromise or relating settlement thereof and each party and its counsel and other representatives shall cooperate with the other party and its counsel and representatives in connection therewith; and (iii) in the event that the Indemnifying Party undertakes defense of such Third Party Claim, the Indemnifying Party shall have an obligation to this Agreement; providedkeep the Indemnified Party informed of the status of the defense of such Third Party Claim and furnish the Indemnified Party with all documents, howeverinstruments and information that the Indemnified Party shall reasonably request in connection therewith.
(e) With respect to the indemnification obligations set forth in Section 11.04 regarding Environmental Costs which become Shared Environmental Costs, this limitation the Parties shall cooperate to effectuate the successful completion of remediation or corrective action in compliance with Environmental Laws. The Buyer shall control and lead all such remediation or corrective actions which give rise to Shared Environmental Costs. Upon discovery of any condition it reasonably believes will require remediation or corrective action giving rise to Shared Environmental Costs, Buyer shall promptly notify and afford Stockholder an opportunity to review and approve its proposed remediation or corrective actions, which Stockholder approval shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementbe unreasonably withheld.
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of Seller and of Buyer hereunder with respect to their respective indemnities pursuant to this ARTICLE 17, resulting from any claim or other assertion of liability by third parties (hereinafter called collectively, "CLAIMS"), shall be subject to the following terms and conditions:
(a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"INDEMNIFIED PARTY") must give the other party or parties, as a condition the case may be (the "INDEMNIFYING PARTY"), notice of indemnificationany such Claim promptly after the Indemnified Party receives notice thereof, provide and the indemnifying Indemnified Party with: imust give the Indemnifying Party such information with respect to such Claim as the Indemnifying Party may reasonably request;
(b) prompt The Indemnifying Party shall have the right, but not the obligation, exercisable by written notice to the Indemnified Party within 30 days of receipt of notice of the reported Claim, to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claimclaim and, and settle subject to the other provisions of this SECTION 17.5, control the settlement of such claim at its discretion; iiiClaim;
(c) all information obtained by In the event that the Indemnifying Party seeking indemnification relating shall not elect to any complaint or to any claimed or actual defect or deficiency regarding any Productundertake such defense within the time provided, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right to undertake the defense, compromise or settlement of such Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such Claim at any time prior to settlement, compromise or final determination thereof); and
(d) If there is a reasonable probability that a Claim may materially and adversely affect the Indemnified Party other than as a result of money damages or other money payments, (i) the Indemnified Party shall have the right, at its own cost and expense, to participate in the defense, compromise or settlement of the Claim, (ii) the Indemnifying Party shall not, without the Indemnified Party's defense in written consent, settle or compromise any such claim Claim or suit with counsel reasonably satisfactory consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such Claim, and (iii) in the event that the Indemnifying Party undertakes defense of any Claim, the Indemnified Party, by counsel or other Partyrepresentative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Claim and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such Claim.
(e) In the event a claim for indemnification is made by Buyer based on an alleged breach by Seller of SECTION 3.5 or 3.6 (an "Infringement Claim"), in lieu of the procedures set forth in SECTION 17.5(d), the following procedures shall apply: Buyer shall have the right to participate in (but not control), at its expense, the defense of any Infringement Claim that Seller is defending as provided in this Agreement. No Buyer shall cooperate with Seller in a reasonable way to facilitate the settlement or compromise defense of such Infringement Claim, and shall not acknowledge the validity of any alleged Infringement Claim or of any patent, copyright or any third party, or otherwise make statements that could reasonably be binding on a Party hereto expected to have the effect of hampering or undermining Seller's defense or settlement of the Infringement Claim. Seller shall not, without its Buyer's prior written consent, which consent shall not be unreasonably withheld. Each Party shallenter into any compromise or settlement that (i) commits Buyer to take, or forbear to take, any action, other than the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable payment of a reasonable royalty or other reasonable compensation for any special, incidental, indirect or consequential damages arising out the use of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims Intellectual Property Rights or (ii) does not obtain for Buyer the right to continued use of the allegedly infringing information unless Seller has (y) procured for Buyer the right to continue using such Third Party Intellectual Property Rights or (z) provided instructions to replace or modify the same so that it is not subject to such Infringement Claim and is functionally equivalent, in each case in clauses (i) and (ii), upon commercially reasonable terms for the industries in which a party is indemnified under the terms of this agreementEnterprise Division participates.
Appears in 1 contract
Conditions of Indemnification. When seeking indemnification under ----------------------------- this Agreement The obligations and liabilities of Seller Parent, Company, Parent and Buyer with respect to Buyer Claims or Seller Claims (collectively, "Claims") made by third parties shall be subject to the Party seeking indemnification must, as a condition of indemnification, provide following terms and conditions:
(a) The indemnified party shall give the indemnifying Party with: i) party prompt notice of any such Claim, and the reported indemnifying party shall have the right to undertake the defense thereof by representatives chosen by it;
(b) If the indemnifying party, within a reasonable time after notice of any such Claim, fails to defend the indemnified party against which such Claim has been asserted, the indemnified party shall (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or alleged defect, infringement, injury or claim; ii) settlement of such Claim on behalf of and for the opportunity account and risk of the indemnifying party subject to investigate such claim, control the right of the indemnifying party to assume the defense of such claimClaim at any time prior to settlement, compromise or final determination thereof; and
(c) Anything in this Article X to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and settle such claim at its discretion; iii) all information obtained by adversely affect the Party seeking indemnification relating to any complaint indemnified party other than as a result of money damages or to any claimed or actual defect or deficiency regarding any Productother money payments, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party indemnified party shall have the option right, at its own cost and expense, to assume defend, compromise or settle such Claim, and (ii) the other Party's defense indemnifying party shall not, without the written consent of the indemnified party, settle or compromise any Claim or consent to the entry of any judgment in any such claim manner that admits wrongdoing or suit with counsel reasonably satisfactory any violation of law or which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the other Party. No settlement or compromise shall be binding on indemnified party a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, release from all liability in respect to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementsuch Claim.
Appears in 1 contract
Samples: Asset Purchase Agreement (Fahnestock Viner Holdings Inc)
Conditions of Indemnification. When The obligations and liabilities of the parties with respect to their respective indemnities pursuant to this Section 8, resulting from any claim or other assertion of liability by third parties (hereinafter called collectively, "Claims"), shall be subject to the following terms and conditions:
(a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Claim promptly after the reported Indemnified Party receives notice thereof.
(b) The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claim.
(c) In the event that the Indemnifying Party shall elect not to undertake such defense or, within a reasonable time after notice of any such Claim from the Indemnified Party, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnified Party) shall have the right to undertake the defense, compromise or settlement of such Claim, by counsel or other representatives of its own choosing, on behalf of and settle for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such claim Claim at its discretion; iiiany time prior to settlement, compromise or final determination thereof).
(d) all information obtained by Anything in this Section 8 to the contrary notwithstanding, (i) if there is reasonable probability that a Claim may materially and adversely affect the Indemnified Party seeking indemnification relating to any complaint other than as a result of money damages or to any claimed or actual defect or deficiency regarding any Productother money payments, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the Claim; (ii) the Indemnifying Party shall not, without the Indemnified Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which settle or compromise any Claim or consent shall to entry of any judgment that does not be unreasonably withheld. Each Party shall, include as an unconditional term thereof the giving by the claimant or the plaintiff to the extent allowed Indemnified Party of a release from all liability in respect of such Claim; and (iii) in the event that the Indemnifying Party undertakes defense of any Claim, the Indemnified Party, by lawcounsel or other representative of its own choosing and at its sole cost and expense, regard as Confidential Information all matters referenced in this paragraph Except as otherwise providedshall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Claim, neither and the Indemnifying Party and the Indemnified Party and their representative counsel or other representatives shall be liable for any special, incidental, indirect or consequential damages arising out of or relating cooperate with respect to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementsuch Claim.
