Conditions to Indemnification. Any Person seeking indemnification (the “Indemnitee”) under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give prompt written notice of the indemnity claim to the indemnifying Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the Indemnitee; provided, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification).
Appears in 4 contracts
Samples: Collaboration and License Agreement (Homology Medicines, Inc.), Collaboration and License Agreement (Homology Medicines, Inc.), Collaboration and License Agreement (Homology Medicines, Inc.)
Conditions to Indemnification. Any Person A Party seeking indemnification pursuant to this Section 10 (an “Indemnified Party”) shall give prompt notice to the Party from whom such indemnification is sought (the “IndemniteeIndemnifying Party”) of the assertion of any claim or commencement of any action, suit or proceeding, and shall give the Indemnifying Party such information as the Indemnifying Party may reasonably request but failure to give such notice shall not relieve the Indemnifying Party of its obligation hereunder. The Indemnified Party shall, if the Indemnifying Party acknowledges that such Claim falls within the scope of its indemnification obligations hereunder, permit the Indemnifying Party to assume direction and control of the defence, litigation, settlement, appeal or other disposition of the claim (including the right to settle the claim solely for monetary consideration); provided, that the Indemnifying Party shall seek the prior written consent (not to be unreasonably withheld or delayed) of Indemnified Party as to any settlement which would diminish or materially adversely affect the scope, exclusivity or duration of any Patent Rights licensed under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give prompt written notice Agreement, would require any payment by the Indemnified Party, would require an admission of legal wrongdoing in any way on the part of the indemnity claim Indemnified Party, or would effect an amendment of this Agreement. Provided that an Indemnified Party has complied with the foregoing, the Indemnifying Party shall provide attorneys reasonably acceptable to the indemnifying Indemnified Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with defend against any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability Subject to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent foregoing, an Indemnified Party may participate in any proceedings involving such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume claim using attorneys of its choice and control the defense of the indemnification claim at its own expense with counsel selected by the indemnifying expense. In no event may an Indemnified Party and reasonably acceptable to the Indemnitee; provided, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise any claim for which it intends to seek indemnification from the indemnification claim Indemnifying Party hereunder without the prior written consent (such consent not to be unreasonably withheld or delayed) of the indemnifying Indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights provided under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed Section 10 as to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not such claim shall be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense null and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification)void.
Appears in 3 contracts
Samples: Collaboration Agreement (Evotec AG), Collaboration Agreement (Evotec AG), Collaboration Agreement (Evotec AG)
Conditions to Indemnification. Any Person seeking An indemnified party (an "Indemnitee") shall give to the indemnifying party (an "Indemnitor") notice in writing as soon as reasonably practicable under the circumstances of the commencement of any action, suit or proceeding or of any claim threatened to be made against Indemnitee for which Indemnitee proposes to demand indemnification (the “Indemnitee”) under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give prompt written notice of the indemnity claim 6. Failure to the indemnifying Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will notify Indemnitor shall not relieve the indemnifying Party of Indemnitor from any liability which he may have to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent if such delay is prejudicial to the indemnifying Party’s failure does not materially adversely affect Indemnitor or his ability to defend any such action, suit or settle such claimproceeding. The indemnifying Party will With respect to any action, suit or proceeding as to which Indemnitee gives notice, Indemnitor shall have the right to assume and control the defense of the indemnification claim defense, compromise or settlement thereof, including at its Indemnitor's own expense with expense, employment of counsel selected by reasonably satisfactory to Indemnitee, provided that the indemnifying Party and reasonably acceptable to outcome includes the complete general release of the Indemnitee; provided, however, . In the event Indemnitor does not notify Indemnitee in writing that an Indemnitee will have the right he intends to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation assume control of such defense within thirty (30) days after Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification)has given Indemnitor notice thereof, then the Indemnitee may defend the indemnification claim but will have no obligation undertake such defense. Indemnitor shall not be liable to do so. The indemnify Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability for any amounts paid in settlement of any Patent Rightsaction, Confidential Informationsuit or proceeding or claim threatened to be made against Indemnitee effected without Indemnitor's prior written consent. Indemnitee shall not settle any action, suit or proceeding or threatened claim without Indemnitor's prior written consent. Neither Indemnitor nor Indemnitee will unreasonably withhold his consent to any proposed settlement. Indemnitor shall not be obligated to indemnify any Indemnitee for any consequential or other rights licensed to NVS by HMI hereunder), without the prior written consent indirect damages of the Indemnitee, which consent, any kind other than as set forth in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to this Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification)6.
Appears in 3 contracts
Samples: Merger Agreement (Synta Pharmaceuticals Corp), Merger Agreement (Synta Pharmaceuticals Corp), Merger Agreement (Synta Pharmaceuticals Corp)
Conditions to Indemnification. Any Person seeking indemnification It shall be a condition precedent to the right of any Agrigenetics Indemnitee or EPS Indemnitee (the each, an “Indemnitee”) to seek indemnification under this Article 15 Section 12.1 or 12.2 that such Indemnitee:
(Indemnification; Limitation Of Liability; Insurancea) will give prompt written shall inform the other Party (the “Indemnifying Party”) as soon as reasonably practicable after it receives notice of the indemnity claim Claim;
(b) shall, if the Indemnifying Party acknowledges that such Claim falls within the scope of its indemnification obligations hereunder, permit the Indemnifying Party to assume direction and control of the indemnifying Party and promptly provide a copy to the indemnifying Party of any complaintdefense, summonslitigation, settlement, appeal or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the defense disposition of the indemnification claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the IndemniteeClaim; provided, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Indemnifying Party will act reasonably and in good faith not settle, adjust or compromise such Claim, or admit any liability with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder)Claim, without the prior written consent of the Indemnitee, which consentunless such settlement, in each case (by the indemnifying Party adjustment, compromise or admission would not have any impact on the Indemnitee; and [ * ] =CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
(c) shall fully cooperate (including providing access to and copies of pertinent records and making available for testimony relevant individuals subject to its control) as reasonably requested by, and at the case expense of, the Indemnifying Party in the defense of the Claim. Provided that an Indemnitee has complied with the foregoing, the Indemnifying Party shall provide attorneys reasonably acceptable to the Indemnitee to defend against any such Claim, provided that if the Indemnitee reasonably determines that representation by attorneys to the Indemnifying Party of both the Indemnitee and the Indemnifying Party would present such attorneys with a conflict of interest, then the Indemnitee may be)request that the Indemnifying Party engage separate legal counsel to represent the Indemnitee and upon receipt of such request, the Indemnifying Party will engage such separate legal counsel at its own expense. If the Indemnifying Party declines to engage separate counsel, then the Indemnitee shall be entitled to retain its own attorneys at the expense of the Indemnifying Party. Subject to the foregoing, an Indemnitee may participate in any proceedings involving such Claim using attorneys of its choice and at its expense, which expense shall not be unreasonably withheld, conditioned, included as Damages for which the Indemnifying Party has liability. In no event may an Indemnitee settle or delayed. The Indemnitee will reasonably cooperate with compromise any Claim for which it intends to seek indemnification from the indemnifying Indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached hereunder without the prior written consent of the indemnifying Party pursuant Indemnifying Party, or the indemnification provided under Section 12.1 or 12.2, as applicable, as to this Section 15.4 (Conditions to Indemnification)such Claim shall be null and void.
Appears in 2 contracts
Samples: Contract Research Agreement, Contract Research Agreement (Exelixis Inc)
Conditions to Indemnification. Any Person seeking If either a Xxxxxxx Indemnified Party or a Protagonist Indemnified Party (each, an “Indemnified Party”) intends to seek indemnification under Section 11.1, the Indemnified Party must: (a) give the other Party (the “IndemniteeIndemnifying Party”) under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give reasonably prompt written notice upon becoming aware of any Third Party Claim with respect to which such Indemnified Party intends to seek indemnification; (b) reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s request and expense, in the defense or settlement of the indemnity claim to claim; and (c) give the indemnifying Indemnifying Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the defense or settlement of the indemnification claim, provided that the Indemnifying Party will not enter into any settlement that adversely affects the Indemnified Party’s rights or obligations without the Indemnified Party’s prior express written consent, which will not be unreasonably withheld, conditioned or delayed. The Indemnified Party may participate in the defense or settlement of any such claim at its own expense with counsel selected by of its choosing. Notwithstanding the indemnifying foregoing, any failure of the Indemnified Party and reasonably acceptable to comply with the provisions of clause (a) of this Section 11.2 will not relieve the Indemnifying Party of any defense or indemnity obligations under this Agreement except to the Indemnitee; provided, however, extent that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented is prejudiced by such counsel in failure. So long as the Indemnifying Party is actively defending such proceedings. The indemnifying Third Party will act reasonably and Claim in good faith with respect to all matters relating to such claim. If faith, the indemnifying Indemnified Party does not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will shall not settle or compromise the indemnification any such claim without the prior written consent of the indemnifying Indemnifying Party. If the Indemnifying Party does not assume and conduct the defense of the claim as provided above, (i) the Indemnified Party may defend against, and consent to the indemnifying Party will not settle entry of any judgment or compromise enter into any settlement with respect to the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests Indemnified Party may deem reasonably appropriate (including any rights under this Agreement or and the scope, validityIndemnified Party need not consult with, or enforceability of obtain any Patent Rightsconsent from, Confidential Information, or other rights licensed to NVS by HMI hereunderthe Indemnifying Party in connection therewith), without and (ii) the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Indemnifying Party will not be liable for any settlement or other disposition of remain responsible to indemnify the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Indemnified Party pursuant to as provided in this Section 15.4 (Conditions to Indemnification)Article 11.
Appears in 2 contracts
Samples: License and Collaboration Agreement, License and Collaboration Agreement (Protagonist Therapeutics, Inc)
Conditions to Indemnification. Any Person seeking indemnification (the “Indemnitee”) under this Article 15 13 (Indemnification; Limitation Of Liability; Insurance) (the “Indemnitee”) will give prompt written notice of the indemnity claim to the indemnifying Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 13 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the Indemnitee; provided, however, that an Indemnitee will have the right to retain its own counselcounsel that is reasonably acceptable to the indemnifying Party, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 13.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS Ionis by HMI Metagenomi hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 11 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 13.4 (Conditions to Indemnification).
Appears in 2 contracts
Samples: Collaboration and License Agreement (Metagenomi Technologies, LLC), Collaboration and License Agreement (Ionis Pharmaceuticals Inc)
Conditions to Indemnification. Any Person seeking (a) All Claims for indemnification under Section 5.3 or Section 5.4 shall be asserted and resolved as this Section 5.5 provides.
(b) In the event a Indemnified Party (i) has determined that it has suffered or incurred Damages or (ii) receives notice of any threatened Proceeding or any commencement of any Proceeding, the written assertion of any Third-Party Claim or the imposition of any penalty, assessment or judgment, in each case for which indemnity may be sought pursuant to Section 5.3 or Section 5.4, and such Indemnified Party intends to seek indemnity from another Party (the “IndemniteeIndemnifying Party”) pursuant to Section 5.3 or Section 5.4, such Indemnified Party shall provide the Indemnifying Party with written notice (a “Claim Notice”) of such determination, Proceeding, Third-Party Claim, penalty, assessment or judgment promptly after the Indemnified Party learns of or receives notice of such Proceeding, Third-Party Claim, penalty, assessment or judgment. Each Claim Notice shall describe, with as much detail as is reasonably practicable, the basis of the determination, Proceeding, Third-Party Claim, penalty, assessment or judgment, a copy of all papers served with respect to that Claim (if any) and all other material written evidence thereof and the basis for the Indemnified Party’s request for indemnification under this Article 15 (Indemnification; Limitation Of Liability; Insurance) Agreement. The failure to promptly deliver a Claim Notice will give prompt written notice not relieve the Indemnifying Party of the indemnity claim its obligations to the indemnifying Indemnified Party and promptly provide a copy with respect to the indemnifying related Third-Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) Claim unless and only to the extent such delay that the Indemnifying Party is prejudicial materially prejudiced thereby.
(c) Upon receipt of a Claim Notice from an Indemnified Party with respect to a Third-Party Claim, the indemnifying Party’s ability to defend or settle such claim. The indemnifying Indemnifying Party will have the right may elect to assume and control the defense of any such Third-Party Claim or any Proceeding resulting therefrom; provided, that the indemnification claim at Indemnifying Party keeps the Indemnified Party reasonably informed of the status of the claim. After notice from the Indemnifying Party to the Indemnified Party of its own expense election to assume and control the defense of a Third-Party Claim or any Proceeding resulting therefrom, the Indemnifying Party shall not, so long as the Indemnifying Party diligently conducts such defense, be liable to the Indemnified Party under this Article V for any fees of other counsel or any other expenses with counsel selected respect to the defense of such Third-Party Claim, in each case subsequently incurred by the indemnifying Indemnified Party in connection with the defense of such Third-Party Claim. In the event that an Indemnifying Party assumes the defense of a Third-Party Claim, then the Indemnifying Party will have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Party Claim in the name and on behalf of the Indemnified Party (and shall select counsel, contractors and consultants of recognized standing and competence after consultation with the Indemnified Party), and the Indemnified Party will furnish the Indemnifying Party with all information in its possession, custody or control with respect to such Third-Party Claim and otherwise cooperate fully with the Indemnifying Party in all aspects of any investigation, defense, pretrial activities, trial, compromise, settlement or discharge of such Third-Party Claim, including by providing the Indemnifying Party with all reasonably acceptable requested information and reasonable access to employees and officers (including as witnesses) and the Indemniteeright to inspect and copy documents and records or other information; provided, however, that an Indemnitee will have the right Indemnifying Party shall not consent to retain its own counselany judgment or settle, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual compromise or potential differing interests between the Indemnitee and make any other party represented by such counsel in such proceedings. The indemnifying disposition of any Third-Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim Claim without the prior written consent of the indemnifying PartyIndemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned) unless such judgment, settlement or compromise (i) includes as an unconditional term thereof the giving by the claimant or plaintiff of a full and unconditional release of the indemnifying Indemnified Party from all liability in respect of such Third-Party Claim, (ii) does not include a statement or admission of fault, culpability or failure to act by or on behalf of the Indemnified Party and (iii) is only for monetary damages. In the event that an Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnified Party will not settle settle, compromise or compromise make any other disposition of such Third-Party Claim that would or might result in payment of an amount for which the indemnification claim in any manner which Indemnifying Party would have an adverse effect on the Indemnitee’s interests (including any rights be liable under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), Article V without the prior written consent of the IndemniteeIndemnifying Party, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will consent shall not be unreasonably withheld, delayed or conditioned, or delayed. The Indemnitee Indemnified Party may participate in, but not control, any defense or settlement of any Third-Party Claim the Indemnifying Party controls under this Section 5.5(c) and will reasonably cooperate bear its own costs and expenses with respect to that participation; provided, however, that if the indemnifying named parties to any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has been advised in the reasonable opinion of counsel that there is a conflict of interest which renders it inadvisable for one firm to represent the Indemnified Party and the Indemnifying Party, then the Indemnified Party may employ separate counsel at the indemnifying reasonable expense of the Indemnifying Party (provided, that such counsel is limited to one separate firm of attorneys, in addition to one local counsel firm in each jurisdiction in which local counsel is reasonably required), and, on its written notification of that employment, the Indemnifying Party will not have the right to assume or continue the defense of that action on behalf of the Indemnified Party’s .
(d) If the Indemnifying Party (i) elects not to defend the Indemnified Party under this Article V or (ii) fails to notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party under Section 5.5(c) then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification hereunder), the Third-Party Claim by all appropriate proceedings. The Indemnified Party will have full control of such defense and proceedings; provided, however, the Indemnified Party will not settle, compromise or make available any other disposition of any Third-Party Claim that would result in payment of an amount for which the Indemnifying Party would be liable under this Article V without the prior consent of that Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned). Notwithstanding the foregoing, if it is determined that the Indemnifying Party does not have liability to the indemnifying Indemnified Party all pertinent information under this Article V, the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Indemnifying Party will not be liable for any settlement or other disposition required to bear the costs and expenses of the claims Indemnified Party’s defense under this Section 5.5(d) or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and, subject to the last sentence of this Section 5.5(d)¸ the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnitee if Indemnifying Party in connection with its participation in such litigation at the Indemnified Party’s request. The Indemnifying Party may elect to participate in, but not control, any defense or settlement is reached without the written consent of the indemnifying Indemnified Party pursuant to controls under this Section 15.4 (Conditions 5.5(d), and the Indemnifying Party will bear its own costs and expenses with respect to Indemnification)that voluntary participation.
Appears in 2 contracts
Samples: Transition Services Agreement (BJ Services, Inc.), Transition Services Agreement (BJ Services, Inc.)
Conditions to Indemnification. Any A Person seeking indemnification recovery under this Article 14 (the “IndemniteeIndemnified Party”) in respect of a Claim shall give prompt notice of such Claim to the Party from whom indemnification is sought (the “Indemnifying Party”); provided, that the Indemnifying Party is not contesting its obligation under this Article 15 (Indemnification14, shall permit the Indemnifying Party to control any litigation relating to such Claim and the disposition of such Claim; Limitation Of Liability; Insurance) will give prompt written notice of the indemnity claim to the indemnifying Party and promptly provide a copy to the indemnifying Party of any complaintfurther provided, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Indemnifying Party of liability to the Indemnitee under this Article 15 shall (Indemnification; Limitation Of Liability; Insurancea) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the Indemnitee; provided, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to the settlement or disposition of such claim. If Claim as the indemnifying settlement or disposition relates to such Indemnified Party does not assume the defense of the indemnification claim as described in this Section 15.4 and (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will b) not settle or compromise the indemnification otherwise resolve such claim without the prior written consent of the indemnifying Party, and the indemnifying such Indemnified Party will not settle or compromise the indemnification claim in any manner (which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will shall not be unreasonably withheld, conditioned, conditioned or delayed) unless such settlement fully releases the Indemnified Party without any liability, loss, cost or obligation incurred by the Indemnified Party (in which case prior consent shall not be required). The Indemnitee will reasonably Each Indemnified Party shall cooperate with the indemnifying Indemnifying Party in its defense of any such Claim in all reasonable respects and shall have the right to be present in person or through counsel at all legal proceedings with respect to such Claim (with any such counsel being at its own sole cost and expense). If the indemnifying Party’s expense Indemnifying Party does not assume and will make available conduct the defense of the Claim as provided above, (i) the Indemnified Party may defend against, consent to the indemnifying Party all pertinent information under the control entry of the Indemniteeany judgment, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for or enter into any settlement with respect to such Claim in any manner the Indemnified Party may deem reasonably appropriate (and the Indemnified Party need not consult with, or other disposition of obtain any consent from, the claims by Indemnifying Party in connection therewith), and (ii) the Indemnitee if such settlement is reached without Indemnifying Party shall remain responsible to indemnify the written consent of the indemnifying Indemnified Party pursuant to as provided in this Section 15.4 (Conditions to Indemnification)Article 14.
Appears in 2 contracts
Samples: Research Collaboration and Exclusive License Agreement (Sigilon Therapeutics, Inc.), Research Collaboration and Exclusive License Agreement (Sigilon Therapeutics, Inc.)
Conditions to Indemnification. Any Person seeking A Party that intends to claim indemnification under this Section (the “"Indemnitee”") under shall promptly notify the other Party (the "Indemnitor") of any loss, claim, damage, liability or action in respect of which the Indemnitee intends to claim such indemnification, and the Indemnitor shall assume the defense thereof with counsel mutually satisfactory to the Parties, whether or not the underlying Third Party Claim is rightfully brought. In addition to counsel provided by the Indemnitor, an Indemnitee shall have the right to retain its own counsel at its own cost in such proceedings. The indemnity agreement in this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give prompt written notice 8 shall not apply to amounts paid in settlement of any loss, claim, damage, liability or action if such settlement is effected without the consent of the indemnity claim to the indemnifying Party and promptly provide a copy to the indemnifying Party of any complaintIndemnitor, summons, which consent shall not be withheld or other written or verbal notice that the Indemnitee receives in connection with any such claimdelayed unreasonably. An Indemnitee’s The failure to deliver written notice will to the Indemnitor within a reasonable time after Indemnitee has knowledge of any claim, suit or demand or the commencement of any suit, if prejudicial to its ability to defend such action, shall relieve the indemnifying Party such Indemnitor of any liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to 8. At the extent such delay is prejudicial to Indemnitor's request, the indemnifying Party’s ability to defend Indemnitee under this Article 8, and its employees and agents, shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or settle such claimliability covered by this indemnification and provide full information with respect thereto. The indemnifying Party will have the right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the Indemnitee; provided, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will Indemnitor shall not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying any such Third Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached Claim without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification)Indemnitee which consent shall not be unreasonably withheld, but such consent shall not be required if the settlement or compromise involves only the payment of monies and the Indemnitee obtains a complete release thereunder.
Appears in 2 contracts
Samples: Development and License Agreement (Advancis Pharmaceutical Corp), Development and License Agreement (Advancis Pharmaceutical Corp)
Conditions to Indemnification. Any Person seeking indemnification (the As used herein, “Indemnitee”” means a party entitled to indemnification under the terms of Section 12.1, 12.2 or 12.3(b). It shall be a [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. condition precedent to an Indemnitee’s right to seek indemnification under such Section 12.1, 12.2 or 12.3(b) under this Article 15 that the Indemnitee: (Indemnification; Limitation Of Liability; Insurancea) will give prompt written notice of the indemnity claim to the indemnifying Party and promptly provide a copy to informs the indemnifying Party of any complaint, summons, or other written or verbal a Claim as soon as reasonably practicable after it receives notice that of the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve Claim; (b) if the indemnifying Party acknowledges that such Claim falls within the scope of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to its indemnification obligations hereunder, permits the indemnifying Party’s ability Party to defend assume direction and control of the defense, litigation, settlement, appeal or settle such claim. The indemnifying Party will have other disposition of the Claim (including the right to assume and control settle the defense of the indemnification claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the IndemniteeClaim solely for monetary consideration); provided, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party shall seek the prior written consent (not to be unreasonably withheld or delayed) of any such Indemnitee as to any settlement which would be inappropriate due to actual or potential differing interests between the Indemnitee and require any other party represented payment by such counsel Indemnitee, would require an admission of legal wrongdoing in such proceedings. The indemnifying Party will act any way on the part of an Indemnitee, or would effect an amendment of this Agreement; and (c) fully cooperates (including providing access to and copies of pertinent records and making available for testimony relevant individuals subject to its control) as reasonably requested by, and in good faith with respect to all matters relating to such claim. If at the expense of, the indemnifying Party does not assume in the defense of the indemnification claim as described in this Section 15.4 (Conditions Claim. Provided that an Indemnitee has complied with the foregoing, the indemnifying Party shall provide attorneys reasonably acceptable to Indemnification), then the Indemnitee to defend against any such Claim. Subject to the foregoing, an Indemnitee may defend the indemnification claim but will have participate in any proceedings involving such Claim using attorneys of its/his/her choice and at its/his/her expense. In no obligation to do so. The event may an Indemnitee will not settle or compromise any Claim for which it/he/she intends to seek indemnification from the indemnification claim indemnifying Party hereunder without the prior written consent of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights provided under this Agreement such Section 12.1, 12.2 or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed 12.3(b) as to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not such Claim shall be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense null and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification)void.
Appears in 2 contracts
Samples: Collaboration Agreement, Collaboration Agreement (Exelixis Inc)
Conditions to Indemnification. Any Person seeking indemnification (a) The indemnified party shall give the “Indemnitee”) under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give indemnifying party prompt written notice of (i) the indemnity claim to the indemnifying Party and promptly provide a copy to the indemnifying Party institution of any complaintsuit against the indemnified party for which it may seek indemnification under this Article XIII and (ii) any claims, summonsincluding any claims asserted or made by any Regulatory Authority having jurisdiction, or other written or verbal notice that against the Indemnitee receives in connection with any such claimindemnified party for which it may seek indemnification under this Article XIII. An Indemnitee’s The failure to deliver written give such notice will shall not relieve the indemnifying Party of party from any liability that it may have to the Indemnitee indemnified party under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only XIII except to the extent such delay is prejudicial to that the indemnifying Party’s party's ability to defend such suit or settle claim is materially prejudiced by the failure to give such claimnotice. The indemnifying Party will have the right party shall be entitled to assume and control participate in the defense of the indemnification such suit or claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the Indemniteeassume control of such defense; provided, however, that if it assumes such defense:
(i) the indemnified party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim;
(ii) the indemnifying party shall obtain the prior written approval of the indemnified party before entering into any settlement of such claim or ceasing to defend against such claim, if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief would be imposed against the indemnified party; and
(iii) the indemnifying party shall not consent to the entry of any judgment or enter into any settlement that does not include as an Indemnitee will unconditional term thereof the giving by the claimant or plaintiff to each indemnified party of a release from liability in respect of such claim. Notwithstanding the foregoing, the indemnified party shall be entitled to have sole control at its own expense over the defense or settlement of any suit or claim to the extent the suit or claim could materially adversely affect the business, operations, assets, condition or prospects of the indemnified party and the indemnifying party shall be entitled to participate at its own expense in such defense or settlement.
(b) After written notice by the indemnifying party to the indemnified party of its election to assume control of the defense of any such action, the indemnifying party shall not be liable to such indemnified party hereunder for any legal fees and expenses subsequently incurred by such indemnified party in connection with the defense thereof. If the indemnifying party does not assume control of the defense of such claims as provided in this Section 13.3(b), the indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of defend such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel claim in such proceedings. The indemnifying Party will act reasonably manner as it may deem appropriate at the cost and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent expense of the indemnifying Partyparty, and the indemnifying Party will not settle or compromise party shall promptly reimburse the indemnification claim indemnified party therefor in any manner which would have an adverse effect on accordance with this Section 13.3(b). The reimbursement of fees, costs and expenses required by this Section 13.3(b) shall be made by periodic payments during the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent course of the Indemniteeinvestigation or defense, which consentas and when bills are received or expenses incurred. The indemnified party shall provide to the indemnifying party, in each case (as promptly as practicable after any claim for indemnification hereunder, such information and documentation as may be reasonably requested by the indemnifying Party or party to support and verify the Indemniteeclaim asserted, so long as such disclosure would not violate the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control attorney-client privilege of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification)indemnified party.
Appears in 2 contracts
Samples: Licensing, Contract Manufacturing & Supply Agreement (Impax Laboratories Inc), Licensing, Contract Manufacturing & Supply Agreement (Impax Laboratories Inc)
Conditions to Indemnification. Any Person seeking indemnification The Party claiming indemnity under this Article 13 (the “IndemniteeIndemnified Party”) under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will shall give prompt written notice of the indemnity claim to the indemnifying Party and from whom indemnity is being sought (the “Indemnifying Party”) promptly after learning of such Claim, provided that the failure to promptly provide a copy to such notice shall not relieve the indemnifying Indemnifying Party of any complaint, summons, or other written or verbal notice of its indemnification obligations hereunder except to the extent that the Indemnitee receives Indemnifying Party’s defense of the relevant Claim is prejudiced by such failure. The Indemnified Party shall provide the Indemnifying Party with reasonable assistance, at the Indemnifying Party’s expense, in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party defense of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay Claim for which indemnity is prejudicial to the indemnifying Party’s ability to defend or settle such claimbeing sought. The indemnifying Indemnified Party will may participate in and monitor such defense with counsel of its own choosing at its sole expense; provided, however, the Indemnifying Party shall have the right to assume and control conduct the defense of the indemnification claim at its own expense Claim with counsel selected by the indemnifying Party and reasonably acceptable to the Indemnitee; provided, however, that an Indemnitee will have the right to retain of its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedingschoice. The indemnifying Indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will shall not settle or compromise the indemnification claim any Claim without the prior written consent of the indemnifying Indemnified Party, and not to be unreasonably withheld, unless the indemnifying settlement involves only the payment of money. So long as the Indemnifying Party will is actively defending the Claim in good faith, the Indemnified Party shall not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), such Claim without the prior written consent of the IndemniteeIndemnifying Party. If the Indemnifying Party does not assume and conduct the defense of the Claim as provided above, which consent(a) the Indemnified Party may defend against, consent to the entry of any judgment, or enter into any settlement with respect to such Claim in each case any manner the Indemnified Party may deem reasonably appropriate (by and the indemnifying Indemnified Party need not consult with, or obtain any consent from, the Indemnitee, as the case may beIndemnifying Party in connection therewith), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with and (b) the indemnifying Indemnifying Party at shall remain responsible to indemnify the indemnifying Party’s expense and will make available to the indemnifying Indemnified Party all pertinent information under the control of the Indemnitee, which information will be subject to as provided in this Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification)13.
Appears in 2 contracts
Samples: Collaboration and License Agreement (XOMA Corp), Collaboration and License Agreement (Xoma LTD /De/)
Conditions to Indemnification. Any Person seeking HNC Indemnified Party wishing to claim indemnification under Section 9.2, and any East Penn Financial Indemnified Party wishing to claim indemnification under Section 9.3 (the in this Agreement, an “IndemniteeIndemnified Party”) under this Article 15 upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the the applicable “Indemnifying Party” (Indemnification; Limitation Of Liability; Insurance) will give prompt written notice either HNC, in the case of an East Penn Financial Indemnifying Party, or East Penn Financial in the indemnity claim case of an HNC Indemnified Party), but the failure to so notify shall not relieve the indemnifying Party and promptly provide a copy to the indemnifying Indemnifying Party of any complaint, summons, or other written or verbal notice that liability it may have to such Indemnified Party if such failure does not actually prejudice the Indemnitee receives in connection with Indemnifying Party. In the event of any such claim. An Indemnitee’s failure to deliver written notice will relieve , action, suit, proceeding or investigation, whether arising before or after the indemnifying Effective Time, (i) the Indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will shall have the right to assume and control the defense thereof and the Indemnifying Party shall not be liable to such Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Party in connection with the indemnification claim at its own expense with defense thereof, except that if the Indemnifying Party elects not to assume such defense or counsel selected by for the indemnifying Indemnified Party and advises the Indemnified Party that there are issues that raise conflicts of interest between the Indemnifying Party and the Indemnified Party, the Indemnified Party may retain counsel which is reasonably acceptable satisfactory to the Indemnitee; provided, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Indemnifying Party, and the indemnifying Indemnifying Party shall pay, promptly as statements therefor are received, the reasonable fees and expenses of such counsel for the Indemnified Party, which may not exceed one firm in any jurisdiction, (ii) the Indemnified Party will not settle or compromise cooperate in the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability defense of any Patent Rightssuch matter, Confidential Information, or other rights licensed to NVS by HMI hereunder), without (iii) the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will shall not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached effected without the its prior written consent which shall not be unreasonably withheld and (iv) the Indemnifying Party shall have no obligation hereunder in the event that a federal or state banking agency or a court of competent jurisdiction shall determine that indemnification of an Indemnified Party in the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification)manner contemplated hereby is prohibited by applicable laws and regulations.
Appears in 2 contracts
Samples: Merger Agreement (Harleysville National Corp), Merger Agreement (East Penn Financial Corp)
Conditions to Indemnification. Any Person Whenever any claim shall arise for indemnification under this Article VI, the party seeking indemnification (the “IndemniteeIndemnified Party”) shall promptly notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of the claim and, when known, the facts constituting the basis for such claim; provided, that, no delay in or failure to give such notice shall relieve the Indemnifying Party of its obligations pursuant to this Article VI except as otherwise provided in Section 6.3(a). The obligations and liabilities of ioneer Parent to indemnify the Investor Group under Section 6.2(a) or of Investor to indemnify the Company Group under Section 6.2(b), resulting from the assertion of any Damages by third parties (a “Third Party Claim”), shall be subject to the following terms and conditions:
(a) The Indemnified Party will give the Indemnifying Party prompt notice of any such Third Party Claim, including the specific details of and specific basis under this Article 15 Agreement for its claim (Indemnification; Limitation Of Liability; Insurancea “Claims Notice”) will give prompt written notice and shall enclose a copy of the indemnity claim all papers (if any) served to the indemnifying Indemnified Party and promptly provide a copy with respect to the indemnifying Third Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the IndemniteeClaim; provided, however, that failure to provide such Claim Notice will not relieve the Indemnifying Party of its obligations under this Agreement unless and to the extent such failure results in insufficient time being available to permit the Indemnifying Party to effectively defend against such Third Party Claim or otherwise actually and materially prejudices the Indemnifying Party’s ability to defend against such Third Party Claim. In the event that the claim for indemnification is based upon an Indemnitee will inaccuracy or a breach of a representation, warranty, covenant or agreement, the Claim Notice shall specify the representation, warranty, covenant or agreement that was purportedly inaccurate or breached.
(b) In the case of a claim for indemnification based upon a Third Party Claim, the Indemnifying Party shall have *** from its receipt of the Claim Notice to notify the Indemnified Party whether it admits or denies its obligation to defend and indemnify the Indemnified Party against such Third Party Claim at the sole cost and expense of the Indemnifying Party. The Indemnified Party is authorized, prior to and during such *** period, at the expense of the Indemnifying Party, to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party and that is not prejudicial to the Indemnifying Party.
(c) As to a claim for indemnification based upon a Third Party Claim, except as set forth in Section 6.3(f), the Indemnifying Party shall be, subject to the limitations set forth in this Section 6.3, entitled to assume full control of the defense of such Third Party Claim and proceedings, including any compromise or settlement thereof. If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate in contesting any Third Party Claim which the Indemnifying Party elects to contest.
(d) Notwithstanding anything to the contrary in this Section 6.3: an Indemnified Party shall have the right to retain right, at its own counselcost and expense, with to participate in (but not control) the defense, compromise or settlement of such claim (except if there exists a conflict of interest that could make it inappropriate under applicable standards of professional conduct for the Indemnifying Party and the Indemnified Parties to have common counsel such participation, including the reasonable fees and expenses to of separate counsel, shall be paid by at the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense expense of the indemnification claim as described in this Section 15.4 (Conditions to IndemnificationIndemnifying Party); the Indemnifying Party shall not, then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Indemnified Party, settle or compromise any claim or consent to the entry of any judgment (x) that does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party pursuant a release from all liability in respect of such claim, or that involves a finding of or admission of criminal wrongdoing, or (y) as a result of which injunctive or other equitable relief, or the payment of any monetary damages as to this Section 15.4 which the Indemnified Party shall not be paid in full by the Indemnifying Party, would be imposed against the Indemnified Party.
(Conditions e) If the Indemnifying Party fails to Indemnificationdiligently prosecute, indemnify against or settle such Third Party Claim (as finally determined by a court of competent jurisdiction), then the Indemnified Party shall have the right to defend against the Third Party Claim at the sole cost and expense of the Indemnifying Party, with counsel of the Indemnified Party’s choosing, subject to the right of the Indemnifying Party to assume the defense of the Third Party Claim at any time prior to settlement or final determination thereof. If settlement has been offered and the Indemnifying Party has not yet assumed the defense of such Third Party Claim, the Indemnified Party shall send written notice to the Indemnifying Party of any proposed settlement and the Indemnifying Party shall have the option for *** following receipt of such notice to (i) admit in writing its obligation to indemnify the Indemnified Party from and against the liability and consent to such settlement, (ii) if liability is so admitted, reject, in its reasonable judgment, the proposed settlement, or (iii) deny liability. Any failure by the Indemnifying Party to respond to such notice shall be deemed to be an election under subsection (iii) above.
(f) With respect to any claim for indemnification based on a Third Party Claim for Taxes assessed directly against an Indemnified Party, the Indemnified Party shall control the defense of such Third Party Claim and proceedings and shall keep the Indemnifying Party informed on such Third Party Claim and proceedings and will consider in good faith any comments made by the Indemnifying Party, provided that the Indemnified Party shall not settle or compromise such Third Party Claim without the consent of the Indemnifying Party (not to be unreasonably withheld).