Appears in 1 contract
Samples: Asset Sale and Purchase Agreement (Hytk Industries Inc)
Conditions of Indemnification. When The obligations and liabilities of Seller and of Buyer hereunder with respect to their respective indemnities pursuant to this Article 17, resulting from any claim or other assertion of liability by third parties (hereinafter called collectively, "Claims"), shall be subject to the following terms and conditions:
(a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition the case may be (the "Indemnifying Party"), notice of indemnificationany such Claim promptly after the Indemnified Party receives notice thereof, provide and the indemnifying Indemnified Party with: imust give the Indemnifying Party such information with respect to such Claim as the Indemnifying Party may reasonably request; 18
(b) prompt The Indemnifying Party shall have the right, but not the obligation, exercisable by written notice to the Indemnified Party within 30 days of receipt of notice of the reported Claim, to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claimclaim and, and settle subject to the other provisions of this Section 17.5, control the settlement of such claim at its discretion; iiiClaim;
(c) all information obtained by In the event that the Indemnifying Party seeking indemnification relating shall not elect to any complaint or to any claimed or actual defect or deficiency regarding any Productundertake such defense within the time provided, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right to undertake the defense, compromise or settlement of such Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such Claim at any time prior to settlement, compromise or final determination thereof); and
(d) If there is a reasonable probability that a Claim may materially and adversely affect the Indemnified Party other than as a result of money damages or other money payments, (i) the Indemnified Party shall have the right, at its own cost and expense, to participate in the defense, compromise or settlement of the Claim, (ii) the Indemnifying Party shall not, without the Indemnified Party's defense in written consent, settle or compromise any such claim Claim or suit with counsel reasonably satisfactory consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such Claim, and (iii) in the event that the Indemnifying Party undertakes defense of any Claim, the Indemnified Party, by counsel or other Partyrepresentative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Claim and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such Claim.
(e) In the event a claim for indemnification is made by Buyer based on an alleged breach by Seller of Section 3.5 or 3.6 (an "Infringement Claim"), in lieu of the procedures set forth in Section 17.5(d), the following procedures shall apply: Buyer shall have the right to participate in (but not control), at its expense, the defense of any Infringement Claim that Seller is defending as provided in this Agreement. No Buyer shall cooperate with Seller in a reasonable way to facilitate the settlement or compromise defense of such Infringement Claim, and shall not acknowledge the validity of any alleged Infringement Claim or of any patent, copyright or any third party, or otherwise make statements that could reasonably be binding on a Party hereto expected to have the effect of hampering or undermining Seller's defense or settlement of the Infringement Claim. Seller shall not, without its Buyer's prior written consent, which consent shall not be unreasonably withheld. Each Party shallenter into any compromise or settlement that (i) commits Buyer to take, or forbear to take, any action, other than the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable payment of a reasonable royalty or other reasonable compensation for any special, incidental, indirect or consequential damages arising out the use of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims Intellectual Property Rights or (ii) does not obtain for Buyer the right to continued use of the allegedly infringing information unless Seller has (y) procured for Buyer the right to continue using such Third Party Intellectual Property Rights or (z) provided instructions to replace or modify the same so that it is not subject to such Infringement Claim and is functionally equivalent, in each case in clauses (i) and (ii), upon commercially reasonable terms for the industries in which a party is indemnified under the terms of this agreementConsulting Division participates.
Appears in 1 contract
Samples: Asset Sale and Purchase Agreement (Delsoft Consulting Inc)
Conditions of Indemnification. When seeking indemnification under ----------------------------- this Agreement Subject to the provisions of Section 10.4, the obligations and liabilities of Seller, in the case of Section 10.2(a), and the Purchaser, in the case of Section 10.2(b), with respect to claims made by or against third parties ("Third Party seeking indemnification must, as a condition of indemnification, provide Claims") shall be subject to the indemnifying following terms and conditions:
(a) The person to whom such Third Party with: iClaim relates (the "Indemnified Party") will give the party from which indemnity is sought hereunder (the "Indemnifying Party") prompt notice of such Third Party Claim, (which notice in any event shall be given to the reported Indemnifying Party within 10 days of the Indemnified Party first becoming aware of the facts and circumstances that form the basis of such Third Party Claim), and the Indemnifying Party will (except as otherwise contemplated by the proviso to Section 10.3(b) hereof) assume the defense thereof by representatives chosen by it; provided, that the Indemnified Party shall be entitled (but not required) to participate in such action and to employ counsel at its own expense to assist in the handling of such Third Party Claim.
(b) If the Indemnifying Party, within a reasonable time after notice of any such Third Party Claim, fails to assume the defense thereof, the Indemnified Party shall (upon a subsequent 10 days' notice to the Indemnifying Party) have the right to undertake the defense or, with the consent of the Indemnifying Party, to undertake a compromise or alleged defectsettlement of such Third Party Claim on behalf of and for the account and risk of the Indemnifying Party, infringement, injury or claim; ii) subject to the opportunity right of the Indemnifying Party to investigate such claim, control assume the defense of such claimThird Party Claim at any time prior to the settlement, and settle such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint compromise or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claimfinal determination thereof. The indemnifying Indemnifying Party shall have the option to assume the other Party's defense in not be liable for any such claim compromise or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on of a Third Party hereto Claim effected without its prior written consent, which consent shall not be unreasonably withheldwithheld or delayed. Each During any period when the Indemnifying Party is contesting any such Third Party Claim in good faith, the Indemnified Party shall not pay, compromise or settle such Third Party Claim without the Indemnifying Party's consent; provided, that the Indemnified Party may nonetheless pay, compromise or settle such Third Party Claim without such consent during such period, in which event it shall, automatically and without any further action on its part, waive any right (whether or not pursuant to this Agreement) to indemnity in respect of all losses, liabilities, damages or expenses relating to such Third Party Claim.
(c) Anything in this Section 10.3 to the contrary notwithstanding, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), settle or compromise any Third Party Claim or consent to the entry of any judgment which settlement, compromise or consent imposes any future obligation on the Indemnified Party or which does not include as an unconditional term thereof the giving by the claimant and/or plaintiff to the Indemnified Party a release from all liabilities in respect of such Third Party Claim.
(d) The Indemnified Party shall, and shall cause its affiliates to, provide the Indemnifying Party with such assistance (without charge) as may reasonably be requested by the Indemnifying Party in connection with any indemnification or defense provided for herein, including, without limitation, providing the Indemnifying Party with such information, documents and records and reasonable access to the extent allowed by law, regard services of and consultations with such personnel of the Indemnified Party or its affiliates as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither the Indemnifying Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this Agreement; provided, however, this limitation reasonably deem necessary (provided that such access shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under unreasonably interfere with the terms performance of this agreementthe duties performed by or responsibilities of such personnel).
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of the Principal Stockholders and of Buyer hereunder with respect to their respective indemnities pursuant to this Section 9.1 resulting from any claim or other assertion of liability by third parties (hereinafter called collectively "Claims"), shall be subject to the following terms and conditions:
(i) The Buyer Indemnitee or Seller Indemnitee seeking indemnification under ----------------------------- (the "Indemnified Party") must give the other party or parties (it being understood that the Designated Stockholder shall receive all notices pursuant to this Agreement the Party seeking indemnification mustSection 9.1(g)), as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt written notice of any such Claim reasonably promptly after the reported Indemnified Party receives notice thereof, provided that if such notice is actually served within the applicable time period, the failure to so reasonably promptly notify shall not release the Indemnifying Party from any liability which they may have to the Indemnified Party except to the extent that the failure to so reasonably promptly notify prejudices the Indemnifying Party in any material respect. Such notice shall state the amount or alleged defect, infringement, injury or claim; estimated amount of such Claim to the extent reasonably practicable.
(ii) The Indemnifying Party shall have the opportunity right to investigate such claimundertake, control by counsel or other representatives of its own choosing and reasonably acceptable to the Indemnified Party, the defense of such claim, and settle such claim at its discretion; Claim.
(iii) all information obtained by In the event that the Indemnifying Party seeking indemnification relating shall elect not to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Productundertake such defense, or involving Marketer in connection with Marketer's relationship with Manufacturer; within 30 days after delivery of notice of any such Claim from the Indemnified Party shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party.
(iv) such additional information and assistance as Anything in this Section 9.1(g) to the indemnifying Party may reasonably require to defend against such claim. The indemnifying contrary notwithstanding:
(A) the Indemnified Party shall have the option right, at its own cost and expense, to assume have its own counsel to participate in the other defense, compromise or settlement of the Claim;
(B) the Indemnified Party shall not settle a Claim for which it is indemnified by the Indemnifying Party without the written consent of the Indemnifying Party, unless the Indemnifying Party elects in writing not to undertake defense or fails to defend such Claim pursuant to Section 9.1(g)(iii);
(C) the Indemnifying Party shall not, without the Indemnified Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, consent (which consent shall not be unreasonably withheld. Each Party shall), settle or compromise any Claim or consent to entry of any judgment which does not in- clude as an unconditional term thereof the giving by the claimant or the plaintiff to the extent allowed Indemnified Party of a release from all liability in respect of such Claim;
(D) the Indemnified Party, by lawcounsel or other representative of its own choosing and at its sole cost and expense, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Claim and the Indemnifying Party and the Indemnified Party and their respective counsel shall reasonably cooperate with respect to such Claim; and
(E) the Indemnifying Party shall be liable for any specialnot, incidental, indirect or consequential damages arising out without the prior written consent of or relating to this Agreement; provided, however, this limitation the Indemnified Party (which consent shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under be unreasonably withheld), take any measure or step that imposes an unreasonable burden or encumbrance upon the terms operation or conduct of this agreementthe Business.