Appears in 2 contracts
Samples: Unit Purchase and Subscription Agreement (Ioneer LTD), Unit Purchase and Subscription Agreement (Ioneer LTD)
Conditions to Indemnification. Any Person seeking indemnification In the event that any Third Party asserts a claim with respect to any matter for which a Party (the “IndemniteeIndemnified Party”) under this Article 15 is entitled to indemnification hereunder (Indemnificationa “Third Party Claim”), then the Indemnified Party shall promptly notify the Party obligated to indemnify the Indemnified Party (the “Indemnifying Party”) thereof; Limitation Of Liability; Insurance) will give prompt written notice provided, however, that no delay on the part of the indemnity claim to Indemnified Party in notifying the indemnifying Indemnifying Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will shall relieve the indemnifying Indemnifying Party of liability to the Indemnitee under this Article 15 from any obligation hereunder unless (Indemnification; Limitation Of Liability; Insurance) and then only to the extent such delay that) the Indemnifying Party is prejudicial prejudiced thereby.
(a) The Indemnifying Party shall have the right, exercisable by notice to the indemnifying Party’s ability Indemnified Party within ten (10) Business Days of receipt of notice from the Indemnified Party of the commencement of or assertion of any Third Party Claim, to defend assume direction and control of the defense, litigation, settlement, appeal or settle such claim. The indemnifying other disposition of the Third Party will have Claim (including the right to assume and control settle the defense of the indemnification claim at its own expense solely for monetary consideration) with counsel selected by the indemnifying Indemnifying Party and reasonably acceptable to the IndemniteeIndemnified Party; provided, howeverthat the Indemnifying Party shall seek the prior consent of any such Indemnified Party as to any settlement that would materially diminish or materially adversely affect the scope, exclusivity or duration of any Patents licensed under this Agreement, would require any payment by such Indemnified Party, would require an admission of legal wrongdoing in any way on the part of an Indemnified Party or would effect an amendment of this Agreement. In the case of any Third Party Claim that an Indemnitee will have is the subject of Section 9.3, Enzon shall be entitled to control the defense of such Third Party Claim subject to the remaining provisions of this Section 9.3.
(b) Within ten (10) days after the Indemnifying Party has given notice to the Indemnified Party of its intended exercise of its right to retain defend a Third Party Claim, the Indemnifying Party shall be entitled, at its own counselsole cost and expense, to assume and conduct such defense, with the fees and expenses to be paid counsel selected by the indemnifying Indemnifying Party, if representation . During such time as the Indemnifying Party is controlling the defense of such Indemnitee Third Party Claim, the Indemnified Party shall cooperate, and cause its Affiliates and agents to cooperate upon request of the Indemnifying Party in the defense or prosecution of the Third Party Claim, including by furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials or appeals as may reasonably be requested by the counsel retained by Indemnifying Party. In the indemnifying Party would be inappropriate due to actual or potential differing interests between event that the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Indemnifying Party does not assume notify the Indemnified Party of the Indemnifying Party’s intent to defend any Third Party Claim within ten (10) Business Days after notice thereof, the Indemnified Party may (without further notice to the Indemnifying Party) undertake the defense thereof with counsel of its choice and at the indemnification claim as described in this Section 15.4 Indemnifying Party’s reasonable expense (Conditions to Indemnificationincluding reasonable, out-of-pocket attorneys’ fees and costs and expenses of enforcement or defense), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Indemnifying Party or the IndemniteeIndemnified Party, as the case may be, shall have the right to join in (including the right to conduct discovery, interview and examine witnesses and participate in all settlement conferences), will but not be unreasonably withheldcontrol, conditionedat its own expense, the defense of any Third Party Claim that the other Party is defending as provided in this Agreement.
(c) In no event may an Indemnified Party settle or delayed. The Indemnitee will reasonably cooperate with compromise any Third Party Claim for which it/he/she intends to seek indemnification from the indemnifying Indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached hereunder without the written prior consent of the indemnifying Indemnifying Party, or the indemnification provided under such Section 9.1, 9.2 or 9.3 as to such Third Party pursuant to this Section 15.4 (Conditions to Indemnification)Claim shall be null and void.
Appears in 1 contract
Samples: License Agreement (Evivrus, Inc.)
Conditions to Indemnification. Any A Person seeking indemnification recovery under this Article 10 (the “IndemniteeIndemnified Party”) under this Article 15 in respect of an Ocugen Indemnity Claim or a XxxXxxx Indemnity Claim, as applicable (Indemnification; Limitation Of Liability; Insuranceeach, an “Indemnity Claim”) will shall give prompt written notice of the indemnity claim such Indemnity Claim to the indemnifying Party and promptly provide a copy to from whom indemnification is sought (the indemnifying Party of any complaint“Indemnifying Party”); provided, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Indemnifying Party of liability to the Indemnitee is not contesting its obligation under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only 10, and shall permit the Indemnifying Party to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the investigation, defense and settlement of the indemnification claim at its own expense with counsel selected by the indemnifying Party such Indemnity Claim; and reasonably acceptable to the Indemnitee; further provided, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will shall (a) act reasonably and in good faith with respect to all matters relating to the settlement or disposition of such claimIndemnity Claim as the settlement or disposition relates to such Indemnified Party and (b) not settle or otherwise resolve such Indemnity Claim without the prior written consent of such Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed). Each Indemnified Party shall cooperate with the Indemnifying Party in its investigation, defense and settlement of any such Indemnity Claim in all reasonable respects and shall have the right to be present in person or through counsel at all legal proceedings with respect to such Indemnity Claim. If the indemnifying Indemnifying Party does not assume and conduct the defense of the indemnification claim Indemnity Claim as described provided above, (i) the Indemnified Party may defend against, consent to the entry of any judgment, or enter into any settlement with respect to such Indemnity Claim in any manner the Indemnified Party may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, the Indemnifying Party in connection therewith), and (ii) the Indemnifying Party shall remain responsible to indemnify the Indemnified Party as provided in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will Article 10. The Indemnifying Party shall have no obligation to do so. The Indemnitee will not settle or compromise liability for any settlement of Indemnity Claims entered into by the indemnification claim Indemnified Party without the prior written consent of the indemnifying Indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification).
Appears in 1 contract
Samples: Co Development and Commercialization Agreement (Ocugen, Inc.)
Conditions to Indemnification. Any Person seeking indemnification (The obligations of the “Indemnitee”) ----------------------------- indemnifying party under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give prompt Sections 10.1 and 10.2 are conditioned upon the delivery of written notice of the indemnity claim to the indemnifying Party and promptly provide a copy to the indemnifying Party party of any complaint, summons, or other written or verbal notice that potential Losses within sixty (60) days after the Indemnitee receives in connection with any indemnified party becomes aware of such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claimpotential Losses. The indemnifying Party will party shall have the right to assume the defense of any suit or claim related to the Losses if it has assumed responsibility for the suit or claim in writing; however, if in the reasonable judgment of the indemnified party, such suit or claim involves an issue or matter which could have a materially adverse effect on the business operations or assets of the indemnified party, the indemnified party may waive its rights to indemnity under this Agreement and control the defense or settlement thereof, but in no event shall any such waiver be construed as a waiver of the indemnification claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the Indemnitee; provided, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other indemnification rights such party represented by such counsel may have at law or in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claimequity. If the indemnifying Party does party defends the suit or claim, the indemnified party may participate in (but not assume control) the defense of the indemnification thereof at its sole cost and expense. Neither party may settle a claim as described in this Section 15.4 (Conditions or action related to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim any Losses without the prior written consent of the indemnifying Partyother party, and the indemnifying Party will not settle or compromise the indemnification claim in if such settlement would impose any manner which would have an adverse effect monetary obligation on the Indemnitee’s interests (including other party or require the other party to submit to an injunction or otherwise limit the other party's rights under this Agreement. Any payment made by a party to settle any rights such claim or action shall be at its own cost and expense. With respect to any claim by one party against the other arising out of the performance or failure of performance of the other party under this Agreement, the parties expressly agree that the liability of such party to the other party for such breach shall be limited under this Agreement or the scope, validity, otherwise THE REGISTRANT HAS REQUESTED CONFIDENTIAL TREATMENT FOR CERTAIN PORTIONS OF THIS AGREEMENT. THOSE PORTIONS HAVE BEEN OMITTED FROM THIS COPY OF THE AGREEMENT AT THE PLACES INDICATED BY ASTERISKS (*); AND HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. at law or enforceability of any Patent Rights, Confidential Information, or other rights licensed equity to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, direct damages only and in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not no event shall a party be liable for any settlement punitive, exemplary or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification)consequential damages.
Appears in 1 contract
Conditions to Indemnification. Any A Person seeking indemnification under this Article XIII (the “IndemniteeIndemnified Party”) under this Article 15 in respect of a Alopexx Indemnity Claim or an BCI Indemnity Claim, as applicable (Indemnification; Limitation Of Liability; Insuranceeach, an “Indemnity Claim”) will shall give prompt written notice of the indemnity claim such Indemnity Claim to the indemnifying Party and promptly provide a copy to from whom indemnification is sought (the indemnifying Party of any complaint, summons, or other written or verbal notice “Indemnifying Party”); provided that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Indemnifying Party of liability to the Indemnitee is not contesting its obligation under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only XIII, and shall permit the Indemnifying Party to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the indemnifying Party investigation, defense, and reasonably acceptable to the Indemnitee; provided, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation settlement of such Indemnitee by Indemnity Claim; and further provided that the counsel retained by the indemnifying Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will shall (a) act reasonably and in good faith with respect to all matters relating to the settlement or disposition of such claimIndemnity Claim as the settlement or disposition relates to such Indemnified Party and (b) not settle or otherwise resolve such Indemnity Claim without the prior written consent of such Indemnified Party (which consent shall not be unreasonably conditioned, delayed, or withheld). Each Indemnified Party shall cooperate with the Indemnifying Party in its investigation, defense, and settlement of any such Indemnity Claim in all reasonable respects and shall have the right to be present in person or through counsel at all legal proceedings with respect to such Indemnity Claim. If the indemnifying Indemnifying Party does not assume and conduct the defense of the indemnification claim Indemnity Claim as described provided above within thirty (30) days, (i) the Indemnified Party may defend against, consent to the entry of any judgment, or enter into any settlement with respect to such Indemnity Claim in any manner the Indemnified Party may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, the Indemnifying Party in connection therewith), and (ii) the Indemnifying Party shall remain responsible to indemnify the Indemnified Party as provided in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will Article XIII. The Indemnifying Party shall have no obligation to do so. The Indemnitee will not settle or compromise liability for any settlement of Indemnity Claims entered into by the indemnification claim Indemnified Party without the prior written consent of the indemnifying Indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification).
Appears in 1 contract
Samples: Collaboration and License Agreement (Alopexx, Inc.)
Conditions to Indemnification. Any Person seeking indemnification As a condition to either Party’s (“Indemnifying Party”) obligations to indemnify, defend or hold the other Party (the “IndemniteeIndemnified Party”) harmless under this Article 15 Agreement, (Indemnification; Limitation Of Liability; Insurancei) will the Indemnified Party must give the Indemnifying Party prompt written notice of the indemnity claim to the indemnifying Party and promptly provide a copy to the indemnifying Party of any complaintactual or threatened losses, summonsclaims, demands, damages, expenses, suits, or other written actions, or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee whatsoever, including, but not limited to, costs and reasonable attorney's fees for which indemnification is claimed under this Article 15 Agreement (Indemnificationall of the foregoing collectively referred to in this Agreement as “Claim(s)”); Limitation Of Liability(ii) the Indemnified Party, promptly upon the request of the Indemnifying Party, must reasonably cooperate in the defense, settlement or compromise of any Claim(s); Insuranceand (iii) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Indemnifying Party will shall have the right to assume and control over the defense against the Claim(s) and over the terms of any proposed settlement or compromise thereof that does not impose upon the indemnification claim at its own expense with counsel selected by Indemnified Party any affirmative obligation other than the indemnifying payment of money against which the Indemnified Party and reasonably acceptable to the Indemniteeis indemnified; provided, however, that an Indemnitee will have the right to retain Indemnified Party, at the Indemnifying Party’s expense, may participate in such defense or settlement through counsel of its own counselchoosing if the Indemnified Party reasonably concludes that the defense of such claim is not being pursued diligently; and provided further, with that if the fees and expenses Indemnified Party rejects any reasonable compromise or settlement (“Settlement Proposal”), it may take over the defense, settlement or compromise of that Claim upon written notice to be paid by the indemnifying Indemnifying Party, if representation and, upon its receipt of such Indemnitee by said notice, the counsel retained by Indemnifying Party’s obligations to defend the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Indemnified Party will act reasonably and in good faith be automatically excused under this Agreement with respect to all matters relating that Claim (but not with respect to such claimany other Claim) and the Indemnifying Party’s indemnification and hold harmless obligations for that Claim (but not with respect to any other Claim) will be excused to the extent it exceeds the reasonable Settlement Proposal. If In the indemnifying Party does event the Parties do not assume agree on the reasonableness of the Indemnified Party's conclusion that the defense of such claim is not being pursued diligently, the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then Indemnifying Party may request that the Indemnitee may defend issue of whether the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Partydefense was being pursued diligently, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case only that issue may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification)litigated.
Appears in 1 contract
Samples: Collocation Agreement
Conditions to Indemnification. Any Person seeking indemnification The obligations and liabilities of ILCT, CPI, AAC and ASTeX hereunder with respect to its indemnities pursuant to this Section 8, resulting from any claim or other assertion of liability by third parties, shall be subject to the following terms and conditions:
(a) The Indemnified Party (the “Indemnitee”party seeking indemnification) must give the Indemnifying Party notice in writing within fifteen (15) days of (i) any claim or potential claim, (ii) the commencement of any action or proceeding, or (iii) the occurrence of any other event giving rise to indemnification rights under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give prompt written notice Section 8 with respect to a third party claim, and, in each case, the basis therefor and the amount, or an estimate of the indemnity claim to amount of the indemnifying Party and promptly provide a copy to the indemnifying Party of any complaintclaim, summonsprovided, or other written or verbal notice however, that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written give such notice will relieve within such fifteen (15) day period shall not affect the indemnifying Party of liability Indemnified Party's right to the Indemnitee be indemnified under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only Agreement unless the failure to give such notice within such time period adversely affects the extent such delay is prejudicial to the indemnifying Indemnifying Party’s 's ability to defend themselves against the claim giving rise to the Indemnified Party's claim for indemnification or settle to cure the default giving rise to such claim. The indemnifying Indemnifying Party will have at their sole cost and expense may, upon written notice to the right to Indemnified Party assume and control the defense of any such claim or legal proceeding if the indemnification Indemnifying Party acknowledges in writing their obligations to indemnify the Indemnified Party with respect to such claim and has counsel reasonably acceptable to the Indemnified Party. In such event, the Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense.
(b) If the Indemnifying Party within fifteen (15) days after notice of a claim hereunder fails to defend such claim, the Indemnified Party shall be entitled to undertake the defense, compromise or settlement of such claim at the reasonable expense of and for the account and risk of the Indemnifying Party subject to the right of the Indemnifying Party to cooperate in the defense of such claim with counsel selected by the indemnifying Party of their choosing and reasonably acceptable to the Indemnitee; providedIndemnified Party at any time prior to the settlement, howevercompromise or final determination thereof.
(c) The Indemnifying Party will not, that an Indemnitee will have without the right Indemnified Party's written consent, which consent shall not be required as relating to retain its own counsel, with the fees and expenses to be paid monetary payments by the indemnifying Indemnifying Party, if representation of such Indemnitee settle or compromise any claim or consent to any entry or judgment which does not include as an unconditional term thereof the giving by the counsel retained by claimant or the indemnifying plaintiff to the Indemnified Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith of a release from all liability with respect to all such claim which , as to any matters relating to such claim. If the indemnifying Party does other than monetary payments will not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do sobe unreasonably withheld or delayed. The Indemnitee will Indemnified Party shall not settle or compromise the any claim by a third party for which it is entitled to indemnification claim hereunder without the prior written consent of the indemnifying Indemnifying Party, unless suit shall have been instituted and the indemnifying Indemnified Party will not settle or compromise the indemnification claim in any manner which would shall have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under assumed the control of defense of such claim in accordance with Section 8.2(b).
(d) Notwithstanding the Indemniteeforegoing, which information will the parties acknowledge and agree that X'Xxxxxx, Broude & Xxxxxxx, Xxxxxxx & West LLP and Xxxxxx, Gesmer & Xxxxxxxxx, LLP shall be subject acceptable counsel to Article 13 defend, or participate in the defense of, claims hereunder.
(Confidentiality)e) Before seeking indemnification hereunder, the Indemnifying Party shall use its reasonable efforts to obtain the proceeds of any applicable insurance policies and apply such proceeds to the satisfaction of any claims. The indemnifying Party will not be liable for any settlement or other disposition Such insurance proceeds shall offset the liability of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification)hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Applied Science & Technology Inc)
Conditions to Indemnification. Any Person seeking indemnification In the event that any Third Party asserts a claim with respect to any matter for which a Party (the “IndemniteeIndemnified Party”) under this Article 15 is entitled to indemnification hereunder (Indemnificationa “Third Party Claim”), then the Indemnified Party shall promptly notify the Party obligated to indemnify the Indemnified Party (the “Indemnifying Party”) thereof; Limitation Of Liability; Insurance) will give prompt written notice provided, however, that no delay on the part of the indemnity claim to Indemnified Party in notifying the indemnifying Indemnifying Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will shall relieve the indemnifying Indemnifying Party of liability to the Indemnitee under this Article 15 from any obligation hereunder unless (Indemnification; Limitation Of Liability; Insurance) and then only to the extent such delay that) the Indemnifying Party is prejudicial prejudiced thereby.
(a) The Indemnifying Party shall have the right, exercisable by notice to the indemnifying Party’s ability Indemnified Party within ten (10) Business Days of receipt of notice from the Indemnified Party of the commencement of or assertion of any Third Party Claim, to defend assume direction and control of the defense, litigation, settlement, appeal or settle such claim. The indemnifying other disposition of the Third Party will have Claim (including the right to assume and control settle the defense of the indemnification claim at its own expense solely for monetary consideration) with counsel selected by the indemnifying Indemnifying Party and reasonably acceptable to the IndemniteeIndemnified Party; provided, howeverthat the Indemnifying Party shall seek the prior consent of any such Indemnified Party as to any settlement that would materially diminish or materially adversely affect the scope, exclusivity or duration of any Patents licensed under this Agreement, would require any payment by such Indemnified Party, would require an admission of legal wrongdoing in any way on the part of an Indemnified Party or would effect an amendment of this Agreement. In the case of any Third Party Claim that an Indemnitee will have is the subject of Section 9.3, Enzon shall be entitled to control the defense of such Third Party Claim subject to the remaining provisions of this Section 9.3.
(b) Within ten (10) days after the Indemnifying Party has given notice to the Indemnified Party of its intended exercise of its right to retain defend a Third Party Claim, the Indemnifying Party shall be entitled, at its own counselsole cost and expense, to assume and conduct such defense, with the fees and expenses to be paid counsel selected by the indemnifying Indemnifying Party, if representation . During such time as the Indemnifying Party is controlling the defense of such Indemnitee Third Party Claim, the Indemnified Party shall cooperate, and cause its Affiliates and agents to cooperate upon request of the Indemnifying Party in the defense or prosecution of the Third Party Claim, including by furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials or appeals as may reasonably be requested by the counsel retained by Indemnifying Party. In the indemnifying Party would be inappropriate due to actual or potential differing interests between event that the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Indemnifying Party does not assume notify the Indemnified Party of the Indemnifying Party's intent to defend any Third Party Claim within ten (10) Business Days after notice thereof, the Indemnified Party may (without further notice to the Indemnifying Party) undertake the defense thereof with counsel of its choice and at the indemnification claim as described in this Section 15.4 Indemnifying Party's reasonable expense (Conditions to Indemnificationincluding reasonable, out-of-pocket attorneys' fees and costs and expenses of enforcement or defense), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Indemnifying Party or the IndemniteeIndemnified Party, as the case may be, shall have the right to join in (including the right to conduct discovery, interview and examine witnesses and participate in all settlement conferences), will but not be unreasonably withheldcontrol, conditionedat its own expense, the defense of any Third Party Claim that the other Party is defending as provided in this Agreement.
(c) In no event may an Indemnified Party settle or delayed. The Indemnitee will reasonably cooperate with compromise any Third Party Claim for which it/he/she intends to seek indemnification from the indemnifying Indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached hereunder without the written prior consent of the indemnifying Indemnifying Party, or the indemnification provided under such Section 9.1, 9.2 or 9.3 as to such Third Party pursuant to this Section 15.4 (Conditions to Indemnification)Claim shall be null and void.
Appears in 1 contract
Samples: License Agreement (Evivrus, Inc.)
Conditions to Indemnification. Any Person seeking indemnification As a condition to either Party’s (“Indemnifying Party”) obligations to indemnify, defend or hold the other Party (the “IndemniteeIndemnified Party”) harmless under this Article 15 Agreement, (Indemnification; Limitation Of Liability; Insurancei) will the Indemnified Party must give the Indemnifying Party prompt written notice of the indemnity claim to the indemnifying Party and promptly provide a copy to the indemnifying Party of any complaintactual or threatened losses, summonsclaims, demands, damages, expenses, suits, or other written actions, or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee whatsoever, including, but not limited to, costs and reasonable attorney's fees for which indemnification is claimed under this Article 15 Agreement (Indemnificationall of the foregoing collectively referred to in this Agreement as “Claim(s)”); Limitation Of Liability(ii) the Indemnified Party, promptly upon the request of the Indemnifying Party, must reasonably cooperate in the defense, settlement or compromise of any Claim(s); Insuranceand (iii) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Indemnifying Party will shall have the right to assume and control over the defense against the Claim(s) and over the terms of any proposed settlement or compromise thereof that does not impose upon the indemnification claim at its own expense with counsel selected by Indemnified Party any affirmative obligation other than the indemnifying payment of money against which the Indemnified Party and reasonably acceptable to the Indemniteeis indemnified; provided, however, that an Indemnitee will have the right to retain Indemnified Party, at the Indemnifying Party’s expense, may participate in such defense or settlement through counsel of its own counselchoosing if the Indemnified Party reasonably concludes that the defense of such claim is not being pursued diligently; and provided further, with that if the fees and expenses Indemnified Party rejects any reasonable compromise or settlement (“Settlement Proposal”), it may take over the defense, settlement or compromise of that Claim upon written notice to be paid by the indemnifying Indemnifying Party, if representation and, upon its receipt of such Indemnitee by said notice, the counsel retained by Indemnifying Party’s obligations to defend the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Indemnified Party will act reasonably and in good faith be automatically excused under this Agreement with respect to all matters relating that Claim (but not with respect to such claimany other Claim) and the Indemnifying Party’s indemnification and hold harmless obligations for that Claim (but not with respect to any other Claim) will be excused to the extent it exceeds the reasonable Settlement Proposal. If In the indemnifying Party does event the Parties do not assume agree on the reasonableness of the Indemnified Party's conclusion that the defense of such claim is not being pursued diligently, the indemnification claim as described Indemnifying Party may request that the issue of whether the defense was being pursued diligently, and only that issue, be resolved through binding arbitration. Such a request will be made in this Section 15.4 (Conditions writing to Indemnification), then the Indemnitee may defend Indemnified Party and shall be controlled by the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent rules and procedures of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable CPR Institute for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification)Dispute Resolution.
Appears in 1 contract
Samples: Master Agreement
Conditions to Indemnification. Any Person The obligations and liabilities of Sterling under Section 9.1 will be subject to the following terms and conditions:
(a) Each party seeking indemnification (the “IndemniteeIndemnified Party”) under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will shall give prompt written notice (“Indemnification Claim Notice”) to Sterling of each claim for indemnification under this Agreement, specifying the indemnity claim to the indemnifying Party amount and promptly provide a copy to the indemnifying Party nature of any complaint, summons, such claim. In the event of any claim for indemnification hereunder resulting from or other written or verbal notice that the Indemnitee receives in connection with any claim or legal proceedings by a third party, such notice shall specify, if known, the amount or an estimate of the amount of liability arising therefrom.
(b) In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any Claim or legal proceeding, Sterling, at its sole cost and expense may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if Sterling acknowledges to the Indemnified Party in writing the obligation of Sterling to indemnify the Indemnified Party with respect to all elements of such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control If Sterling assumes the defense of the indemnification any such claim at its own expense with or legal proceeding, Sterling shall select counsel selected by the indemnifying Party and reasonably acceptable to the Indemnitee; provided, however, that an Indemnitee will have the right Indemnified Party to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume conduct the defense of such claims or legal proceeding and at the indemnification claim as described sole cost and expense of Sterling shall take all steps necessary in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do sodefense or settlement thereof. The Indemnitee will Indemnifying Party shall not settle or compromise the indemnification claim without the prior written consent of the indemnifying Partyto a settlement of, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability entry of any Patent Rightsjudgment arising from, Confidential Information, any such claim or other rights licensed to NVS by HMI hereunder)legal proceeding, without the prior written consent of the Indemnitee, Indemnified Party (which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will consent shall not be unreasonably withheld, conditioned, conditioned or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Indemnified Party will shall be entitled to participate in (but not be liable for control) the defense of any settlement such action, with its own counsel and at its own expense. If Sterling does not assume the defense of any such claim or other disposition litigation resulting therefrom within thirty (30) days after the date of the claims Indemnification Claim Notice, then prior to the assumption of the defense:
(i) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling or compromising such claim or litigation, after giving notice of the same to Sterling and after giving Sterling further opportunity to assume the defense, on such terms as the Indemnified Party may reasonably deem appropriate and all costs of litigation incurred by the Indemnitee if such settlement is reached without Indemnified Party shall be included in the written consent calculation of the indemnifying Losses of the Indemnified Party pursuant which are the subject of such claim or litigation, and the Indemnified Party shall be periodically reimbursed by Sterling for such costs upon reasonable request; and
(ii) Sterling shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If Sterling thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, Sterling shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
(c) Any indemnification payments due under this Section 15.4 (Conditions to Indemnification)Article IX shall be paid promptly.
Appears in 1 contract
Conditions to Indemnification. Any Person seeking indemnification If any Third Party asserts a Claim with respect to any matter for which a Party (the “IndemniteeIndemnified Party”) under this Article 15 is entitled to indemnification hereunder (Indemnificationa “Third Party Claim”), then the Indemnified Party shall promptly notify the Party obligated to indemnify the Indemnified Party (the “Indemnifying Party”) thereof; Limitation Of Liability; Insurance) will give prompt written notice provided, however, that no delay on the part of the indemnity claim to Indemnified Party in notifying the indemnifying Indemnifying Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will shall relieve the indemnifying Indemnifying Party of liability to the Indemnitee under this Article 15 from any obligation hereunder unless (Indemnification; Limitation Of Liability; Insurance) and then only to the extent such delay that) the Indemnifying Party is prejudicial prejudiced thereby.
(a) The Indemnifying Party shall have the right, exercisable by notice to the indemnifying Party’s ability Indemnified Party within ten (10) Business Days of receipt of notice from the Indemnified Party of the commencement of or assertion of any Third Party Claim, to defend assume direction and control of the defense, litigation, settlement, appeal or settle such claim. The indemnifying other disposition of the Third Party will have Claim (including the right to assume and control settle the defense of the indemnification claim at its own expense solely for monetary consideration) with counsel selected by the indemnifying Indemnifying Party and reasonably acceptable to the IndemniteeIndemnified Party; provided, howeverthat the Indemnifying Party shall obtain the prior consent of any such Indemnified Party as to any settlement that would materially diminish or materially adversely affect the scope, exclusivity or duration of any Patents licensed under this Agreement, would require any payment by such Indemnified Party, would require an admission of legal wrongdoing in any way on the part of an Indemnified Party or would effect an amendment of this Agreement.
(b) In the case of a Claim under Section 12.3(a), Enzon shall notify Santaris if such a Claim is commenced or threatened. Enzon shall assume control of the defense, litigation, settlement, appeal or other disposition of such a Claim with counsel selected by Enzon and reasonably acceptable to Santaris; provided, that an Indemnitee will Enzon shall keep Santaris reasonably informed as to the status of such Claim and negotiations in respect thereof, shall consult with Santaris from time to time about material matters and consider in good faith any views expressed by Santaris, Santaris shall have the right to retain participate in the defense of such Claim at its own counselexpense, and Enzon shall obtain the prior consent of Santaris as to any settlement thereof (such consent not to be unreasonably withheld).
(c) Within ten (10) Business Days after the Indemnifying Party has given notice to the Indemnified Party of its intended exercise of its right to defend a Third Party Claim, the Indemnifying Party shall be entitled, at its sole cost and expense, to assume and conduct such defense, with the fees and expenses to be paid counsel selected by the indemnifying Indemnifying Party and reasonably acceptable to the Indemnified Party, if representation . During such time as the Indemnifying Party is controlling the defense of such Indemnitee Third Party Claim, the Indemnified Party shall cooperate, and cause its Affiliates and agents to cooperate upon request of the Indemnifying Party in the defense or prosecution of the Third Party Claim, including by furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials or appeals as may reasonably be requested by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claimIndemnifying Party. If the indemnifying Indemnifying Party does not assume notify the Indemnified Party of the Indemnifying Party’s intent to defend any Third Party Claim within ten (10) Business Days after notice thereof, the Indemnified Party may (without further notice to the Indemnifying Party) undertake the defense thereof with counsel of its choice and at the indemnification claim as described in this Section 15.4 Indemnifying Party’s reasonable expense (Conditions to Indemnificationincluding reasonable, out-of-pocket attorneys’ fees and costs and expenses of enforcement or defense), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Indemnifying Party or the IndemniteeIndemnified Party, as the case may be, shall have the right to join in (including the right to conduct discovery, interview and examine witnesses and participate in all settlement conferences), will but not be unreasonably withheldcontrol, conditionedat its own expense, the defense of any Third Party Claim that the other Party is defending as provided in this Agreement.
(d) In no event may an Indemnified Party settle or delayed. The Indemnitee will reasonably cooperate with compromise any Third Party Claim for which it intends to seek indemnification from the indemnifying Indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached hereunder without the written prior consent of the indemnifying Indemnifying Party, or the indemnification provided under such Section 12.1, 12.2 or 12.2(c) as to such Third Party pursuant to this Section 15.4 (Conditions to Indemnification)Claim shall be null and void.
Appears in 1 contract
Samples: License and Collaboration Agreement (Evivrus, Inc.)
Conditions to Indemnification. Any Person The right to any indemnity specified in Article 18, Article 19.1 and Article 19.2 shall be subject to the following conditions:
(a) The Party seeking indemnification (shall promptly advise the “Indemnitee”) under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give prompt other Party in writing of the filing of any suit or of any written claim upon receipt thereof and shall provide the other Party, at its request and at the indemnifying Party’s expense, with copies of all documentation and CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***...***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. reasonable assistance relevant to such suit or claim. Notwithstanding anything to the foregoing, a delay in providing written notice of the a suit or written claim shall not relieve a Party from its indemnity claim to the indemnifying Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent obligations unless such delay is prejudicial to the indemnifying materially prejudices a Party’s ability to defend the suit or settle such claim. .
(b) The Party seeking indemnification shall not reach a compromise or settlement without the prior written approval of the other Party, which approval shall not be unreasonably withheld or delayed, provided that the indemnifying Party has agreed in writing and without limitation to defend the applicable claim.
(c) The indemnifying Party will have the right to shall assume and control the defense of the any claim or suit thereof and shall satisfy any judgments rendered by a court of competent jurisdiction in such suits and shall make all settlement payments. The Party seeking indemnification claim may participate in any defense at its own expense with expense, using counsel selected by the indemnifying Party and reasonably acceptable to the Indemnitee; provided, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification).
Appears in 1 contract
Samples: Authorization to Proceed (Iridium Communications Inc.)
Conditions to Indemnification. Any Person seeking indemnification (a) In the event that any Third Party asserts a claim with respect to any matter for which a Party (the “IndemniteeIndemnified Party”) is entitled to indemnification under this Article 15 Section 9.7, 13.1, or 13.2 (Indemnificationa “Third Party Claim”), then the Indemnified Party shall promptly notify the Party obligated to indemnify the Indemnified Party (the “Indemnifying Party”) thereof; Limitation Of Liability; Insurance) will give prompt written notice provided, however, that no delay on the part of the indemnity claim to Indemnified Party in notifying the indemnifying Indemnifying Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will shall relieve the indemnifying Indemnifying Party of liability to the Indemnitee under this Article 15 from any obligation hereunder unless (Indemnification; Limitation Of Liability; Insurance) and then only to the extent such delay that) the Indemnifying Party is prejudicial prejudiced thereby.
(b) The Indemnifying Party shall have the right, exercisable by notice to the indemnifying Party’s ability Indemnified Party within ten (10) Business Days of receipt of notice from the Indemnified Party of the commencement of or assertion of any Third Party Claim, to defend assume direction and control of the defense, litigation, settlement, appeal or settle such claim. The indemnifying other disposition of the Third Party will have Claim (including the right to assume and control settle the defense of the indemnification claim at its own expense solely for monetary consideration) with counsel selected by the indemnifying Indemnifying Party and reasonably acceptable to the IndemniteeIndemnified Party; providedprovided that (i) the Indemnifying Party has sufficient financial resources, howeverin the reasonable judgment of the Indemnified Party, to satisfy the amount of any adverse monetary judgment that an Indemnitee will have is sought, (ii) the Third Party Claim solely seeks monetary damages and (iii) the Indemnifying Party expressly agrees in writing that as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the Third Party Claim in full (the conditions set forth in clauses (i), (ii) and (iii) above are collectively referred to as the “Litigation Conditions”).
(c) Within ten (10) Business Days after the Indemnifying Party has given notice to the Indemnified Party of its intended exercise of its right to retain its own counseldefend a Third Party Claim, with the fees and expenses Indemnified Party shall give notice to be paid by the indemnifying Party, if representation Indemnifying Party of such Indemnitee by any objection thereto based upon the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claimLitigation Conditions. If the indemnifying Indemnified Party reasonably so objects, the Indemnified Party shall continue to defend the Third Party Claim, at the expense of the Indemnifying Party, until such time as such objection is withdrawn. If no such notice is given, or if any such objection is withdrawn, the Indemnifying Party shall be entitled, at its sole cost and expense, to assume and conduct such defense, with counsel selected by the Indemnifying Party. During such time as the Indemnifying Party is controlling the defense of such Third Party Claim, the Indemnified Party shall cooperate, and cause its Affiliates and agents to cooperate upon request of the Indemnifying Party in the defense or prosecution of the Third Party Claim, including by furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials or appeals as may reasonably be requested by the Indemnifying Party. In the event that the Indemnifying Party does not assume satisfy the Litigation Conditions or does not notify the Indemnified Party of the Indemnifying Party’s intent to defend any Third Party Claim within ten (10) Business Days after notice thereof, the Indemnified Party may (without further notice to the Indemnifying Party) undertake the defense thereof with counsel of its choice and at the indemnification claim as described in this Section 15.4 Indemnifying Party’s reasonable expense (Conditions to Indemnificationincluding reasonable, out-of-pocket attorneys’ fees and costs and expenses of enforcement or defense), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Indemnifying Party or the IndemniteeIndemnified Party, as the case may be, shall have the right to join in (including the right to conduct discovery, interview and examine witnesses and participate in all settlement conferences), will but not be unreasonably withheldcontrol, conditionedat its own expense, or delayed. the defense of any Third Party Claim that the other Party is defending as provided in this Agreement.