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of the Shareholder and the Purchaser hereunder with respect to their respective indemnities pursuant to this Article VIII resulting from any claim or other assertion of liabilities by third parties (hereinafter called collectively "Claims"), shall be subject to the following terms and conditions:
(a) the party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Claim 20 days after the reported or alleged defect, infringement, injury or claim; iiIndemnified Party receives notice thereof;
(b) the opportunity Indemnifying Party shall have the right to investigate such claimundertake, control by counsel or other representatives of its own choosing, the defense of such claim, and settle such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party shall have the option to assume the other Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this AgreementClaim; provided, however, if a Claim is made against the Purchaser which exceeds the value of the Indemnification at such time, the Purchaser shall have the right to control the defense of the Claim;
(c) in the event that the Indemnifying Party shall elect not to undertake such defense, or within a reasonable time after notice of any such Claim from the Indemnified Party shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such Claim at any time prior to settlement, compromise or final determination thereof);
(d) anything in this limitation Section 8.3 to the contrary notwithstanding: (A) the Indemnified Party shall have the right, at its own cost and expense, to have its own counsel to protect its own interests and participate in the defense, compromise or settlement of the Claim; (B) the Indemnifying Party shall not, without the Indemnified Party's written consent, settle or compromise any Claim or consent to entry of any judgement which does not apply -------- ------- include as an unconditional term thereof the giving by the claimant or the plaintiff to losses arising the Indemnified Party of a release from Third all liability in respect of such Claim; and (C) the Indemnified Party, by counsel or other representatives of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party claims for which a party is indemnified under and its counsel or other representatives concerning such Claim, and the terms of this agreementIndemnifying Party and the Indemnified Party and their respective counsel shall cooperate with respect to such Claim.
Appears in 1 contract
Samples: Stock Purchase Agreement (Diversified Food Group Inc)
Conditions of Indemnification. When The obligations and liabilities of Seller under Section 11.03 hereof and the obligations and liabilities of Buyer under Section 11.04 hereof with respect to Claims relating to third parties shall be subject to the following terms and conditions:
(a) A party seeking indemnification under ----------------------------- this Agreement ("Indemnified Party") will give the Party seeking party required to provide such indemnification must, as a condition of indemnification, provide (the indemnifying Party with: i"Indemnifying Party") prompt notice of any such Claim, and thereafter, provided that the reported Indemnifying Party acknowledges in writing to the Indemnified Party that the Indemnifying Party is obligated to indemnify the Indemnified Party against such Claim, the Indemnifying Party will be permitted to undertake the defense thereof by representatives chosen by it. The failure to provide any such notice shall not excuse the Indemnifying Party from its obligations hereunder, provided that the Claim shall be reduced by any loss to the Indemnifying Party resulting from such failure to provide notice.
(b) If the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to acknowledge in writing its obligation to indemnify the Indemnified Party with respect to such Claim or alleged defectfails to diligently prosecute or settle such Claim, infringementthe Indemnified Party will have the right to undertake the defense, injury compromise or claim; ii) settlement of such Claim on behalf of and for the opportunity account and risk of the Indemnifying Party, subject to investigate such claim, control the right of the Indemnifying Party to participate at its expense in the defense of such claimClaim at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 11.05 to the contrary
(i) if there is a reasonable probability that a Claim may materially and settle such claim at its discretion; iii) all information obtained by adversely affect an Indemnified Party other than as a result of money damages or other money payments, the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume defend, and with the other consent of the Indemnifying Party's defense in , to compromise or settle such Claim; and (ii) the Indemnifying Party shall not, without the written consent of the Indemnified Party, its successors and assigns settle or compromise any such claim Claim or suit with counsel reasonably satisfactory consent to the other Party. No settlement entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, the plaintiff to the extent allowed by lawIndemnified Party, regard as Confidential Information of a release from all matters referenced liability in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out respect of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementsuch Claim.
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of Seller and of Buyer hereunder with respect to their respective indemnities pursuant to this Article 9, resulting from any Losses, shall be subject to the following terms and conditions:
(a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must“Indemnified Party”) must give the other party or parties, as a condition of indemnificationthe case may be (the “Indemnifying Party”), provide the indemnifying Party with: i) prompt notice of any such Losses promptly after the reported Indemnified Party receives notice thereof; provided, that the failure to give such notice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure.
(b) The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing (reasonably acceptable to the Indemnified Party), infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claimLosses at the Indemnifying Party’s risk and expense; provided, and settle such claim at its discretion; iii) all information obtained by however, that the Indemnifying Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but shall not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as have the indemnifying Party may reasonably require right to defend against such claim. The indemnifying Losses, and the provisions of Section 9.05(c) shall apply with respect to the defense of such Losses, if Buyer reasonably determines (after consultation with Seller) that the amount of such Losses are reasonably expected to exceed the limitations of liability of the Indemnifying Party set forth in Section 9.04.
(c) In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the Indemnified Party of any such Losses, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the option right to undertake the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume the other Party's defense in of such Losses at any such claim time prior to settlement, compromise or suit final determination thereof (with counsel reasonably satisfactory acceptable to the other Indemnified Party. No settlement or compromise )).
(d) Anything in this Section 9.05 to the contrary notwithstanding, (i) the Indemnifying Party shall be binding on a Party hereto not, without its prior the Indemnified Party’s written consent, consent (which consent shall not be unreasonably withheld. Each , conditioned or delayed), settle or compromise any Losses or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party shallof a release from all liability in respect of such Losses in form and substance reasonably satisfactory to the Indemnified Party, (ii) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnified Party, by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Losses and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such Losses, (iii) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnifying Party shall have an obligation to keep the Indemnified Party reasonably informed of the status of the defense of such Losses and furnish the Indemnified Party with all documents, instruments and information that the Indemnified Party shall reasonably request in connection therewith, and (iv) in the event that both the Indemnified Party and the Indemnifying Party are parties (directly or through interpleader) to any Losses giving rise to indemnification hereunder and the Indemnified Party is advised by counsel that there is a conflict of interest in the representation of both the Indemnified Party and the Indemnifying Party by one firm of counsel, the Indemnified Party shall be entitled to assume, at the sole cost and expense of the Indemnifying Party, the defense, compromise and settlement (subject to clause (i) above) of such Loss with one counsel (in addition to local counsel) reasonably satisfactory to the Indemnifying Party.
(e) In the event that an Indemnified Party has a good faith basis for a claim for indemnification which does not involve a claim against it by a third party (a “Direct Claim”), the Indemnified Party shall notify the Indemnifying Party in writing of such Direct Claim with reasonable promptness, specifying, to the extent allowed by lawknown, regard as Confidential Information all matters referenced in this paragraph Except as otherwise providedthe nature, neither Party shall be liable for any specialcircumstances and amount of such Direct Claim, incidental, indirect including with particularity the specific representation and warranty or consequential damages arising out of or relating covenant and agreement alleged to this Agreementhave been breached; provided, however, this limitation that the failure to give such notice shall not apply -------- ------- affect the rights of the Indemnified Party hereunder except to losses arising the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure. If the Indemnifying Party notifies the Indemnified Party that it disputes an Indemnified Party’s right of indemnification with respect to a particular Direct Claim, the parties shall use their reasonable efforts to negotiate a resolution of such dispute promptly. Except to the extent of the limitations on indemnification set forth in this Article 9, nothing in this Section 9.05(e) shall be deemed to prevent any Indemnified Party from Third initiating litigation under this Agreement with respect to any Direct Claim disputed by the Indemnifying Party claims for which a party is indemnified under the terms purpose of this agreementestablishing the Indemnified Party’s right to indemnification hereunder.