(d) The Indemnitee will reasonably cooperate with the indemnifying Indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemniteeshall not, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written prior consent of the indemnifying Indemnified Party, enter into any compromise or settlement which commits the Indemnified Party pursuant to this take or forbear to take any action.
(e) In no event may an Indemnified Party settle or compromise any Third Party Claim for which it/he/she intends to seek indemnification from the Indemnifying Party hereunder without the prior consent of the Indemnifying Party, or the indemnification provided under such Section 15.4 (Conditions 13.1, 13.2 or 13.3 as to Indemnification)such Third Party Claim shall be null and void.
Appears in 1 contract
Samples: Collaborative Research and License Agreement (Incyte Corp)
Conditions to Indemnification. Any Person seeking As a condition to a Party's right to receive indemnification (the “Indemnitee”) under this Article 15 Section 9, it shall: (Indemnificationi) promptly notify ("Claim Notice") the other Party as soon as it becomes aware of a claim or suit for which indemnification may be sought pursuant hereto (provided that the failure to give a Claim Notice promptly shall not prejudice the rights of an indemnified Party except to the extent that the failure to give such prompt notice CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. materially adversely affects the ability of the indemnifying Party to defend the claim or suit); Limitation Of Liability(ii) cooperate with the indemnifying Party in the defense of such claim or suit, at the expense of the indemnifying Party; Insuranceand (iii) will give prompt if the indemnifying Party confirms in writing to the indemnified Party its intention to defend such claim or suit within ten (10) days of receipt of the Claim Notice, permit the indemnifying Party to control the defense of such claim or suit, including without limitation the right to select defense counsel; provided that if the indemnifying Party fails to (x) provide such confirmation in writing within the ten (10) day period; or (y) diligently and reasonably defend such suit or claim at any time, its right to defend the claim or suit shall terminate immediately in the case of (x) and otherwise upon twenty (20) days' written notice of the indemnity claim to the indemnifying Party and promptly provide a copy to the indemnifying indemnified Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to may assume and control the defense of such claim or suit at the indemnification claim at its own sole expense with counsel selected by of the indemnifying Party and reasonably acceptable to may settle or compromise such claim or suit without the Indemnitee; providedconsent of the indemnifying Party. In no event, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by may the indemnifying Party would be inappropriate due to actual compromise or potential differing interests between settle any claim or suit in a manner which admits fault or negligence on the Indemnitee and part of any other party represented indemnified Party or that otherwise materially affects such indemnified Party's rights under this Agreement or requires any payment by such counsel in such proceedings. The indemnifying an indemnified Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying such indemnified Party. Subject as expressly provided above, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights no liability under this Agreement Section 10 with respect to claims or the scope, validity, suits settled or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), compromised without the its prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not . Affymetrix' liability under Section 9.1(iii) shall be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available limited to an amount equal to the indemnifying Party [***]. N-Mer's liability under Section 9.2(iii) shall be limited to an amount equal to the [***]. In the event that the Probe Arrays are held to infringe and their use is enjoined as a result of infringement for which it has indemnified N-Mer, Affymetrix [***], and accept the return of unused Probe Arrays. This paragraph states the entire liability for infringement of intellectual property rights and is in lieu of all pertinent information under the control of the Indemniteeother warranties, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement express or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this implied except as stated in Section 15.4 (Conditions to Indemnification)8.
Appears in 1 contract
Samples: Product Development and Supply Agreement (Hyseq Inc)
Conditions to Indemnification. Any Person seeking indemnification (The obligations and liabilities of the “Indemnitee”) Company and the Parent under this Article 15 XII resulting from any Indemnified Claim shall be subject to the following additional terms and conditions:
(Indemnification; Limitation Of Liability; Insurancea) will The Indemnified Party asserting an Indemnified Claim shall give prompt written notice to the Company and the Parent of any Indemnified Claim which is asserted against, resulting to, imposed upon or incurred by such Purchaser and which may give rise to liability of the indemnity claim Company or the Parent pursuant to the indemnifying Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 XII, stating (Indemnification; Limitation Of Liability; Insurance) only to the extent known or reasonably anticipated) the nature and basis of such delay is prejudicial Indemnified Claim and the amount thereof. The omission of an Indemnified Party to so notify the Company or the Parent of any Indemnified Claim shall not relieve the Company and the Parent from any liability it may have hereunder except to the indemnifying Party’s extent that (A) the liability was caused or increased by such omission, or (B) the ability of the Company or the Parent to defend or settle such claimreduce the liability was adversely affected by the omission. The indemnifying Indemnified Party will have the right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the Indemnitee; provided, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will shall not settle or compromise the any claim by any third party for which it is entitled to indemnification claim hereunder without the prior written consent of the indemnifying Party, Company and the indemnifying Party will not settle or compromise the indemnification claim in any manner Parent (which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will shall not be unreasonably delayed or withheld).
(b) The Company and the Parent may engage counsel with respect to any such Indemnified Claim, conditionedthe representation (including the compromise or settlement of any Indemnified Claim) to be undertaken on behalf of the Indemnified Party. In the event the Company and/or the Parent elect not to undertake the defense of such Indemnified Claim by its own counsel, the Indemnified Party will undertake the defense thereof by counsel or delayedother representatives designated by it. The Indemnitee will reasonably cooperate If either the Parent or the Company assumes the defense of any third party claim, the Indemnified Party shall be entitled to participate in but not control the defense of such third party claim with its own counsel and at its own cost and expense; provided, however, that if the Indemnified Party asserts that there exists a conflict of interest that would make it inappropriate for the same counsel to represent the Parent or the Company and the Indemnified Party, then the Parent and the Company shall reimburse the Indemnified Party for the reasonable fees and expenses of separate counsel, to the extent such fees and expenses are incurred solely in connection with the indemnifying Party at the indemnifying Party’s expense and will make available matters with respect to which there is a conflict of interest. Notwithstanding anything in this Section 12.3 to the indemnifying Party all pertinent information under contrary, the control of Parent and the IndemniteeCompany will not, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Indemnified Party, (i) settle or compromise any third party claim or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party pursuant to this Section 15.4 of a written release from all liability in respect of such third party claim or (Conditions to Indemnification)ii) settle or compromise any third party claim 53 49 in any manner that (A) involves the sale, forfeiture or loss of, or the creation of any Encumbrance on, any property of such Indemnified Party or (B) involves equitable remedies against the Indemnified Party or any of its affiliates.
Appears in 1 contract
Samples: Unit Purchase Agreement (GPPW Inc)
Conditions to Indemnification. Any Person seeking indemnification (the “Indemnitee”) under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give prompt written notice The obligations of the indemnity claim to the indemnifying Party under Sections 11.01 and promptly provide a copy 11.02 are conditioned upon the delivery of written notice to the indemnifying Party of any complaint, summons, or other written or verbal notice that potential Liability promptly after the Indemnitee receives in connection with any indemnified Party becomes aware of such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of potential Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will shall have the right to assume and control the defense of the indemnification any suit or claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable related to the IndemniteeLiability if it has assumed responsibility for the suit or claim in writing; provided, however, if in the reasonable judgment of the indemnified Party, such suit or claim involves an issue or matter that an Indemnitee will could have a materially adverse effect on the right business operations or assets of the indemnified Party, the indemnified Party may retain control of the defense or settlement thereof by providing written notice of such effect to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation but in no event shall such action or notice be construed as a waiver of such Indemnitee by any indemnification rights that the counsel retained by the indemnifying indemnified Party would be inappropriate due to actual may have at law or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claimequity. If the indemnifying Party does defends the suit or claim, the indemnified Party may participate in (but not assume control) the defense thereof at its sole cost and expense. The foregoing notwithstanding, the Parties acknowledge and agree that failure of the indemnification claim as described in this Section 15.4 (Conditions indemnified Party to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and promptly notify the indemnifying Party will of a potential Liability shall not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validityconstitute a waiver of, or enforceability of any Patent Rightsresult in the loss of, Confidential Information, such Party’s right to indemnification under Section 11.01 or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee11.02, as appropriate, except to the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at extent that the indemnifying Party’s expense and will make available rights, and/or its ability to the indemnifying Party all pertinent information under the control of the Indemniteedefend against such Liability, which information will be subject are materially prejudiced by such failure to Article 13 (Confidentiality)notify. The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification).*** CERTAIN INFORMATION IN THIS DOCUMENT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. CONFIDENTIAL TREATMENT REQUESTED
Appears in 1 contract
Samples: Exclusive Patent License Agreement
Conditions to Indemnification. Any Person seeking As a condition to a Party's right to receive indemnification (the “Indemnitee”) under this Article 15 Section 9, it shall: (Indemnificationi) promptly notify ("Claim Notice") the other Party as soon as it becomes aware of a claim or suit for which indemnification may be sought pursuant hereto (provided that the failure to give a Claim Notice promptly shall not prejudice the rights of an indemnified Party except to the extent that the failure to give such prompt notice materially adversely affects the ability of the indemnifying Party to defend the claim or suit); Limitation Of Liability(ii) cooperate with the indemnifying Party in the defense of such claim or suit, at the expense of the indemnifying Party; Insuranceand (iii) will give prompt if the indemnifying Party confirms in writing to the indemnified Party its intention to defend such claim or suit within [***] of receipt of the Claim Notice, permit the indemnifying Party to control the defense of such claim or suit, including without limitation the right to select defense counsel; provided that if the indemnifying Party fails to (x) provide such confirmation in writing within the [***] period; or (y) diligently and reasonably defend such suit or claim at any time, its right to defend the claim or suit shall terminate immediately in the case of (x) and otherwise upon [***] written notice of the indemnity claim to the indemnifying Party and promptly provide a copy to the indemnifying indemnified Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to may assume and control the defense of such claim or suit at the indemnification claim at its own sole expense with counsel selected by of the indemnifying Party and reasonably acceptable to may settle or compromise such claim or suit without the Indemnitee; providedconsent of the indemnifying Party. In no event, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by may the indemnifying Party would be inappropriate due to actual compromise or potential differing interests between settle any claim or suit in a manner which admits fault or negligence on the Indemnitee and part of any other party represented indemnified Party or that otherwise materially affects such indemnified Party's rights under this Agreement or requires any payment by such counsel in such proceedings. The indemnifying an indemnified Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying such indemnified Party. Subject as expressly provided above, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights no liability under this Agreement Section 10 with respect to claims or the scope, validity, suits settled or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), compromised without the its prior written consent consent. Affymetrix' liability under Section 9.1(iii) shall be limited to [***]. N-Mer's liability under Section 9.2(iii) shall be limited to [***]. In the event that the Probe Arrays [***]. This paragraph states the entire liability for [***] and is in lieu of the Indemniteeall other warranties, which consent, express or implied except as stated in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification)8.
Appears in 1 contract
Samples: Product Development and Supply Agreement (Hyseq Inc)
Conditions to Indemnification. Any Person seeking indemnification If any Third Party asserts a Claim with respect to any matter for which a Party (the “IndemniteeIndemnified Party”) under this Article 15 is entitled to indemnification hereunder (Indemnificationa “Third Party Claim”), then the Indemnified Party shall promptly notify the Party obligated to indemnify the Indemnified Party (the “Indemnifying Party”) thereof; Limitation Of Liability; Insurance) will give prompt written notice provided, however, that no delay on the part of the indemnity claim to Indemnified Party in notifying the indemnifying Indemnifying Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will shall relieve the indemnifying Indemnifying Party of liability to the Indemnitee under this Article 15 from any obligation hereunder unless (Indemnification; Limitation Of Liability; Insurance) and then only to the extent such delay that) the Indemnifying Party is prejudicial prejudiced thereby.
(a) The Indemnifying Party shall have the right, exercisable by notice to the indemnifying Party’s ability Indemnified Party within ten (10) Business Days of receipt of notice from the Indemnified Party of the commencement of or assertion of any Third Party Claim, to defend assume direction and control of the defense, litigation, settlement, appeal or settle such claim. The indemnifying other disposition of the Third Party will have Claim (including the right to assume and control settle the defense of the indemnification claim at its own expense solely for monetary consideration) with counsel selected by the indemnifying Indemnifying Party and reasonably acceptable to the IndemniteeIndemnified party; provided, howeverthat the Indemnifying Party shall obtain the prior consent of any such Indemnified Party as to any settlement that would materially diminish or materially adversely affect the scope, exclusivity or duration of any Patents licensed under this Agreement, would require any payment by such Indemnified Party, would require an admission of legal wrongdoing in any way on the part of an Indemnified Party or would effect an amendment of this Agreement.
(b) In the case of a Claim under Section 12.3(a), Enzon shall notify Santaris if such a Claim is commenced or threatened. Enzon shall assume control of the defense, litigation, settlement, appeal or other disposition of such a Claim with counsel selected by Enzon and reasonably acceptable to Santaris; provided, that an Indemnitee will Enzon shall keep Santaris reasonably informed as to the status of such Claim and negotiations in respect thereof, shall consult with Santaris from time to time about material matters and consider in good faith any views expressed by Santaris, Santaris shall have the right to retain participate in the defense of such Claim at its own counselexpense, and Enzon shall obtain the prior consent of Santaris as to any settlement thereof (such consent not to be reasonably withheld).
(c) Within ten (10) Business Days after the Indemnifying Party has given notice to the Indemnified Party of its intended exercise of its right to defend a Third Party Claim, the Indemnifying Party shall be entitled, at its sole cost and expense, to assume and conduct such defense, with the fees and expenses to be paid counsel selected by the indemnifying Indemnifying Party and reasonably acceptable to the Indemnified Party, if representation . During such time as the Indemnifying Party is controlling the defense of such Indemnitee Third Party Claim, the Indemnified Party shall cooperate, and cause its Affiliates and agents to cooperate upon request of the Indemnifying Party in the defense or prosecution of the Third Party Claim, including by furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials or appeals as may reasonably be requested by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claimIndemnifying Party. If the indemnifying Indemnifying Party does not assume notify the Indemnified Party of the Indemnifying Party’s intent to defend any Third Party Claim within ten (10) Business Days after notice thereof, the Indemnified Party may (without further notice to the Indemnifying Party) undertake the defense thereof with counsel of its choice and at the indemnification claim as described in this Section 15.4 Indemnifying Party’s reasonable expense (Conditions to Indemnificationincluding reasonable, out-of-pocket attorneys’ fees and costs and expenses of enforcement or defense), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Indemnifying Party or the IndemniteeIndemnified Party, as the case may be, shall have the right to join in (including the right to conduct discovery, interview and examine witnesses and participate in all settlement conferences), will but not be unreasonably withheldcontrol, conditionedat its own expense, the defense of any Third Party Claim that the other Party is defending as provided in this Agreement.
(d) In no event may an Indemnified Party settle or delayed. The Indemnitee will reasonably cooperate with compromise any Third Party Claim for which it intends to seek indemnification from the indemnifying Indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached hereunder without the written prior consent of the indemnifying Indemnifying Party, or the indemnification provided under such Section 12.1, 12.2 or 12.3 as to such Third Party pursuant to this Section 15.4 (Conditions to Indemnification)Claim shall be null and void.
Appears in 1 contract
Samples: License and Collaboration Agreement (Enzon Pharmaceuticals Inc)
Conditions to Indemnification. Any Person A Party seeking indemnification recovery under this Article 7 (the “IndemniteeIndemnified Party”) under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will in respect of a Claim shall give prompt written notice of the indemnity claim such Claim to the indemnifying Party and promptly provide a copy to from whom indemnification is sought (the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying “Indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the Indemnitee”); provided, however, that an Indemnitee will have failure to give such notice shall not relieve the right Indemnifying Party of its obligation to retain its own counsel, with the fees and expenses to be paid by the indemnifying Partyprovide indemnification hereunder except, if representation and to the extent that such failure materially and adversely affects the ability of the Indemnifying Party to defend the applicable suit, claim or demand. Provided that the Indemnifying Party is not contesting its obligation under this Article 7, the Indemnified Party shall permit the Indemnifying Party to control any litigation relating to such Claim and the disposition of such Indemnitee by Claim; and further provided, that the counsel retained by the indemnifying Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will shall (a) act reasonably and in good faith with respect to all matters relating to the settlement or disposition of such claim. If Claim as the indemnifying settlement or disposition relates to such Indemnified Party does not assume the defense of the indemnification claim as described in this Section 15.4 and (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will b) not settle or compromise the indemnification otherwise resolve such claim without the prior written consent of the indemnifying Party, and the indemnifying such Indemnified Party will not settle or compromise the indemnification claim in any manner (which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will shall not be unreasonably withheld, conditioned, conditioned or delayed). The Indemnitee will reasonably Each Indemnified Party shall cooperate with the indemnifying Indemnifying Party in its defense of any such Claim in all reasonable respects and shall have the right to be present in person or through counsel, at its own expense, at all legal proceedings with respect to such Claim. Each Indemnified Party shall have the indemnifying Party’s expense right to be represented by independent counsel, at its own expense. If the Indemnifying Party does not assume and will make available conduct the defense of the Claim as provided above, (x) the Indemnified Party may defend against, consent to the indemnifying Party all pertinent information under the control entry of the Indemniteeany judgment, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for or enter into any settlement with respect to such Claim in any manner the Indemnified Party may deem reasonably appropriate (and the Indemnified Party need not consult with, or other disposition of obtain any consent from, the claims Indemnifying Party in connection therewith), and (y) the Indemnifying Party shall remain responsible for reimbursing the Indemnified Party for all reasonable costs incurred by the Indemnitee if such settlement is reached without the written consent of the indemnifying Indemnified Party pursuant to as provided in this Section 15.4 (Conditions to Indemnification)Article 7.
Appears in 1 contract
Samples: Exclusive License Agreement (Alto Neuroscience, Inc.)
Conditions to Indemnification. Any Person seeking indemnification If any Third Party asserts a Claim with respect to any matter for which a Party (the “IndemniteeIndemnified Party”) under this Article 15 is entitled to indemnification hereunder (Indemnificationa “Third Party Claim”), then the Indemnified Party shall promptly notify the Party obligated to indemnify the Indemnified Party (the “Indemnifying Party”) thereof; Limitation Of Liability; Insurance) will give prompt written notice provided, however, that no delay on the part of the indemnity claim to Indemnified Party in notifying the indemnifying Indemnifying Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will shall relieve the indemnifying Indemnifying Party of liability to the Indemnitee under this Article 15 from any obligation hereunder unless (Indemnification; Limitation Of Liability; Insurance) and then only to the extent such delay that) the Indemnifying Party is prejudicial prejudiced thereby.
(a) The Indemnifying Party shall have the right, exercisable by notice to the indemnifying Party’s ability Indemnified Party within ten (10) Business Days of receipt of notice from the Indemnified Party of the commencement of or assertion of any Third Party Claim, to defend assume direction and control of the defense, litigation, settlement, appeal or settle such claim. The indemnifying other disposition of the Third Party will have Claim (including the right to assume and control settle the defense of the indemnification claim at its own expense solely for monetary consideration) with counsel selected by the indemnifying Indemnifying Party and reasonably acceptable to the IndemniteeIndemnified Party; provided, howeverthat the Indemnifying Party shall obtain the prior consent of any such Indemnified Party as to any settlement that would materially diminish or materially adversely affect the scope, exclusivity or duration of any Patents licensed under this Agreement, would require any payment by such Indemnified Party, would require an admission of legal wrongdoing in any way on the part of an Indemnified Party or would effect an amendment of this Agreement.
(b) In the case of a Claim under Section 12.3(a), Enzon shall notify Santaris if such a Claim is commenced or threatened. Enzon shall assume control of the defense, litigation, settlement, appeal or other disposition of such a Claim with counsel selected by Enzon and reasonably acceptable to Santaris; provided, that an Indemnitee will Enzon shall keep Santaris reasonably informed as to the status of such Claim and negotiations in respect thereof, shall consult with Santaris from time to time about material matters and consider in good faith any views expressed by Santaris, Santaris shall have the right to retain participate in the defense of such Claim at its own counselexpense, and Enzon shall obtain the prior consent of Santaris as to any settlement thereof (such consent not to be unreasonably withheld).
(c) Within ten (10) Business Days after the Indemnifying Party has given notice to the Indemnified Party of its intended exercise of its right to defend a Third Party Claim, the Indemnifying Party shall be entitled, at its sole cost and expense, to assume and conduct such defense, with the fees and expenses to be paid counsel selected by the indemnifying Indemnifying Party and reasonably acceptable to the Indemnified Party, if representation . During such time as the Indemnifying Party is controlling the defense of such Indemnitee Third Party Claim, the Indemnified Party shall cooperate, and cause its Affiliates and agents to cooperate upon request of the Indemnifying Party in the defense or prosecution of the Third Party Claim, including by furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials or appeals as may reasonably be requested by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claimIndemnifying Party. If the indemnifying Indemnifying Party does not assume notify the Indemnified Party of the Indemnifying Party’s intent to defend any Third Party Claim within ten (10) Business Days after notice thereof, the Indemnified Party may (without further notice to the Indemnifying Party) undertake the defense thereof with counsel of its choice and at the indemnification claim as described in this Section 15.4 Indemnifying Party’s reasonable expense (Conditions to Indemnificationincluding reasonable, out-of-pocket attorneys’ fees and costs and expenses of enforcement or defense), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Indemnifying Party or the IndemniteeIndemnified Party, as the case may be, shall have the right to join in (including the right to conduct discovery, interview and examine witnesses and participate in all settlement conferences), will but not be unreasonably withheldcontrol, conditionedat its own expense, the defense of any Third Party Claim that the other Party is defending as provided in this Agreement.
(d) In no event may an Indemnified Party settle or delayed. The Indemnitee will reasonably cooperate with compromise any Third Party Claim for which it intends to seek indemnification from the indemnifying Indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached hereunder without the written prior consent of the indemnifying Indemnifying Party, or the indemnification provided under such Section 12.1, 12.2 or 12.3 as to such Third Party pursuant to this Section 15.4 (Conditions to Indemnification)Claim shall be null and void.
Appears in 1 contract
Samples: License and Collaboration Agreement (Enzon Pharmaceuticals Inc)
Conditions to Indemnification. Any Person seeking indemnification (the “"Indemnitee”") under this Article 15 Section 12 (Indemnification; Limitation Of Liability; Insurance) will give prompt written notice of the indemnity claim to the indemnifying Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s 's failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 Section 12 (Indemnification; Limitation Of of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s 's ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the Indemnitee; provided, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 12.3 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s 's interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS BioNTech by HMI Biotheus hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s 's expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 10.1 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 12.3 (Conditions to Indemnification).
Appears in 1 contract
Samples: Collaboration, License and Option Agreement (BioNTech SE)
Conditions to Indemnification. Any Person seeking A person or entity that intends to claim indemnification under Section 7.1 or 7.2, as the case may be (the “"Indemnitee”"), shall promptly notify the other Party (the "Indemnitor") under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give prompt written notice of the indemnity claim to the indemnifying Party and promptly provide a copy to the indemnifying Party of any complaintloss, summonsclaim, damage, liability or other written or verbal notice that action in respect of which the Indemnitee receives in connection intends to claim such indemnification, and the Indemnitor shall assume the defense thereof with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability counsel mutually satisfactory to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent whether or not such delay claim is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the Indemniteerightfully brought; provided, however, that in any event an Indemnitee will shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying PartyIndemnitor if Indemnitor does not assume the defense, or if representation of such Indemnitee by the counsel retained by the indemnifying Party Indemnitor would be inappropriate due to actual or potential differing interests between the such Indemnitee and any other party person represented by such counsel in such proceedings. The indemnifying Party will act reasonably Indemnitee shall permit the Indemnitor to assume direction and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume control of the defense of the indemnification claim as described in this Section 15.4 (Conditions claim, including the right to Indemnification)settle the suit or consent to an adverse judgment thereto, then and the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying Party will Indemnitee shall not settle be required unless such settlement or compromise the indemnification claim in consent imposes any manner which would have an adverse effect obligation on the Indemnitee or materially impairs the Indemnitee’s interests ('s rights in or to any Licensed Patent, including any rights under this Agreement or the scope, validity, or enforceability Agreement. The indemnity agreement in Sections 7.1 and 7.2 shall not apply to amounts paid in settlement of any Patent Rightsloss, Confidential Informationclaim, damage, liability or other rights licensed to NVS by HMI hereunder), action if such settlement is effected without the prior written consent of the IndemniteeIndemnitor, which consentconsent shall not be withheld or delayed unreasonably. The failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, in each case (by only if prejudicial to its ability to defend such action, shall relieve such Indemnitor of any liability to the indemnifying Party Indemnitee under Section 7.1 or the Indemnitee7.2, as the case may be), but the omission so to deliver notice to the Indemnitor will not be unreasonably withheldrelieve it of any liability that it may have to any Indemnitee otherwise than under Section 7.1 or 7.2, conditionedas the case may be. Any Indemnitee under this Section 7, or delayed. The Indemnitee will reasonably and its officers, directors, employees and agents, shall cooperate fully with the indemnifying Party at Indemnitor and its legal representatives in the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control investigations of the Indemniteeany action, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement claim or other disposition of the claims liability covered by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification)indemnification.
Appears in 1 contract
Samples: Development Collaboration and License Agreement (Alteon Inc /De)
Conditions to Indemnification. Any Person seeking indemnification (a) The indemnified party shall give the “Indemnitee”) under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give indemnifying party prompt written notice of (i) the indemnity claim to the indemnifying Party and promptly provide a copy to the indemnifying Party institution of any complaintsuit against the indemnified party for which it may seek indemnification under this Article XIII and (ii) any claims, summonsincluding any claims asserted or made by any Regulatory Authority having jurisdiction, or other written or verbal notice that against the Indemnitee receives in connection with any such claimindemnified party for which it may seek indemnification under this Article XIII. An Indemnitee’s The failure to deliver written give such notice will shall not relieve the indemnifying Party of party from any liability that it may have to the Indemnitee indemnified party under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only XIII except to the extent such delay is prejudicial to that the indemnifying Partyparty’s ability to defend such suit or settle claim is materially prejudiced by the failure to give such claimnotice. The indemnifying Party will have the right party shall be entitled to assume and control participate in the defense of the indemnification such suit or claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the Indemniteeassume control of such defense; provided, however, that if it assumes such defense:
(i) the indemnified party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim;
(ii) the indemnifying party shall obtain the prior written approval of the indemnified party before entering into any settlement of such claim or ceasing to defend against such claim, if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief would be imposed against the indemnified party; and
(iii) the indemnifying party shall not consent to the entry of any judgment or enter into any settlement that does not include as an Indemnitee will unconditional term thereof the giving by the claimant or plaintiff to each indemnified party of a release from liability in respect of such claim. Notwithstanding the foregoing, the indemnified party shall be entitled to have sole control at its own expense over the defense or settlement of any suit or claim to the extent the suit or claim could materially adversely affect the business, operations, assets, condition or prospects of the indemnified party and the indemnifying party shall be entitled to participate at its own expense in such defense or settlement.
(b) After written notice by the indemnifying party to the indemnified party of its election to assume control of the defense of any such action, the indemnifying party shall not be liable to such indemnified party hereunder for any legal fees and expenses subsequently incurred by such indemnified party in connection with the defense thereof. If the indemnifying party does not assume control of the defense of such claims as provided in this Section 13.3(b), the indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of defend such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel claim in such proceedings. The indemnifying Party will act reasonably manner as it may deem appropriate at the cost and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent expense of the indemnifying Partyparty, and the indemnifying Party will not settle or compromise party shall promptly reimburse the indemnification claim indemnified party therefor in any manner which would have an adverse effect on accordance with this Section 13.3(b). The reimbursement of fees, costs and expenses required by this Section 13.3(b) shall be made by periodic payments during the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent course of the Indemniteeinvestigation or defense, which consentas and when bills are received or expenses incurred. The indemnified party shall provide to the indemnifying party, in each case (as promptly as practicable after any claim for indemnification hereunder, such information and documentation as may be reasonably requested by the indemnifying Party or party to support and verify the Indemniteeclaim asserted, so long as such disclosure would not violate the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control attorney-client privilege of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification)indemnified party.
Appears in 1 contract
Samples: Licensing, Contract Manufacturing & Supply Agreement (Impax Laboratories Inc)
Conditions to Indemnification. Any Person seeking indemnification (the “Indemnitee”) under this Article 15 13 (Indemnification; Limitation Of of Liability; Insurance) will give prompt written notice of the indemnity claim to the indemnifying Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 13 (Indemnification; Limitation Of of Liability; Insurance) only solely to the extent that such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the Indemnitee; provided, however, that an the Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 13.3 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS AstraZeneca by HMI Cellectis hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 13.3 (Conditions to Indemnification). The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 11 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification).
Appears in 1 contract
Samples: Joint Research and Collaboration Agreement (Cellectis S.A.)
Conditions to Indemnification. Any Person seeking indemnification The respective obligations and liabilities of the indemnifying parties to the parties to be indemnified under Sections 10.01 and 10.02 hereof with respect to claims arising from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Promptly after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or within 30 days (or such shorter period as may be necessary in order that the “Indemnitee”rights of the indemnifying party will not be prejudiced) under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will after the assertion in writing of any other claim by a third party, the party to be indemnified shall give prompt the indemnifying party written notice thereof together with a copy of the indemnity claim to such claim, process or other legal pleading, and the indemnifying Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will party shall have the right to assume and control undertake the defense thereof by representatives of the indemnification claim its own choosing and at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the Indemniteeexpense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice at its own expense.
(b) If the indemnifying party, by the 30th day after its receipt of notice of any such claim (or, if earlier, by the fifth day preceding the day on which an Indemnitee answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not notify the party to be indemnified that it has elected to defend against such claim, the party to be indemnified will have the right to retain its own counselundertake the defense, with compromise or settlement of such claim on behalf of and for the fees account and expenses risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claim at any time prior to settlement, compromise or final determination thereof. The party to be paid by indemnified will notify the indemnifying Partyparty of any proposed settlement no later than three days before such settlement is effected.
(c) Anything in this Section 10.03 to the contrary notwithstanding, if representation of such Indemnitee by the counsel retained by the indemnifying Party would party shall not settle any claim without the consent of the party to be inappropriate due indemnified unless such settlement involves only the payment of money and the claimant provides to actual or potential differing interests between the Indemnitee party to be indemnified, in form and any other party represented by such counsel substance satisfactory to that party, a release from all liability in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to of such claim. If the indemnifying Party does not assume the defense settlement of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification)involves more than the payment of money, then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will indemnifying party shall not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, party to be indemnified.
(d) The party to be indemnified and the indemnifying Party party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent each cooperate with all reasonable requests of the Indemnitee, which consent, in each case other.
(by e) The failure of a party seeking indemnification hereunder to provide any notice required hereunder shall not relieve the indemnifying Party or party from any liability it would otherwise have hereunder, except to the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with extent that the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification)party has been materially prejudiced thereby.
Appears in 1 contract
Samples: Asset Purchase Agreement (First Aviation Services Inc)
Conditions to Indemnification. Any A Person seeking indemnification under this Article XIII (the “IndemniteeIndemnified Party”) under this Article 15 in respect of a BBIL Indemnity Claim or an Ocugen Indemnity Claim, as applicable (Indemnification; Limitation Of Liability; Insuranceeach, an “Indemnity Claim”) will shall give prompt written notice of the indemnity claim such Indemnity Claim to the indemnifying Party and promptly provide a copy to from whom indemnification is sought (the indemnifying Party of any complaint“Indemnifying Party”); provided, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Indemnifying Party of liability to the Indemnitee is not contesting its obligation under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only XIII, and shall permit the Indemnifying Party to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the investigation, defense and settlement of the indemnification claim at its own expense with counsel selected by the indemnifying Party such Indemnity Claim; and reasonably acceptable to the Indemnitee; further provided, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will shall (a) act reasonably and in good faith with respect to all matters relating to the settlement or disposition of such claimIndemnity Claim as the settlement or disposition relates to such Indemnified Party and (b) not settle or otherwise resolve such Indemnity Claim without the prior written consent of such Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed). Each Indemnified Party shall cooperate with the Indemnifying Party in its investigation, defense and settlement of any such Indemnity Claim in all reasonable respects and shall have the right to be present in person or through counsel at all legal proceedings with respect to such Indemnity Claim. If the indemnifying Indemnifying Party does not assume and conduct the defense of the indemnification claim Indemnity Claim as described provided above, (i) the Indemnified Party may defend against, consent to the entry of any judgment, or enter into any settlement with respect to such Indemnity Claim in any manner the Indemnified Party may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, the Indemnifying Party in connection therewith), and (ii) the Indemnifying Party shall remain responsible to indemnify the Indemnified Party as provided in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will Article XIII. The Indemnifying Party shall have no obligation to do so. The Indemnitee will not settle or compromise liability for any settlement of Indemnity Claims entered into by the indemnification claim Indemnified Party without the prior written consent of the indemnifying Indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification).
Appears in 1 contract
Samples: Co Development, Supply and Commercialization Agreement (Ocugen, Inc.)
Conditions to Indemnification. Any Person seeking indemnification The Party claiming indemnity under this ARTICLE 12 (the “IndemniteeIndemnified Party”) under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give prompt written notice of the indemnity claim to the indemnifying Party and from whom indemnity is being sought (the “Indemnifying Party”) promptly after learning of any claim, demand, suit, action or other proceeding by any Third Party in relation to which it wishes to claim indemnification hereunder (a “Claim”), provided that the failure to promptly provide a copy to such notice will not relieve the indemnifying Indemnifying Party of any complaintof its indemnification obligations hereunder, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only except to the extent such delay is prejudicial to that the indemnifying Indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the Indemnitee; provided, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented relevant Claim is prejudiced by such counsel in such proceedingsfailure. The indemnifying Indemnifying Party will act reasonably and in good faith with respect to all matters relating to may upon such claim. If the indemnifying Party does not notice assume the defense of the indemnification claim as described Claim, and the Indemnified Party will provide the Indemnifying Party, upon the Indemnifying Party’s request, with reasonable assistance, at the Indemnifying Party’s expense, in this Section 15.4 (Conditions to Indemnification), then connection with the Indemnitee may defend defense of the indemnification claim but will have no obligation to do soClaim for which indemnity is being sought. The Indemnitee Indemnified Party may participate in and monitor such defense with counsel of its own choosing at its sole expense. The Indemnifying Party may settle any Claim without the prior consent of the Indemnified Party unless such settlement would impose any monetary obligation on the Indemnified Party or require the Indemnified Party to submit to an injunction or otherwise materially limit the other Party’s rights to conduct its business as then conducted or limit the Indemnified Party’s rights under this Agreement, in which case the Indemnified Party must give its prior written consent, not to be unreasonably withheld. So long as the Indemnifying Party is actively defending the Claim in good faith, the Indemnified Party will not settle or compromise the indemnification claim any such Claim without the prior written consent of the indemnifying Indemnifying Party. If the Indemnifying Party does not assume and conduct the defense of the Claim as provided above, and (i) the indemnifying Indemnified Party will not settle may defend against, consent to the entry of any judgment, or compromise the indemnification claim enter into any settlement with respect to such Claim in any manner which would have an adverse effect on the Indemnitee’s interests Indemnified Party may deem reasonably appropriate (including any rights under this Agreement or and the scope, validityIndemnified Party need not consult with, or enforceability of obtain any Patent Rightsconsent from, Confidential Information, or other rights licensed to NVS by HMI hereunderthe Indemnifying Party in connection therewith), without and (ii) the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Indemnifying Party will not be liable for any settlement or other disposition of remain responsible to indemnify the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Indemnified Party pursuant to as provided in this Section 15.4 (Conditions to Indemnification)ARTICLE 12.