Appears in 1 contract
Conditions of Indemnification. When seeking indemnification The obligations and liabilities of Buyer and Sellers as indemnifying parties (each, an "Indemnifying Party") to indemnify Sellers and Buyer, respectively (each, an "Indemnified Party"), under ----------------------------- this Agreement Section 6.2 with respect to Claims made by third parties shall be subject to the following terms and conditions:
(a) The Indemnified Party seeking indemnification must, as a condition of indemnification, provide shall give the indemnifying Indemnifying Party with: i) prompt notice of any such Claim, and the reported Indemnifying Party shall have the right to undertake the defense thereof by representatives chosen by it;
(b) If the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend any Indemnified Party against which such Claim has been asserted, such Indemnified Party shall (upon further notice to the Indemnifying Party) have the right to undertake the defense, compromise or alleged defectsettlement of such Claim on behalf of and for the account and risk of the Indemnifying Party, infringement, injury or claim; ii) subject to the opportunity right of the Indemnifying Party to investigate such claim, control assume the defense of such claimClaim at any time prior to settlement, compromise or final determination thereof; and
(c) Anything in this Section 6.3 to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and settle adversely affect an Indemnified Party other than as a result of money damages or other money payments, such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume defend, compromise or settle such Claim; provided, however, that if such Claim is settled without the other Indemnifying Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, consent (which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither ) such Indemnified Party shall be liable deemed to have waived all rights hereunder against such Indemnifying Party for any special, incidental, indirect or consequential money damages arising out of such Claim, and (ii) such Indemnifying Party shall not, without the written consent of such Indemnified Party, settle or relating compromise any Claim or consent to this Agreement; provided, however, this limitation shall the entry of any judgment that does not apply -------- ------- include as an unconditional term thereof the giving by the claimant or the plaintiff to losses arising such Indemnified Party a release from Third Party claims for which a party is indemnified under the terms of this agreementall liability in respect to such Claim.
Appears in 1 contract
Samples: Asset Purchase Agreement (Microleague Multimedia Inc)
Conditions of Indemnification. When The obligations and liabilities of Seller and of Purchaser hereunder with respect to their respective indemnities pursuant to this Section 6.2, resulting from any Losses, shall be subject to the following terms and conditions:
(i) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must“Indemnified Party”) must give the other party or parties, as a condition of indemnificationthe case may be (the “Indemnifying Party”), provide the indemnifying Party with: i) prompt notice of any such Losses promptly after the reported or alleged defect, infringement, injury or claimIndemnified Party receives notice thereof; provided that the failure to give such notice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure.
(ii) The Indemnifying Party shall have the opportunity right to investigate such claimundertake, control by counsel or other representatives of its own choosing (reasonably acceptable to the Indemnified Party), the defense of such claim, Losses at the Indemnifying Party’s risk and settle such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party shall have the option to assume the other Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this Agreementexpense; provided, however, that as a condition to the exercise of such right to undertake defense of such Losses, the Indemnifying Party shall, as between the Indemnifying Party and the Indemnified Party, assume the liability for such Losses, without regard to the limitations set forth in Section 6.2(c)(ii) or Section 6.2(c)(v), as applicable.
(iii) In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the Indemnified Party of any such Losses, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such Losses at any time prior to settlement, compromise or final determination thereof (with counsel reasonably acceptable to the Indemnified Party)). In such event, the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the costs and expenses incurred by the Indemnified Party in connection with such defense, compromise or settlement as and when such costs and expenses are so incurred.
(iv) Notwithstanding anything contained in this limitation Section 6.2(d) to the contrary, (a) if any third party alleges the right to or seeks any remedy other than money damages or other money payments, the Indemnified Party shall have the right, at the cost and expense of the Indemnifying Party, to participate in and direct the defense, compromise or settlement of the Losses, (b) the Indemnifying Party shall not, without the Indemnified Party’s written consent, settle or compromise any Losses or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such Losses in form and substance reasonably satisfactory to the Indemnified Party, (c) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnified Party, by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Losses and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such Losses, (d) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnifying Party shall have an obligation to keep the Indemnified Party informed of the status of the defense of such Losses and furnish the Indemnified Party with all documents, instruments and information that the Indemnified party shall reasonably request in connection therewith, and (e) in the event that both the Indemnified Party and the Indemnifying Party are parties (directly or through interpleader) to any Losses giving rise to indemnification hereunder and the Indemnified Party is advised by counsel that there is or may be a conflict of interest in the representation of both the Indemnified Party and the Indemnifying Party by one firm of counsel, the Indemnified Party shall be entitled to assume, at the sole cost and expense of the Indemnifying Party, the defense, compromise and settlement (subject to clause (b) of this Section 6.2(d)(iv) above) of such Loss with counsel (in addition to local counsel) reasonably satisfactory to the Indemnifying Party.
(v) In the event that an Indemnified Party has a good faith basis for a claim for indemnification which does not involve a claim against it by a third party (a “Direct Claim”), the Indemnified Party shall notify the Indemnifying Party in writing of such Direct Claim with reasonable promptness, specifying, to the extent known, the nature, circumstances and amount of such Direct Claim, including with particularity the specific representation and warranty or covenant and agreement alleged to have been breached; provided, that the failure to give such notice shall not apply -------- ------- affect the rights of the Indemnified Party hereunder except to losses arising the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure. If the Indemnifying Party notifies the Indemnified Party that it disputes an Indemnified Party’s right of indemnification with respect to a particular Direct Claim, the parties shall use their reasonable efforts to negotiate a resolution of such dispute promptly. Except to the extent of the limitations on indemnification set forth in this Section 6.2, nothing in this Section 6.2(d)(v) shall be deemed to prevent any Indemnified Party from Third initiating litigation under this Agreement with respect to any Direct Claim disputed by the Indemnifying Party claims for which a party is indemnified under the terms purpose of this agreementestablishing the Indemnified Party’s right to indemnification hereunder.
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of the Stockholder and Acquiror hereunder with respect to their respective indemnities pursuant to this Article XI, resulting from any Third Party Claim shall be subject to the following terms and conditions:
(a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party (the "Indemnifying Party"), as a condition of indemnification, provide the indemnifying Party with: i) prompt notice of any Third Party Claim which is asserted against, resulting to, imposed upon or incurred by the reported Indemnified Party and which may give rise to liability of the Indemnifying Party pursuant to this Article XI, stating (to the extent known or alleged defect, infringement, injury or claim; iireasonably anticipated) the opportunity nature and basis of such Third Party Claim and the amount thereof; provided that the failure to investigate give such claimnotice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual material damage by reason of such failure.
(b) Subject to Section 11.4(c) below, control the Indemnifying Party shall have the right to undertake, by counsel or other representatives of its own choosing, the defense of such claimThird Party Claim at the Indemnifying Party's risk and expense.
(c) In the event that (i) the Indemnifying Party shall elect not to undertake such defense, and settle (ii) within a reasonable time after notice from the Indemnified Party of any such claim at its discretion; Third Party Claim, the Indemnifying Party shall fail to undertake to defend such Third Party Claim, or (iii) all information obtained there is a reasonable probability that such Third Party Claim may materially and adversely affect the Indemnified Party other than as a result of money damages or other money payments, then the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Third Party Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party. In the event that the Indemnified Party undertakes the defense of a Third Party Claim under this Section 11.4(c), the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the reasonable costs and expenses incurred by the Indemnified Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketersuch defense, compromise or settlement as and when such costs and expenses are so incurred.
(d) Anything in this Section 11.4 to the contrary notwithstanding, (i) the Indemnifying Party shall not, without the Indemnified Party's relationship written consent, settle or compromise such Third Party Claim or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such Third Party Claim in form and substance satisfactory to the Indemnified Party; (ii) in the event that the Indemnifying Party undertakes defense of such Third Party Claim, the Indemnified Party, by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to participate in the defense, compromise or settlement thereof and each party and its counsel and other representatives shall cooperate with Manufacturerthe other party and its counsel and representatives in connection therewith; and iv(iii) in the event that - 38 - 47 the Indemnifying Party undertakes defense of such additional information and assistance as Third Party Claim, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnifying Party shall have an obligation to keep the option to assume Indemnified Party informed of the other Party's status of the defense of such Third Party Claim and furnish the Indemnified Party with all documents, instruments and information that the Indemnified party shall reasonably request in any such claim or suit with counsel reasonably satisfactory connection therewith.
(e) Neither the Stockholder nor Acquiror shall be liable to the other Party. No settlement or compromise shall in respect of any indemnification hereunder except to the extent that the aggregate amount of Losses, together with all other Losses of the party to be binding on a Party hereto without its prior written consentindemnified under this Agreement, is (i) in excess of One Hundred Thousand Dollars ($100,000) (the "Basket Amount"), except for indemnification for claims made pursuant to Section 11.2(c) which consent shall not be unreasonably withheld. Each Party shall, subject to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this Agreementsuch Basket Amount; provided, howeverthat once an indemnified party has incurred Losses in excess of the Basket Amount, this limitation such indemnified party shall not apply -------- ------- be indemnified for all Losses without regard to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementBasket Amount, and (ii) less than Seven Million Five Hundred Thousand Dollars ($7,500,000).
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of Mark XX xxxer Section 11.3 hereof and the obligations and liabilities of the Buyer and the Company under Section 11.4 hereof with respect to Claims relating to third parties shall be subject to the following terms and conditions:
(a) A party seeking indemnification under ----------------------------- this Agreement ("Indemnified Party") will give the Party seeking party required to provide such indemnification must, as a condition of indemnification, provide (the indemnifying Party with: i"Indemnifying Party") prompt notice of any such Claim, and thereafter the reported Indemnifying Party will undertake the defense thereof by representatives chosen by it (which counsel shall be reasonably acceptable to the Indemnified Parties).