Appears in 1 contract
Samples: Exclusive License Agreement (Aileron Therapeutics Inc)
Conditions to Indemnification. Any Person seeking indemnification (a) In the event that any Third Party asserts a claim with respect to any matter for which a party (the “IndemniteeIndemnified party”) under this Article 15 is entitled to indemnification hereunder (Indemnification; Limitation Of Liability; Insurancea “Third-Party Indemnity Claim”), then the Indemnified party shall promptly notify the party obligated to indemnify the Indemnified party (the “Indemnifying party”) will give prompt written notice of the indemnity claim to the indemnifying Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the Indemniteethereof; provided, however, that an Indemnitee no delay on the part of the Indemnified party in notifying the Indemnifying party shall relieve the Indemnifying party from any obligation hereunder unless (and then only to the extent that) the Indemnifying party is prejudiced thereby.
(b) The Indemnifying party shall have the right, exercisable by notice to the Indemnified party within ten days of receipt of notice from the Indemnified party of the commencement of or assertion of any Third-Party Indemnity Claim, to control the defense, settlement, appeal or other disposition of the Third-Party Indemnity Claim with counsel reasonably acceptable to the Indemnified party; provided that, the Indemnified party will have the right to retain its participate jointly therein and provided, further, that if the Indemnifying party fails to take reasonable steps necessary to defend such Third-Party Indemnity Claim, the Indemnified party may assume it own counsel, defense and the Indemnifying party will be liable for the reasonable costs and expenses in connection therewith. The Indemnifying party will not settle any Third-Party Indemnity Claim except: (i) with the fees approval of the Indemnified party, which approval shall not be unreasonably withheld or delayed and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith (ii) with respect to all matters any Third-Party Indemnity Claim relating solely to such claim. If the indemnifying Party does payment of money damages and which could not assume result in the defense Indemnified party’s becoming subject to injunctive or other equitable relief or otherwise adversely affect the business of the indemnification claim Indemnified party in any manner, and as described to which the Indemnifying party shall have acknowledged in this Section 15.4 (Conditions to Indemnification), then writing the Indemnitee may defend the indemnification claim but will have no obligation to do soindemnify the Indemnified party hereunder; provided, that the Indemnifying party shall provide reasonable evidence of its ability to pay any damages claimed and with respect to any such settlement shall obtain the written release of the Indemnified party from the Third-Party Indemnity Claim. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without Indemnifying party shall obtain the written consent of the indemnifying Indemnified party prior to ceasing to defend, settling or otherwise disposing of any Third-Party pursuant Indemnity Claim if as a result thereof the Indemnified party would become subject to this Section 15.4 (Conditions to Indemnification)injunctive or other equitable relief or the business of the Indemnified party would be adversely affected in any manner.
Appears in 1 contract
Samples: License Agreement (Predictive Technology Group, Inc.)
Conditions to Indemnification. Any Person seeking indemnification (the “Indemnitee”) CELGENE's obligations under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give prompt written notice Section 9 shall apply only if the Indemnified Parties promptly notify CELGENE of any loss, claim, damage, liability or action in respect of which the indemnity Indemnified Parties intend to claim such indemnification. CELGENE shall assume the defense thereof with counsel mutually satisfactory to the indemnifying Indemnified Parties whether or not such claim is rightfully brought. Each Indemnified Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the Indemnitee; provided, however, that an Indemnitee will shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Partyat its own expense, provided that CELGENE shall reimburse such Indemnified Party for such expense if representation of such Indemnitee Indemnified Party by the counsel retained by the indemnifying Party CELGENE would be inappropriate due to actual or potential differing interests between the Indemnitee such Indemnified Party and any other party person represented by such counsel in such proceedings. The indemnifying failure to deliver notice to CELGENE within a reasonable time after the commencement of any such action, only if prejudicial to its ability to defend such action, shall relieve CELGENE of any liability to any Indemnified Party under this Section 9, but the -55- <PAGE> omission so to deliver notice to CELGENE will act reasonably not relieve it of any liability that it may have to any Indemnified Party otherwise than under this Section 9. Each Indemnified Party under this Section 9 shall cooperate fully with CELGENE and its legal representatives in good faith the investigations of any action, claim or liability covered by this indemnification. SECTION 10 - EXPORT CONTROLS 10.1 It is understood that CMCC is subject to United States laws and regulations controlling the export of technical data, computer software, laboratory prototypes and other commodities (including the Arms Export Control Act, as amended and the Export Administration Act of 1979) and that its obligations hereunder are contingent on compliance with respect to all matters relating to such claimapplicable United States export laws and regulations. If The transfer of certain technical data and commodities may require a license from the indemnifying Party does not assume the defense cognizant agency of the indemnification claim as described in this Section 15.4 (Conditions United States Government and/or written assurances by CELGENE that CELGENE shall not export data or commodities to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim certain foreign countries without the prior written consent approval of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will such agency. CMCC neither represents that a license shall not be unreasonably withheldrequired nor that, conditionedif required, or delayedit shall be issued. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification).SECTION 11 -
Appears in 1 contract
Samples: Collaboration Agreement
Conditions to Indemnification. Any A Person seeking indemnification Recovery under this Article 14 (the “IndemniteeIndemnified Party”) in respect of a Claim shall give prompt notice of such Claim to the Party from whom indemnification is sought (the “Indemnifying Party”). Provided that the Indemnifying Party is not contesting its obligation under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give prompt written notice 14, the Indemnified Party shall permit the Indemnifying Party to control any litigation relating to such Claim and the disposition of the indemnity claim to the indemnifying Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claimClaim. The indemnifying Indemnifying Party will have the right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the Indemnitee; provided, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will shall (a) act reasonably and in good faith with respect to all matters relating to the settlement or disposition of such claim. If Claim as the indemnifying settlement or disposition relates to such Indemnified Party does not assume the defense of the indemnification claim as described in this Section 15.4 and (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will b) not settle or compromise the indemnification otherwise resolve such claim without the prior written consent of the indemnifying Party, and the indemnifying such Indemnified Party will not settle or compromise the indemnification claim in any manner (which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will shall not be unreasonably withheld, conditioned, conditioned or delayed) unless such settlement fully releases the Indemnified Party without any liability, loss, cost or obligation incurred by the Indemnified Party (in which case prior consent shall not be required). The Indemnitee will reasonably Each Indemnified Party shall cooperate with the indemnifying Indemnifying Party in its defense of any such Claim in all reasonable respects and shall have the right to be present in person or through counsel at all legal proceedings with respect to such Claim (with any such counsel being at its own sole cost and expense). If the indemnifying Party’s expense Indemnifying Party does not assume and will make available conduct the defense of the Claim as provided above, (i) the Indemnified Party may defend against, consent to the indemnifying Party all pertinent information under the control entry of the Indemniteeany judgment, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for or enter into any settlement with respect [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. to such Claim in any manner the Indemnified Party may deem reasonably appropriate (and the Indemnified Party need not consult with, or other disposition of obtain any consent from, the claims by Indemnifying Party in connection therewith) and (ii) the Indemnitee if such settlement is reached without Indemnifying Party shall remain responsible to indemnify the written consent of the indemnifying Indemnified Party pursuant to as provided in this Section 15.4 (Conditions to Indemnification)Article 14.
Appears in 1 contract
Samples: Research Collaboration and Exclusive License Agreement (Aduro Biotech, Inc.)
Conditions to Indemnification. Any Person seeking A person or entity that intends to claim indemnification under this Article XII (the “Indemnitee”) under this Article 15 shall promptly notify the other Party (Indemnification; Limitation Of Liability; Insurancethe “Indemnitor”) will give prompt written notice of the indemnity claim to the indemnifying Party and promptly provide a copy to the indemnifying Party of any complaintloss, summonsclaim, damage, liability or other written or verbal notice that action in respect of which the Indemnitee receives in connection with any intends to claim such claim. An Indemnitee’s failure to deliver written notice will relieve indemnification, and the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to Indemnitor shall assume and control the defense of the indemnification claim at its own expense thereof, with counsel selected by the indemnifying Party and reasonably acceptable satisfactory to the Indemnitee, whether or not such claim is rightfully brought; provided, however, that an Indemnitee will shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying PartyIndemnitor if Indemnitor does not assume the defense, or if representation of such Indemnitee by the counsel retained by the indemnifying Party Indemnitor would be inappropriate due to actual or potential differing interests between the such Indemnitee and any other party person represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described indemnity agreement in this Section 15.4 (Conditions Article XII shall not apply to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim amounts paid in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability settlement of any Patent Rightsloss, Confidential Informationclaim, damage, liability or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee action if such settlement is reached effected without the written consent of the indemnifying Party pursuant Indemnitor, which consent shall not be withheld or delayed unreasonably. The failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, only to the extent prejudicial to its ability to defend such action, shall relieve such Indemnitor of liability to the Indemnitee under this Section 15.4 (Conditions Article XII, but the omission so to Indemnification)deliver notice to the Indemnitor will not relieve it of any liability that it may have to any Indemnitee otherwise than under this Article XII. The Indemnitee under this Article XII, its employees and agents, shall cooperate fully with the Indemnitor and its legal representatives in the investigations of any action, claim or liability covered by this indemnification. Any actions taken or payments made by an Indemnitor hereunder shall be without prejudice to the Indemnitor’s right to contest the Indemnitee’s right to indemnification and subject to refund if the Indemnitor is ultimately held not to be obligated to indemnify the Indemnitee.
Appears in 1 contract
Samples: Collaboration and License Agreement (Sonus Pharmaceuticals Inc)
Conditions to Indemnification. Any Person seeking indemnification The Party claiming indemnity under this Article 13 (the “IndemniteeIndemnified Party”) under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will shall give prompt written notice of the indemnity claim to the indemnifying Party and from whom indemnity is being sought (the “Indemnifying Party”) promptly after learning of such Claim, provided that the failure to promptly provide a copy to such notice shall not relieve the indemnifying Indemnifying Party of any complaint, summons, or other written or verbal notice of its indemnification obligations hereunder except to the extent that the Indemnitee receives Indemnifying Party’s defense of the relevant Claim is prejudiced by such failure. The Indemnified Party shall provide the Indemnifying Party with reasonable assistance, at the Indemnifying Party’s expense, in connection with any the defense of the Claim for which indemnity is being sought. The Indemnified Party may participate in and monitor such claim. An Indemnitee’s failure defense with counsel of its own choosing at its sole expense; provided, however, that, as long as however that (a) the claim solely seeks monetary damages, (b) the Indemnifying Party expressly agrees in writing that as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to deliver written notice will relieve satisfy and discharge the indemnifying claim in full and (c) the Indemnifying Party of liability provides evidence to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Indemnified Party’s ability satisfaction that it has the financial capacity to defend or settle such claim. The indemnifying and indemnify the Indemnified Party will against the Claim (the matters described in (a), (b) and (c), the “Litigation Conditions”), the Indemnifying Party shall have the right to assume and control conduct the defense of the indemnification claim at its own expense Claim with counsel selected by the indemnifying Party and reasonably acceptable to the Indemnitee; provided, however, that an Indemnitee will have the right to retain of its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedingschoice. The indemnifying Indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will shall not settle or compromise the indemnification claim any Claim without the prior written consent of the indemnifying Indemnified Party, not to be unreasonably withheld. So long as the Litigation Conditions are satisfied and the indemnifying Indemnifying Party will is actively defending the Claim in good faith, the Indemnified Party shall not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), such Claim without the prior written consent of the IndemniteeIndemnifying Party. If the Indemnifying Party does not assume and conduct the defense of the Claim as provided above, which consent(a) the Indemnified Party may defend against, consent to the entry of any judgment, or enter into any settlement with respect to such Claim in each case any manner the Indemnified Party may deem reasonably appropriate (by and the indemnifying Indemnified Party need not consult with, or obtain any consent from, the Indemnitee, as the case may beIndemnifying Party in connection therewith), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with and (b) the indemnifying Indemnifying Party at shall remain responsible to indemnify the indemnifying Party’s expense and will make available to the indemnifying Indemnified Party all pertinent information under the control of the Indemnitee, which information will be subject to as provided in this Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification)13.
Appears in 1 contract
Samples: Collaboration and License Agreement (Clovis Oncology, Inc.)
Conditions to Indemnification. Any Person seeking indemnification (the a) With respect to each separate matter brought by any third party against which a party hereto (“Indemnitee”) is indemnified by the other party (“Indemnitor”) under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give prompt written notice of XIV, the indemnity claim Indemnitor shall be responsible, at its sole cost and expense, for controlling, litigating, defending and/or otherwise attempting to the indemnifying Party and promptly provide a copy to the indemnifying Party of resolve any complaintproceeding, summonsclaim, or other written cause of action underlying such matter, except that (a) the Indemnitee may, at its option, participate in such defense or verbal notice resolution at its expense and through counsel of its choice; (b) the Indemnitee may, at its option, assume control of such defense or resolution if the Indemnitor does not promptly and diligently pursue such defense or resolution, provided that the Indemnitor shall continue to be obligated to indemnify the Indemnitee receives hereunder in connection with therewith; and (c) neither Indemnitor nor Indemnitee shall agree to any such claimsettlement without the other’s prior written consent (which shall not be unreasonably withheld or delayed). An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the In any event, Indemnitor and Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the Indemnitee; provided, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and shall in good faith cooperate with each other and their respective counsel with respect to all matters relating such actions or proceedings, at the Indemnitor’ s expense. With respect to each and every matter with respect to which any indemnification may be sought hereunder, upon receiving notice pertaining to such matter, Indemnitee shall promptly (and in no event more than twenty (20) days after any third party litigation is commenced asserting such claim) give reasonably detailed written notice to the Indemnitor of the nature of such matter and the amount demanded or claimed in connection therewith.
(b) The terms of the General Liability, Automobile Liability and Workers’ Compensation insurance policies required hereunder shall preclude subrogation claims against Manager and CRDA and their respective officers, employees and agents. If With respect to the indemnifying Party does not assume selection of counsel to provide the defense obligations of the indemnification claim as described in Manager under subsection (a) of this Section 15.4 (Conditions to Indemnification)14.03, then if such defense obligations involve a Loss which is or may be covered by any insurance maintained by Manager under Section 14.05 hereof, the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent selection of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (such counsel shall be made as required by the indemnifying Party applicable insurance policy.
(c) For purposes of Sections 14.01 and 14.02, “Losses” shall mean any and all liability, loss, damage, claim, expense, cost, obligation or injury resulting from any and all third party claims, actions, suits, proceedings, demands, assessments and judgments, together with reasonable costs and expenses including the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification)reasonable legal expenses relating thereto.
Appears in 1 contract
Samples: Facility Management Agreement
Conditions to Indemnification. (a) Any Person party seeking indemnification hereunder (the “Indemnitee”"Indemnified Party") shall promptly notify the other party obligated to provide indemnification hereunder (" the Indemnifying Party") of any action, suit, proceeding, demand or breach (a "Claim") with respect to which the Indemnified Party claims indemnification hereunder, provided the failure of the Indemnified Party to give such notice shall not relieve any Indemnifying Party of its obligations under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give prompt written notice of the indemnity claim Section 12 except to the indemnifying extent, if at all, that such Indemnifying Party and promptly provide shall have been prejudiced thereby. If such Claim relates to any action, suit, proceeding or demand instituted against the Indemnified Party by a copy third party (a "Third Party Claim"), upon receipt of such notice from the Indemnifying Party, the Indemnifying Party shall be entitled to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives participate in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the indemnifying such Third Party and reasonably acceptable to the Indemnitee; provided, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying PartyClaim, if representation and only if each of such Indemnitee by the counsel retained by following conditions is satisfied, and the indemnifying Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not may assume the defense of such Third Party Claim and, in the indemnification claim as described case of such an assumption, the Indemnifying Party shall have the authority to negotiate, compromise and settle such Third Party Claim: (i) the Indemnifying Party confirms in this Section 15.4 writing that it is obligated hereunder to indemnify the Indemnified Party with respect to such Third Party Claims; and (Conditions to Indemnification)ii) the Indemnified Party does not give the Indemnifying Party written notice that it has determined, then in the Indemnitee may defend exercise of its reasonable discretion, that a conflict of interest makes separate representation by the indemnification claim but will have no obligation to do soIndemnified Party's own counsel advisable. The Indemnitee will not settle or compromise Indemnified Party shall cooperate fully in the indemnification claim without defense of any Third Party Claim as and to the prior written consent extent reasonably requested by the Indemnifying Party.
(b) In the event of any claims under Section 12.1 hereof, the Indemnified Party shall advise the Indemnifying Party in writing of the indemnifying Partyamount and circumstances surrounding such claim. With respect to liquidated Claims, and if within 30 days the indemnifying Indemnifying Party has not contested such claim in writing, the Indemnifying Party will not settle or compromise pay the indemnification claim in any manner which would have an adverse effect on full amount thereof within 10 days after the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability expiration of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification)a period.