(b) If the Indemnifying Party, within a reason able time after notice of any such Claim, fails to defend such Claim, the Indemnified Party will, upon further notice to the Indemnifying Party, have the right to undertake the defense, compromise or alleged defectsettlement of such Claim on behalf of and for the account and risk of the Indemnifying Party, infringement, injury or claim; ii) subject to the opportunity right of the Indemnifying Party to investigate such claim, control assume the defense of such claimClaim at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 11.6 to the contrary notwithstanding: (i) if there is a reasonable probability that a Claim may materially and settle such claim at its discretion; iii) all information obtained by adversely affect an Indemnified Party other than as a result of money damages or other money payments, the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume defend, and with the other consent of the Indemnifying Party's defense in , to compromise or settle such Claim; and (ii) the Indemnifying Party shall not, without the written consent of the Indemnified Party, its successors and assigns settle or compromise any such claim Claim or suit with counsel reasonably satisfactory consent to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, entry of any judgment which consent shall does not be unreasonably withheld. Each Party shall, to include as an unconditional term thereof the extent allowed giving by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreement.claimant
Appears in 1 contract
Conditions of Indemnification. When seeking indemnification The obligations and liabilities of the Plaintiffs under ----------------------------- this Agreement Section 8 hereof with respect to claims relating to third parties shall be subject to the Party seeking indemnification must, as a condition of indemnification, provide following terms and conditions:
(a) The Indemnified Parties will give the indemnifying Party with: i) Plaintiffs prompt notice of any such claims, and the reported Plaintiffs will assume the defense thereof by representatives chosen by them in consultation with the Indemnified Parties.
(b) The Plaintiffs shall not, without the written consent of the Indemnified Parties, settle or alleged defect, infringement, injury compromise any claim or claim; consent to the entry of any judgment that (i) does not include as an unconditional term thereof the giving by the claimant to the Indemnified Parties a release from all liability in respect of such claim or (ii) obligates the opportunity to investigate Indemnified Parties in any manner.
(c) If the Plaintiffs, within a reasonable time after notice of any such claim, control the defense of such claim, and settle such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require fail to defend against or, during such claim. The indemnifying Party defense, the Indemnified Parties decide, in good faith, that the Plaintiffs are not adequately defending such claims, after notice to the Plaintiffs with a reasonable opportunity for the Plaintiffs to cure any alleged inadequacy in the defense, the Indemnified Parties shall have the option right to assume undertake the defense, compromise or settle such claims at the risk, cost and expense of the Plaintiffs.
(d) If a claim(s) is brought by any or all of the eight individuals listed in Section 8 above and/or their representatives that may materially and adversely effect the Indemnified Parties other Party's defense in any than as a result of money damages or other money payments, the Indemnified Parties shall have the right, after consultation with the Plaintiffs, to defend, at the reasonable cost and expense of the Plaintiffs, and to compromise or settle such claim or suit claims with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consentconsent of the Plaintiffs, which consent shall not be unreasonably withheld.
(e) The Plaintiffs, on the one hand, and the Indemnified Parties, on the other hand, agree to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any claim, action, suit or proceeding brought by any third party. Each Party shallWhere counsel has been selected by the Plaintiffs, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party Indemnified Parties shall be liable for any special, incidental, indirect or consequential damages arising out entitled to rely upon the advice of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under such counsel in the terms conduct of this agreementthe defense.
Appears in 1 contract
Conditions of Indemnification. When seeking indemnification The obligations and liabilities of Buyer and Seller as indemnifying parties (each, an "Indemnifying Party") to indemnify Seller and Buyer, respectively (each, an "Indemnified Party"), under ----------------------------- this Agreement Section 6.2 with respect to Claims made by third parties shall be subject to the following terms and conditions:
(a) The Indemnified Party seeking indemnification must, as a condition of indemnification, provide shall give the indemnifying Indemnifying Party with: i) prompt notice of any such Claim, and the reported Indemnifying Party shall have the sole right to undertake the defense thereof by representatives chosen by it.
(b) If the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend any Indemnified Party against which such Claim has been asserted, such Indemnified Party shall (upon further notice to the Indemnifying Party) have the right to undertake the defense, compromise or alleged defectsettlement of such Claim on behalf of and for the account and risk of the Indemnifying Party, infringement, injury or claim; ii) subject to the opportunity right of the Indemnifying Party to investigate such claim, control assume the defense of such claimClaim at any time prior to settlement, compromise or final determination thereof; and
(c) Anything in this Section 6.3 to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and settle adversely affect an Indemnified Party other than as a result of money damages or other money payments, such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume defend, compromise or settle such Claim; provided, however, that if such Claim is settled without the other Indemnifying Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, consent (which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither ) such Indemnified Party shall be liable deemed to have waived all rights hereunder against such Indemnifying Party for any special, incidental, indirect or consequential money damages arising out of such Claim, and (ii) such Indemnifying Party shall not, without the written consent of such Indemnified Party, settle or relating compromise any Claim or consent to this Agreement; provided, however, this limitation shall the entry of any judgment that does not apply -------- ------- include as an unconditional term thereof the giving by the claimant or the plaintiff to losses arising such Indemnified Party a release from Third Party claims for which a party is indemnified under the terms of this agreementall liability in respect to such Claim.
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of Seller and of Buyer hereunder with respect to their respective indemnities pursuant to this Section 6, resulting from any claim or other assertion of liability by third parties (hereinafter called collectively, "Claims"), shall be subject to the following terms and conditions:
(a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Claim promptly after the reported Indemnified Party receives notice thereof.
(b) The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claim, and settle Claim.
(c) In the event that the Indemnifying Party shall elect not to undertake such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Productdefense, or involving Marketer within a reasonable time after notice of any such Claim from the Indemnified Party shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such Claim at any time prior to settlement, compromise or final determination thereof).
(d) Anything in connection with Marketer's relationship with Manufacturer; this Section 6.4 to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and iv) such additional information and assistance adversely affect the Indemnified Party other than as a result of money damages or other money payments, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the Claim; (ii) the Indemnifying Party shall not, without the Indemnified Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, settle or compromise any Claim or consent to entry of any judgment which consent shall does not be unreasonably withheld. Each Party shall, include as an unconditional term thereof the giving by the claimant or the plaintiff to the extent allowed Indemnified Party of a release from all liability in respect of such Claim, and (iii) in the event that the Indemnifying Party undertakes defense of any Claim, the Indemnified Party, by lawcounsel or other representative of its own choosing and at its sole cost and expense, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither shall have the right to consult with the Indemnfiying Party and its counsel or other representatives concerning such Claim and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall be liable for any special, incidental, indirect or consequential damages arising out of or relating cooperate with respect to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementsuch Claim.
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Conditions of Indemnification. When The obligations and liabilities of the Parent, the Merger Sub and the Shareholder, with respect to Claims resulting from the assertion of liability by any of them, shall be subject to the following terms and conditions:
(a) The party hereto seeking indemnification under ----------------------------- this Agreement (the Party seeking "Indemnitee") will give the other party hereto from whom indemnification must, as a condition of indemnification, provide is sought (the indemnifying Party with: i"Indemnitor") prompt notice of any such Claim reasonably promptly after the reported or alleged defectIndemnitee receives notice thereof, infringementand the Indemnitor will have the right to undertake the defense thereof by representatives of its own choosing. The failure of any Indemnitee to give notice as provided herein shall not relieve the Indemnitor of its obligations under this Article IX, injury or claim; ii) except to the opportunity extent that the Indemnitor is prejudiced by the failure to investigate give such notice. When the Indemnitor undertakes the defense of any claim, control the Indemnitee shall have the right to participate in contesting such claim at its own costs and expense.
(b) In the event that the Indemnitor, within ten (10) business days after notice of any such Claim, fails to provide written notice of its election to defend such Claim, the Indemnitee will (upon giving written notice to the Indemnitor) have the right, but not the obligation, to undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnitor, subject to the right of the Indemnitor to assume the defense of such claimClaim at any time prior to settlement, and settle such claim at its discretion; iiicompromise or final determination thereof.
(c) all information obtained by The Indemnitor shall not, without the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with MarketerIndemnitee's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party shall have the option to assume the other Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, settle or compromise any Claim or consent to entry of any judgment which consent shall does not be unreasonably withheld. Each Party shallinclude an unconditional release from all liability in respect of such Claim, other than liability specified in the settlement, from the claimant or plaintiff to the Indemnitee. To the greatest extent allowed by lawreasonably possible, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party the parties shall be liable for any special, incidental, indirect attempt to obtain general releases from such plaintiff or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementclaimant.
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Conditions of Indemnification. When The obligations and liabilities of the Seller, Executor and the Purchasers under this Section with respect to Claims relating to third parties shall be subject to the following terms and conditions:
(a) A party seeking indemnification under ----------------------------- this Agreement ("Indemnified Party") will give the Party seeking party required to provide such indemnification must, as a condition of indemnification, provide (the indemnifying Party with: i"Indemnifying Party") prompt written notice of any such Claim, and thereafter the reported Indemnifying Party will undertake the defense thereof by representatives chosen by it, provided that such representatives are reasonably acceptable to the Indemnified Party.
(b) If the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claim, the Indemnified Party will, upon written notice to the Indemnifying Party, have the right to undertake the defense, compromise or alleged defectsettlement of such Claim on behalf of and for the account and risk of the Indemnifying Party, infringement, injury or claim; ii) subject to the opportunity right of the Indemnifying Party to investigate such claim, control assume the defense of such claimClaim at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and settle such claim at its discretion; iii) all information obtained by adversely affect an Indemnified Party other than as a result of money damages or other money payments, the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume defend, and with the other consent of the Indemnifying Party's defense in , to compromise or settle such Claim, and (ii) the Indemnifying Party shall not, without the written consent of the Indemnified Party, its successors and assigns settle or compromise any such claim Claim or suit with counsel reasonably satisfactory consent to the other Party. No settlement entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, the plaintiff to the extent allowed by law, regard as Confidential Information Indemnified Party a release from all matters referenced liability in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out respect of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementsuch Claim.
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Conditions of Indemnification. When seeking indemnification under ----------------------------- Except as otherwise provided in Section 5.10 and Section 9.05, the obligations and liabilities of each party hereunder with respect to its indemnity and reimbursement obligations pursuant to this Agreement Article IX, resulting from any claim (hereinafter called collectively, "Claims"), shall be subject to the Party seeking indemnification mustfollowing terms and conditions:
(a) The indemnifying party shall have the right to undertake at its sole expense, as a condition by counsel of indemnificationits own choosing, provide the indemnifying Party with: i) prompt notice of the reported or alleged defect, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claim, Claim and settle the indemnified party shall fully cooperate with and provide all requested information to the indemnifying party in its defense of such claim at its discretion; iiiClaim.
(b) all information obtained by In the Party seeking indemnification relating event that the indemnifying party shall elect not to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Productundertake such defense, or involving Marketer in connection with Marketer's relationship with Manufacturer; and ivwithin a reasonable time after notice of any such Claim from the other party shall fail to defend, the indemnified party (upon notice to the other party) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party shall have the option right to assume undertake the defense, compromise or settlement of such Claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the other Party's defense party.
(c) Anything in any such claim or suit with counsel reasonably satisfactory this Article IX to the contrary notwithstanding, (i) if there is a reasonable probability in indemnified party's judgment, that a Claim may materially and adversely affect the indemnified party other Party. No than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to participate in the defense, compromise or settlement or compromise of the Claim, (ii) the indemnifying party shall be binding on a Party hereto not, without its prior the indemnified party's written consent, settle or compromise any Claim or consent to entry of any judgment which consent shall does not be unreasonably withheld. Each Party shall, include as an unconditional term thereof the giving by the claimant or the plaintiff to the extent allowed indemnified party of a release from all liability in respect of such Claim, and (iii) in the event that the indemnifying party undertakes defense of any Claim, the indemnified party, by lawcounsel or other representative of its own choosing and at its sole cost and expense, regard as Confidential Information shall have the right to consult with, and be provided reasonable access to all matters referenced in this paragraph Except as otherwise providedrelevant information within the possession of, neither Party shall be liable for any special, incidental, indirect the indemnifying party and its counsel or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under other representatives concerning such Claim and the terms of this agreementindemnifying party.
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Conditions of Indemnification. When The obligations and liabilities of Newco, ONS and OrionSat with respect to their respective indemnities pursuant to the Newco Indemnity and Section 12.2, resulting from any Claims, shall be subject to the following terms and conditions:
12.3.1. The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Claims promptly after the reported Indemnified Party receives notice thereof; provided that the failure to give such notice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure.
12.3.2. The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claimClaims at the Indemnifying Party's risk and expense.
12.3.3. In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the Indemnified Party of any such Claims, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Claims, by counsel or other representatives of its own choosing, on behalf of and settle for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such claim Claims at its discretion; iii) all information obtained any time prior to settlement, compromise or final determination thereof). In such event, the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the costs and expenses incurred by the Indemnified Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; such defense, compromise or settlement as and ivwhen such costs and expenses are so incurred.
12.3.4. Anything in this Section 12.3 to the contrary notwithstanding, (a) such additional information if there is a reasonable probability that Claims may materially and assistance adversely affect the Indemnified Party other than as a result of money damages or other money payments, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the Claims, (b) the Indemnifying Party shall not, without the Indemnified Party's defense written consent, settle or compromise any Claims or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in any respect of such claim or suit with counsel reasonably Claims in form and substance satisfactory to the Indemnified Party, and (c) in the event that the Indemnifying Party undertakes defense of any Claims, the Indemnified Party, by counsel or other Party. No settlement representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or compromise other representatives concerning such Claims and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall be binding on a cooperate with respect to such Claims and (d) in the event that the Indemnifying Party hereto without its prior written consentundertakes defense of any Claims, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Indemnifying Party shall be liable for any specialhave an obligation to keep the Indemnified Party informed of the status of the defense of such Claims and furnish the Indemnified Party with all documents, incidental, indirect or consequential damages arising out of or relating to this Agreement; provided, however, this limitation instruments and information that the Indemnified party shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementreasonably request in connection therewith.
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Samples: Section 351 Exchange Agreement and Plan of Conversion (Orion Network Systems Inc/De/)
Conditions of Indemnification. When seeking indemnification under ----------------------------- this Agreement the Party seeking indemnification mustThe obligations of Seller and Buyer, as a condition of indemnificationthe case may be, provide under Sections 8.1 and 8.2 (herein referred to as the indemnifying "Indemnifying Party"), with respect to Claims made by third parties shall be subject to the following terms and conditions:
(a) The Person to whom such Claim relates (the "Indemnified Party") will give the Indemnifying Party with: i) prompt notice of such Claim, whether threatened or pending, and the reported Indemnifying Party will assume the defence thereof by representatives chosen by it. Any failure to give such notice will not waive the rights of the Indemnified Party except to the extent that the rights of the Indemnifying Party are actually prejudiced.
(b) Provided the Indemnifying Party assumes the defence as provided in Section 8.3(a):
(i) The Indemnified Party shall not make any admission of liability, agreement or alleged defect, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense compromise in respect of such claim, Claim without prior consultation with and settle such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party shall have the option to assume the other Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, consent of the Indemnifying Party (which consent shall not be unreasonably withheld. Each Party shall, withheld or delayed) to the extent allowed that such admission of liability, agreement or compromise would prevent the Indemnifying Party from defending its interests. If no reply is received from the Indemnifying Party within thirty (30) Days of a written notification made to it by lawthe Indemnified Party that it wishes to admit liability, regard as Confidential Information all matters referenced in this paragraph Except as otherwise providedagree or compromise, neither the Indemnifying Party shall be liable deemed to have consented to the course of action taken. If on the other hand within the period of thirty (30) Days the Indemnifying Party states in writing that it does not consent to the intended course of action, it shall set out the reasons for this, as well as the course of action which should be followed in respect of any specialproposed admission of liability, incidentalcompromise or agreement with respect to the Claim.
(ii) The Indemnified Party shall take and cause its Affiliates to take all such commercially reasonable steps or proceedings as the Indemnifying Party may reasonably consider necessary to avoid, indirect resist, defend, appeal or consequential compromise any Claim, provided that the Indemnifying Party bears all the fees, costs and expenses in such connection.
(c) If the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to assume the defence thereof, the Indemnified Party or any of its Affiliates shall (upon further notice to the Indemnifying Party) have the right to undertake the defence, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defence of such Claim at any time prior to the settlement, compromise or final determination thereof.
(d) Anything in this Section 8.3 to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may Adversely affect the Indemnified Party or any of its Affiliates other than as a result of money damages arising out or other money payments, the Indemnified Party or such Affiliate shall have the right to defend, at its own cost and expense, and to compromise or settle such Claim with the consent of or relating to this Agreement; providedthe Indemnifying Party and (ii) the Indemnifying Party shall not, however, this limitation without the written consent of the Indemnified Party (which shall not apply -------- ------- be unreasonably withheld or delayed), settle or compromise any Claim or consent to losses arising the entry of any judgment unless the settlement, compromise or judgment includes as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party or such Affiliate, or both, a release from Third all liability in respect of such Claim.