Appears in 1 contract
Conditions to Indemnification. Any Person seeking indemnification (The obligations of the “Indemnitee”) indemnifying party under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give prompt Sections 9.1 and 9.2 are conditioned upon the delivery of written notice of the indemnity claim to the indemnifying party of any potential Losses promptly after the indemnified party becomes aware of such potential Losses. In the event of the assertion or commencement by any Third Party and promptly provide of any suit or claim with respect to which the indemnifying party may become obligated to indemnify, hold harmless, compensate or reimburse any indemnitee pursuant to Section 9.1 or 9.2, the indemnifying party shall assume the defense of such suit or claim, at the sole expense of the indemnifying party, within the time allowed for responding to such suit or claim. In that event:
(a) the indemnifying party shall proceed to defend such suit or claim in a copy diligent manner with counsel reasonably satisfactory to the indemnified party;
(b) the indemnified party shall make available to the indemnifying Party party any non-privileged documents and materials in the possession of any complaint, summons, the indemnified party that may be necessary to the defense of such suit or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve ;
(c) the indemnifying Party party shall keep the indemnified party informed of liability all material developments and events relating to such suit or claim; and
(d) the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will indemnified party shall have the right to assume and control participate in the defense of the indemnification such suit or claim at its own expense sole expense. If the indemnifying party does not assume the defense of any such suit or claim within the time allowed (a "Failure to Defend"), the indemnified party may proceed with counsel selected the defense of such suit or claim on its own. If the indemnified party so proceeds with the defense of any such suit or claim on its own:
(i) all expenses relating to the defense of such suit or claim shall be borne and paid exclusively by the indemnifying Party and reasonably acceptable to the Indemniteeindemnified party; provided, however, that an Indemnitee will the indemnified party shall have the right to retain its own counsel, with withhold and deduct any sum that may be owed to the fees and expenses to be paid indemnifying party under Section 9.1 or 9.2 from any amount otherwise payable by the indemnified party to the indemnifying Party, if representation party. The withholding and deduction of any such sum shall operate for all purposes as a complete discharge (to the extent of such Indemnitee by sum) of the counsel retained by obligation to pay the amount from which such sum was withheld and deducted;
(ii) the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will shall make available to the indemnifying Party all pertinent information under indemnified party any documents and materials in the possession or control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent either of the indemnifying Party pursuant party that may be necessary to this Section 15.4 the defense of such suit or claim; and
(Conditions iii) the indemnified party shall keep the indemnifying party informed of all material developments and events relating to Indemnification)such suit or claim.
Appears in 1 contract
Conditions to Indemnification. Any Person seeking indemnification The obligations of the Seller and Buyer to indemnify the other shall be subject to the following conditions:
(the “Indemnitee”a) If an Indemnified Party intends to seek indemnity under this Article 15 VIII, such Indemnified Party shall promptly notify Seller or Buyer, as the case may be (Indemnification; Limitation Of Liability; Insurancethe "Indemnifying Party"), in writing of such claims setting forth the basis for and the amount of such claims in reasonable detail. In the event such claim involves a claim by a third party against the Indemnified Party, the Indemnifying Party shall have thirty (30) days after receipt of such notice to decide whether it will give prompt written notice undertake, conduct and control, through counsel of the indemnity claim to the indemnifying Party its own choosing and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the defense of the indemnification claim at its own expense expense, the settlement or defense thereof, and if it so decides, the Indemnified Party shall cooperate with it in connection therewith, provided that the Indemnified Party may participate (subject to the Indemnifying Party's control) in such settlement or defense through counsel selected chosen by it, and provided further that the fees and expenses of such Indemnified Party's counsel shall be borne by the indemnifying Indemnified Party.
(b) The Indemnifying Party and reasonably acceptable may, without the consent of the Indemnified Party, settle or compromise or consent to the Indemniteeentry of any judgment in any action involving only the payment of money which includes as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a duly executed written release of the Indemnified Party from all liability in respect of such action which written release shall be reasonably satisfactory in form and substance to counsel for the Indemnified Party. The Indemnifying Party shall not, without the written consent of the Indemnified Party settle or compromise any action involving relief other than the payment of money in any manner that, in the reasonable judgment of the Indemnified Party, would materially and adversely affect the Indemnified Party; provided, however, that an Indemnitee will if the Indemnified Party shall fail or refuse to consent to a settlement, compromise or judgment proposed by the Indemnifying Party and approved by the third Person in any such action and a judgment thereafter shall be entered or a settlement or compromise thereafter shall be effected on terms less favorable in the aggregate to the Indemnified Party than the settlement, compromise or judgment proposed by the Indemnifying Party, the Indemnifying Party shall have no liability hereunder with respect to any Losses and Damages in excess of those that were provided for in the settlement, compromise or judgment proposed by the Indemnifying Party or any costs or expenses related to such claim arising after the date such settlement, compromise or judgment was so proposed.
(c) If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to retain its own counselcontest, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying Party will but shall not settle or compromise the indemnification claim in thereby waive any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed right to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party indemnity therefor pursuant to this Section 15.4 Agreement. So long as the Indemnifying Party is contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim, unless such settlement includes as an unconditional term thereof the delivery by the claimant or plaintiff and by the Indemnified Party to the Indemnifying Party of duly executed written releases of the Indemnifying Party from all liability in respect of such claim which written releases shall be reasonably satisfactory in form and substance to counsel for the Indemnifying Party.
(Conditions d) The Indemnified Party shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to Indemnification)this Article VIII, including, without limitation, by providing the Indemnifying Party with reasonable access to employees and officers (including as witnesses) and other information.
(e) To the extent that an Indemnifying Party's undertakings set forth in this Article VIII may be unenforceable, the Indemnifying Party shall contribute the maximum amount that it is permitted to contribute under applicable law to the payment and satisfaction of all Losses and Damages incurred by the Indemnified Party.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Revlon Consumer Products Corp)
Conditions to Indemnification. Any A Person seeking indemnification under this Section 11 (the “IndemniteeIndemnified Party”) under this Article 15 in respect of a BBIL Indemnity Claim or an Ocugen Indemnity Claim, as applicable (Indemnification; Limitation Of Liability; Insuranceeach, an “Indemnity Claim”) will shall give prompt written notice of the indemnity claim such Indemnity Claim to the indemnifying Party and promptly provide a copy to from whom indemnification is sought (the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying “Indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the Indemnitee”); provided, howeverthat the Indemnifying Party is not contesting its obligation under this Section 11, and shall permit the Indemnifying Party to control the investigation, defense and settlement of such Indemnity Claim; and further provided, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will shall (a) act reasonably and in good faith with respect to all matters relating to the settlement or disposition of such claimIndemnity Claim as the settlement or disposition relates to such Indemnified Party and (b) not settle or otherwise resolve such Indemnity Claim without the prior written consent of such Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed). Each Indemnified Party shall cooperate with the Indemnifying Party in its investigation, defense and settlement of any such Indemnity Claim in all reasonable respects and shall have the right to be present in person or through counsel at all legal proceedings with respect to such Indemnity Claim. If the indemnifying Indemnifying Party does not assume and conduct the defense of the indemnification claim Indemnity Claim as described provided above, (i) the Indemnified Party may defend against, consent to the entry of any judgment, or enter into any settlement with respect to such Indemnity Claim in any manner the Indemnified Party may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, the Indemnifying Party in connection therewith), and (ii) the Indemnifying Party shall remain responsible to indemnify the Indemnified Party as provided in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will 11. The Indemnifying Party shall have no obligation to do so. The Indemnitee will not settle or compromise liability for any settlement of Indemnity Claims entered into by the indemnification claim Indemnified Party without the prior written consent of the indemnifying Indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification).
Appears in 1 contract
Samples: Development and Commercial Supply Agreement (Ocugen, Inc.)
Conditions to Indemnification. Any Person seeking If any action, suit, proceeding, claim, liability, demand or assessment shall be asserted against any Indemnified Party in respect of which it proposes to demand indemnification (the “Indemnitee”) under pursuant to this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give prompt written notice IV, such Indemnified Party shall promptly notify the Company and furnish copies of the indemnity claim all pleadings and related correspondence, if any. Subject to the indemnifying Party and promptly provide a copy rights of or duties to the indemnifying Party of any complaint, summons, insurer or other written or verbal notice that third person having liability therefor, the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will Company shall have the right promptly after receipt of such notice to assume and the control the defense of the indemnification claim defense, compromise or settlement of any such action, suit, proceeding, claim, liability, demand or assessment, including, at its the Company's own expense with expense, employment of counsel selected by satisfactory to such Indemnified Party. Notwithstanding the indemnifying preceding sentence, in any such matter described in the preceding sentence, the Indemnified Party and reasonably acceptable to the Indemnitee; provided, however, that an Indemnitee will shall have the right to retain its own separate counsel, with but the fees and expenses of such counsel shall be at the Indemnified Party's expense unless (a) the Company and the Indemnified Party shall have agreed to be paid the contrary, (b) the Company have failed within a reasonable time to retain counsel satisfactory to the Indemnified Party or (c) the named parties in any such proceeding (including any impleaded parties) include the Company and the Indemnified Party and representation of all such parties by the indemnifying Party, if representation of such Indemnitee by the same counsel retained by the indemnifying Party would could be inappropriate due to actual or potential differing interests between them. In any matter described above where the Indemnitee Indemnified Party has obtained counsel to represent it in addition to counsel obtained by the Company, counsel selected by the Company and any counsel selected by the Indemnified Party shall cooperate fully with each other party represented by such counsel in such proceedingsmatter. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If Neither the indemnifying Party does not assume Manager nor the defense of the indemnification Company shall be liable for any claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim settled without the prior written consent of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemniteeits consent, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case consent may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification).
Appears in 1 contract
Samples: Management Agreement (Orlando Predators Entertainment Inc)
Conditions to Indemnification. Any Person seeking If either a Xxxxxxx Indemnified Party or a Protagonist Indemnified Party (each, an “Indemnified Party”) intends to seek indemnification under Section 11.1, the Indemnified Party must: (a) give the other Party (the “IndemniteeIndemnifying Party”) under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give reasonably prompt written notice upon becoming aware of any Third Party Claim with respect to which such Indemnified Party intends to seek indemnification; (b) reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s request and expense, in the defense or settlement of the indemnity claim to claim; and (c) give the indemnifying Indemnifying Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right to assume and control the defense or settlement of the indemnification claim, provided that the Indemnifying Party will not enter into any settlement that adversely affects the Indemnified Party’s rights or obligations without the Indemnified Party’s prior express written consent, which will not be unreasonably withheld, conditioned or delayed. The Indemnified Party may participate in the defense or settlement of any such claim at its own expense with counsel selected by of its choosing. Notwithstanding the indemnifying foregoing, any failure of the Indemnified Party and reasonably acceptable to comply with the provisions of clause (a) of this Section 11.2 will not relieve the Indemnifying Party of any defense or indemnity obligations under this Agreement except to the Indemnitee; provided, however, extent that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented is prejudiced by such counsel in failure. So long as the Indemnifying Party is actively defending such proceedings. The indemnifying Third Party will act reasonably and Claim in good faith with respect to all matters relating to such claim. If faith, the indemnifying Indemnified Party does not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will shall not settle or compromise the indemnification any such claim without the prior written consent of the indemnifying Indemnifying Party. If the Indemnifying Party does not assume and conduct the defense of the claim as provided above, (i) the Indemnified Party may defend against, and consent to the indemnifying Party will not settle entry of any judgment or compromise enter into any settlement with respect to the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests Indemnified Party may deem reasonably appropriate (including any rights under this Agreement or and the scope, validityIndemnified Party need not consult with, or enforceability of obtain any Patent Rightsconsent from, Confidential Information, or other rights licensed to NVS by HMI hereunderthe Indemnifying Party in connection therewith), without and (ii) the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Party or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Indemnifying Party will not be liable for any settlement or other disposition of remain responsible to indemnify the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Indemnified Party pursuant to as provided in this Section 15.4 (Conditions to Indemnification)Article 11.
Appears in 1 contract
Samples: License and Collaboration Agreement (Protagonist Therapeutics, Inc)
Conditions to Indemnification. Any Person seeking indemnification (For purposes of this Section 8, the “Indemnitee”) under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give prompt written notice of Party obligated to provide the indemnity claim will be referred to as the indemnifying "Indemnitor" and the Party and promptly provide a copy receiving the benefit of such indemnity will be referred to as the indemnifying Party "Indemnitee." The Indemnitor's obligations of indemnification are conditioned on (i) the Indemnitee's reasonably prompt notice to Indemnitor of any complaintclaim, summons, or other written or verbal notice that (ii) the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will relieve permitting the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claim. The indemnifying Party will have the right Indemnitor to assume and control the defense of the indemnification claim at its own expense action, with counsel selected chosen by the indemnifying Party and Indemnitor (who must be reasonably acceptable to the Indemnitee; provided), however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between (iii) the Indemnitee providing all reasonably requested information, assistance and any other party represented by such counsel authority to Indemnitor in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 claim, at Indemnitor's expense; and (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will iv) Indemnitor not settle entering into any settlement or compromise the indemnification of any claim without the Indemnitee's prior written consent of the indemnifying Partyapproval, not to be unreasonably withheld, conditioned or delayed. The Indemnitor will pay any and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scopeall costs, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of damages and attorneys' fees awarded against the Indemnitee, which consent, in each case (and all reasonable expenses incurred by the indemnifying Party or the Indemnitee, as in connection with or arising from any such claim, suit or proceeding. If the case may be)Parties agree to settle a third party claim, neither Party will publicize the settlement without first obtaining the other Party's written permission, which permission will not be unreasonably withheld, conditioned, conditioned or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification).
Appears in 1 contract
Samples: Strategic Marketing and Content Agreement (Omnisky Corp)
Conditions to Indemnification. Any Person The obligations and liabilities of Manager under Section 14.1, and of the City under Section 14.2, will be subject to the following terms and conditions:
(a) Each party seeking indemnification (the “IndemniteeIndemnified Party”) under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will shall give prompt written notice of the indemnity claim (“Indemnification Claim Notice”) to the indemnifying Party other party (the “Indemnifying Party”) of each claim for indemnification under this Agreement, specifying the amount and promptly provide a copy to the indemnifying Party nature of any complaint, summons, such claim. In the event of any claim for indemnification hereunder resulting from or other written or verbal notice that the Indemnitee receives in connection with any claim or legal proceedings by a third party, such claim. An Indemnitee’s failure to deliver written notice will relieve shall specify, if known, the indemnifying Party amount or an estimate of the amount of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only to the extent such delay is prejudicial to the indemnifying Party’s ability to defend or settle such claimarising there from. The indemnifying Indemnified Party will have the right to assume and control the defense of the indemnification claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable to the Indemnitee; provided, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Party does not assume the defense of the indemnification claim as described in this Section 15.4 (Conditions to Indemnification), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will shall not settle or compromise the indemnification any claim by a third party for which it is entitled to indemni fication hereunder without the prior written consent of the indemnifying Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that if suit shall have been instituted against the Indemnified Party and the indemnifying Indemnifying Party will shall not have taken control of such suit after notification thereof as provided in Section 14.3(b) hereof, the Indemnified Party shall have the right to settle or compromise such claim upon giving notice to the indemnification Indemnifying Party, as provided in Section 14.3(b) hereof.
(b) In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any third party claim or legal proceeding, the Indemnifying Party, at its sole cost and expense may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect t o all elements of such claim. If the Indemnifying Party assumes the defense of any manner which would have an adverse effect on such claim or legal proceeding, the Indemnitee’s interests (including any rights under this Agreement Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim or legal proceeding and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the scope, validity, or enforceability entry of any Patent Rightsjudgment arising from, Confidential Information, any such claim or other rights licensed to NVS by HMI hereunder)legal proceeding, without the prior written consent of the IndemniteeIndemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, which consentwith its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting there from within fifteen (15) days after the date of the Indemnification Claim Notice:
(i) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, in each case (including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate, and all costs of litigation incu rred by the indemnifying Indemnified Party shall be included in the calculation of the Losses of the Indemnified Party which are the subject of such claim or litigation; and
(ii) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. The Indemnifying Party thereafter shall have no right to question the manner in which the Indemnified Party defended such third party claim or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, amount or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control nature of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification)settlement.
Appears in 1 contract
Samples: Management Agreement
Conditions to Indemnification. Any Person seeking indemnification In the event that any Third Party asserts a claim with respect to any matter for which a Party (the “IndemniteeIndemnified Party”) under this Article 15 is entitled to indemnification hereunder (Indemnificationa “Third Party Claim”), then the Indemnified Party shall promptly notify the Party obligated to indemnify the Indemnified Party (the “Indemnifying Party”) thereof; Limitation Of Liability; Insurance) will give prompt written notice provided, however, that no delay on the part of the indemnity claim to Indemnified Party in notifying the indemnifying Indemnifying Party and promptly provide a copy to the indemnifying Party of any complaint, summons, or other written or verbal notice that the Indemnitee receives in connection with any such claim. An Indemnitee’s failure to deliver written notice will shall relieve the indemnifying Indemnifying Party of liability to the Indemnitee under this Article 15 from any obligation hereunder unless (Indemnification; Limitation Of Liability; Insurance) and then only to the extent such delay that) the Indemnifying Party is prejudicial prejudiced thereby.
(a) The Indemnifying Party shall have the right, exercisable by notice to the indemnifying Party’s ability Indemnified Party within ten (10) Business Days of receipt of notice from the Indemnified Party of the commencement of or assertion of any Third Party Claim, to defend assume direction and control of the defense, litigation, settlement, appeal or settle such claim. The indemnifying other disposition of the Third Party will have Claim (including the right to assume and control settle the defense of the indemnification claim at its own expense solely for monetary consideration) with counsel selected by the indemnifying Indemnifying Party and reasonably acceptable to the IndemniteeIndemnified Party; provided, howeverthat the Indemnifying Party shall seek the prior consent of any such Indemnified Party as to any settlement that would materially diminish or materially adversely affect the scope, exclusivity or duration of any Patents licensed under this Agreement, would require any payment by such Indemnified Party, would require an admission of legal wrongdoing in any way on the part of an Indemnified Party or would effect an amendment of this Agreement. In the case of any Third Party Claim that an Indemnitee will have is the subject of Section 11.3, Pfizer shall be entitled to control the defense of such Third Party Claim subject to the remaining provisions of this Section 11.
(b) Within ten (10) days after the Indemnifying Party has given notice to the Indemnified Party of its intended exercise of its right to retain defend a Third Party Claim, the Indemnifying Party shall be entitled, at its own counselsole cost and expense, to assume and conduct such defense, with the fees and expenses to be paid counsel selected by the indemnifying Indemnifying Party, if representation . During such time as the Indemnifying Party is controlling the defense of such Indemnitee Third Party Claim, the Indemnified Party shall cooperate, and cause its Affiliates and agents to cooperate upon request of the Indemnifying Party in the defense or prosecution of the