(e) Upon the determination of the liability under this Section 8.3, the Indemnifying Party claims shall pay to the Indemnified Party within ten (10) Days after such determination, the amount of any Claim for which a party is indemnified under indemnification made hereunder. Upon the terms payment in full of this agreementany Claim, the Indemnifying Party shall be subrogated to the rights of the Indemnified Party against any Person or Authority with respect to the subject matter of such Claim.
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Conditions of Indemnification. When seeking indemnification under ----------------------------- The obligations and liabilities of ESI and Vendor hereunder with respect to their respective indemnities pursuant to this Agreement Section 10.1, resulting from any claim, demand or other assertion of liability by third parties (hereinafter called collectively "Demands"), shall be subject to the Party seeking indemnification mustfollowing terms and conditions:
10.1.3.1. Subject to the consent of the party to be indemnified pursuant to this Section 10 (the "Indemnified Party") (such consent not to be unreasonably withheld or delayed), as a condition of indemnification, provide the indemnifying party (the "Indemnifying Party") will have the right to undertake, by counsel or representatives of its own choosing, the defense, compromise or settlement of any such Demand asserted against the Indemnified Party, such defense, compromise or settlement to be undertaken on behalf of and for the account and risk of the Indemnifying Party.
10.1.3.2. In the event the Indemnifying Party with: i) shall elect not to undertake such defense by its own representatives, the Indemnifying Party shall give prompt written notice of its election to the reported or alleged defect, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claimIndemnified Party, and settle the Indemnified Party will undertake the defense, compromise or settlement thereof by counsel or other representatives designated by it whom the Indemnifying Party determines in writing to be satisfactory for such claim at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claimpurposes. The indemnifying consent of the Indemnifying Party shall have to the option to assume the other Indemnified Party's defense in any such claim choice of counsel or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent representative shall not be unreasonably withheldwithheld or delayed.
10.1.3.3. Each In the event that both an ESI Party shall, and a Vendor Party are subject to the extent allowed by lawsame Demand, regard as Confidential Information all matters referenced then each Party shall (i) assume its own defense thereof with counsel of its choosing, (ii) bear its own expenses in this paragraph Except the defense thereof, except as otherwise providedprovided herein, neither and (iii) forego any settlement or compromise thereof without the consent of the other Party unless the settlement or compromise includes an unconditional release in favor of the other party and its Affiliates by all claimants from any liability therein. Notwithstanding each Party's obligation to conduct its own defense of any joint Demand and bear its own defense costs therein, if relative fault is allocated or apportioned therein by final adjudication or joint settlement primarily to one Party and its Affiliates, that Party shall be liable responsible for any special, incidental, indirect or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third reimbursing the other Party claims for which a party is indemnified under all costs incurred by the terms Party in the defense thereof. For purposes of this agreementSection 10.1.3.3 a Party shall be deemed "primarily" at fault only if at least eighty percent (80%) of such fault is allocated or apportioned to such Party and its Affiliates.
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Conditions of Indemnification. When The obligations and liabilities of Seller and of Buyer hereunder with respect to their respective indemnities pursuant to this Article 12, resulting from any Losses, shall be subject to the following terms and conditions:
12.5.1. The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"INDEMNIFIED PARTY") must give the other party or parties, as a condition of indemnificationthe case may be (the "INDEMNIFYING PARTY"), provide the indemnifying Party with: i) prompt notice of any such Losses promptly after the reported Indemnified Party receives notice thereof; provided that the failure to give such notice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure.
12.5.2. The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing (reasonably acceptable to the Indemnified Party), infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claim, and settle such claim Losses at its discretion; iii) all information obtained by the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party shall have the option to assume the other Indemnifying Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this Agreementrisk and expense; provided, however, that as a condition to the exercise of such right to undertake defense of such Losses, the Indemnifying Party shall, as between the Indemnifying Party and the Indemnified Party, assume the liability for such Losses, without regard to the limitations set forth in Section 12.4.2.
12.5.3. In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the Indemnified Party of any such Losses, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such Losses at any time prior to settlement, compromise or final determination thereof (with counsel reasonably acceptable to the Indemnified Party)). In such event, the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the costs and expenses incurred by the Indemnified Party in connection with such defense, compromise or settlement as and when such costs and expenses are so incurred.
12.5.4. Anything in this limitation Section 12.5 to the contrary notwithstanding, (a) if any third party alleges the right to or seeks any remedy other than money damages or other money payments, the Indemnified Party shall have the right, at the cost and expense of the Indemnifying Party, to participate in and direct the defense, compromise or settlement of the Losses, (b) the Indemnifying Party shall not, without the Indemnified Party's written consent, settle or compromise any Losses or consent to entry of any judgment which does not apply -------- ------- include as an unconditional term thereof the giving by the claimant or the plaintiff to losses arising the Indemnified Party of a release from Third all liability in respect of such Losses in form and substance reasonably satisfactory to the Indemnified Party, and (c) in the event that the Indemnifying Party claims for which undertakes defense of any Losses, the Indemnified Party, by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Losses and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such Losses, (d) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnifying Party shall have an obligation to keep the Indemnified Party informed of the status of the defense of such Losses and furnish the Indemnified Party with all documents, instruments and information that the Indemnified Party shall reasonably request in connection therewith, and (e) in the event that both the Indemnified Party and the Indemnifying Party are parties (directly or through interpleader) to any Losses giving rise to indemnification hereunder and the Indemnified Party is advised by counsel that there is or may be a party is indemnified under conflict of interest in the terms representation of this agreement.both the Indemnified Party and the Indemnifying Party by one firm of counsel, the Indemnified Party shall be entitled to assume, at the sole cost and expense of the Indemnifying Party, the defense, compromise and settlement (subject to clause (b)
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Conditions of Indemnification. When The obligations and liabilities of Sellers and of Buyer hereunder with respect to their respective indemnities pursuant to this ARTICLE 12, shall be subject to the following terms and conditions:
(a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition the case may be (the "Indemnifying Party"), notice specifying in reasonable detail the nature of indemnification, provide any such Losses promptly after the indemnifying Indemnified Party with: i) prompt receives notice thereof; provided that the failure to give such notice shall not affect the rights of the reported Indemnified Party hereunder except to the extent that the Indemnifying Party's defense shall have been materially impaired.
(b) The Indemnifying Party shall have the right, absent a conflict of interest, to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claimLosses at the Indemnifying Party's risk and expense.
(c) In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the Indemnified Party of any such Losses, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and settle for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense under SECTION 12.4(B) hereof at any time prior to settlement, compromise or final determination thereof). In such claim at its discretion; iii) all information obtained event, the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the costs and expenses incurred by the Indemnified Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; such defense, compromise or settlement as and iv) when such additional information costs and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party shall have the option to assume the other Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementexpenses are so incurred.
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Conditions of Indemnification. When The obligations and liabilities of the Shareholders, Kolcari and the Company, with respect to Claims resulting from the assertion of liability by third parties, shall be subject to the following terms and conditions:
(1) The party hereto seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must, as a condition of indemnification, provide "Indemnitee") will give the indemnifying Party with: iother party hereto (the "Indemnitor") prompt notice of any such Claim reasonably promptly after the reported Indemnitee receives notice thereof, and the Indemnitor will undertake the defense thereof by representatives of its own choosing.
(2) In the event that the Indemnitor, within ten (10) business days after notice of any such Claim, fails to defend such Claim, the Indemnitee will (upon giving written notice to the Indemnitor) have the right, but not the obligation, to undertake the defense, compromise or alleged defectsettlement of such Claim on behalf of and for the account and risk of the Indemnitor, infringement, injury or claim; ii) subject to the opportunity right of the Indemnitor to investigate such claim, control assume the defense of such claimClaim at any time prior to settlement, compromise or final determination thereof.
(3) Anything in this Section to the contrary notwithstanding, if there is a reasonable probability that a Claim may materially and settle such claim at its discretion; iii) all information obtained by adversely affect the Party seeking indemnification relating to any complaint Indemnitee other than as a result of money damages or to any claimed or actual defect or deficiency regarding any Productother money payments, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party Indemnitee shall have the option right to assume defend, compromise or settle such Claim, in good faith, on behalf of and for the other Partyaccount and risk of the Indemnitor. However, the Indemnitee shall not, without the Indemnitor's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, settle or compromise any Claim or consent to entry of any judgment which consent shall does not be unreasonably withheld. Each Party shallinclude an unconditional release from all liability in respect of such Claim, other than liability specified in the settlement, from the claimant or plaintiff to the Indemnitor and the Indemnitee. To the greatest extent allowed by lawreasonably possible, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party the parties shall be liable for any special, incidental, indirect attempt to obtain general releases from such plaintiff or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementclaimant.
Appears in 1 contract
Samples: Acquisition Agreement (Ovm International Holding Corp)
Conditions of Indemnification. When The obligations and liabilities of Seller and of Buyer hereunder with respect to their respective indemnities pursuant to this Section 12.5, resulting from any Losses, shall be subject to the following terms and conditions:
(a) The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Losses promptly after the reported Indemnified Party receives notice thereof, provided that the failure to give such notice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure.
(b) The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing, infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claimLosses at the Indemnifying Party's risk and expense.
(c) In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the Indemnified Party of any such Losses, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and settle for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such claim Losses at its discretion; iii) all information obtained any time prior to settlement, compromise or final determination thereof). In such event, the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the costs and expenses incurred by the Indemnified Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; such defense, compromise or settlement as and ivwhen such costs and expenses are so incurred.
(d) such additional information Anything in this Section 12.5 to the contrary notwithstanding (a) if there is a reasonable probability that Losses may materially and assistance adversely affect the Indemnified Party other than as a result of money damages or other money payments, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the Losses, (b) the Indemnifying Party shall not, without the Indemnified Party's defense written consent, settle or compromise any Losses or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in any respect of such claim or suit with counsel reasonably Losses in form and substance satisfactory to the Indemnified Party, (c) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnified Party, by counsel or other Partyrepresentative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Losses and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such Losses,(d) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnifying Party shall have an obligation to keep the Indemnified Party informed of the status of the defense of such Losses and furnish the Indemnified Party undertakes defense of any Losses, the Indemnifying Party shall have an obligation to keep the Indemnified Party informed of the status of the defense of such Losses and furnish the Indemnified Party with all documents, instruments and information that the Indemnified party shall reasonably request in connection therewith, (e) in the event of a dispute arising under Section 12.2(e), or 12.3
(e) Buyer and Seller agree to submit the dispute for resolution to a consultant with expertise in environmental sciences selected jointly by Buyer and Seller. No settlement To assist in his/her deliberations, the consultant may review existing data and written materials submitted by the parties, if he/she so determines, and (f) Buyer agrees that it shall not conduct invasive environmental sampling or compromise shall be binding on testing, except as required by Environmental Law, by an order or mandate of a Party hereto without its prior written consentGovernmental Authority or as necessary to respond to an emergency situation, unless it has provided Sellers with advance notice of such action in writing, which consent notice will include an explanation of the reasonable basis for such sampling or testing. Seller shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced indemnify Buyer until and unless it is notified in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect advance of such sampling or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementtesting activities.
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of Seller and of Buyer hereunder with respect to their respective indemnities pursuant to this Section 12, resulting from any Losses, shall be subject to the following terms and conditions:
12.5.1. The party seeking indemnification under ----------------------------- this Agreement (the Party seeking indemnification must"Indemnified Party") must give the other party or parties, as a condition of indemnificationthe case may be (the "Indemnifying Party"), provide the indemnifying Party with: i) prompt notice of any such Losses promptly after the reported Indemnified Party receives notice thereof; provided that the failure to give such notice shall not affect the rights of the Indemnified Party hereunder except to the extent that the Indemnifying Party shall have suffered actual damage by reason of such failure.
12.5.2. The Indemnifying Party shall have the right to undertake, by counsel or alleged defectother representatives of its own choosing (reasonably acceptable to the Indemnified Party), infringement, injury or claim; ii) the opportunity to investigate such claim, control the defense of such claimLosses at the Indemnifying Party's risk and expense.
12.5.3. In the event that the Indemnifying Party shall elect not to undertake such defense, or, within a reasonable time after notice from the Indemnified Party of any such Losses, shall fail to defend, the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right to undertake the defense, compromise or settlement of such Losses, by counsel or other representatives of its own choosing, on behalf of and settle for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume defense of such claim Losses at its discretion; iii) all information obtained any time prior to settlement, compromise or final determination thereof (with counsel reasonably acceptable to the Indemnified Party)). In such event, the Indemnifying Party shall pay to the Indemnified Party, in addition to the other sums required to be paid hereunder, the costs and expenses incurred by the Indemnified Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with Marketer's relationship with Manufacturer; such defense, compromise or settlement as and ivwhen such costs and expenses are so incurred.
12.5.4. Anything in this Section 12.5 to the contrary notwithstanding, (a) such additional information if there is a reasonable probability that Losses may materially and assistance adversely affect the Indemnified Party other than as a result of money damages or other money payments, the indemnifying Party may reasonably require to defend against such claim. The indemnifying Indemnified Party shall have the option right, at its own cost and expense, to assume participate in the other defense, compromise or settlement of the Losses, (b) the Indemnifying Party shall not, without the Indemnified Party's written consent, settle or compromise any Losses or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such Losses in form and substance satisfactory to the Indemnified Party, and (c) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnified Party, by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnifying Party and its counsel or other representatives concerning such Losses and the Indemnifying Party and the Indemnified Party and their respective counsel or other representatives shall cooperate with respect to such Losses (d) in the event that the Indemnifying Party undertakes defense of any Losses, the Indemnifying Party shall have an obligation to keep the Indemnified Party informed of the status of the defense of such claim Losses and furnish the Indemnified Party with all documents, instruments and information that the Indemnified party shall reasonably request in connection therewith, and (e) in the event that both the Indemnified Party and the Indemnifying Party are parties (directly or suit through interpleader) to any Losses giving rise to indemnification hereunder and the Indemnified Party is advised by counsel that there is or may be a conflict of interest in the representation of both the Indemnified Party and the Indemnifying Party by one firm of counsel, the Indemnified Party shall be entitled to assume, at the sole cost and expense of the Indemnifying Party, the defense, compromise and settlement (subject to clause (b) above) of such Loss with counsel (in addition to local counsel) reasonably satisfactory to the other Indemnifying Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, which consent shall not be unreasonably withheld. Each Party shall, to the extent allowed by law, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party shall be liable for any special, incidental, indirect or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreement.
Appears in 1 contract
Conditions of Indemnification. When The obligations and liabilities of the Feishang Shareholder, Feishang and the Company, with respect to Claims resulting from the assertion of liability by any of them, shall be subject to the following terms and conditions:
(1) The party hereto seeking indemnification under ----------------------------- this Agreement (the Party seeking "Indemnitee") will give the other party hereto from whom indemnification must, as a condition of indemnification, provide is sought (the indemnifying Party with: i"Indemnitor") prompt notice of any such Claim reasonably promptly after the reported or alleged defectIndemnitee receives notice thereof, infringementand the Indemnitor will have the right to undertake the defense thereof by representatives of its own choosing. The failure of any Indemnitee to give notice as provided herein shall not relieve the Indemnitor of its obligations under Section 14 above, injury or claim; ii) except to the opportunity extent that the Indemnitor is prejudiced by the failure to investigate give such notice. When the Indemnitor undertakes the defense of any claim, control the Indemnitee shall have the right to participate in contesting such claim at its own costs and expense.
(2) In the event that the Indemnitor, within ten (10) business days after notice of any such Claim, fails to defend such Claim, the Indemnitee will (upon giving written notice to the Indemnitor) have the right, but not the obligation, to undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnitor, subject to the right of the Indemnitor to assume the defense of such claimClaim at any time prior to settlement, and settle such claim at its discretion; iiicompromise or final determination thereof.
(3) all information obtained by The Indemnitor shall not, without the Party seeking indemnification relating to any complaint or to any claimed or actual defect or deficiency regarding any Product, including, but not limited to, information relating to any legal proceeding involving Manufacturer, involving any Product, or involving Marketer in connection with MarketerIndemnitee's relationship with Manufacturer; and iv) such additional information and assistance as the indemnifying Party may reasonably require to defend against such claim. The indemnifying Party shall have the option to assume the other Party's defense in any such claim or suit with counsel reasonably satisfactory to the other Party. No settlement or compromise shall be binding on a Party hereto without its prior written consent, settle or compromise any Claim or consent to entry of any judgment which consent shall does not be unreasonably withheld. Each Party shallinclude an unconditional release from all liability in respect of such Claim, other than liability specified in the settlement, from the claimant or plaintiff to the Indemnitee. To the greatest extent allowed by lawreasonably possible, regard as Confidential Information all matters referenced in this paragraph Except as otherwise provided, neither Party the parties shall be liable for any special, incidental, indirect attempt to obtain general releases from such plaintiff or consequential damages arising out of or relating to this Agreement; provided, however, this limitation shall not apply -------- ------- to losses arising from Third Party claims for which a party is indemnified under the terms of this agreementclaimant.
Appears in 1 contract
Samples: Acquisition Agreement (China Natural Resources Inc)
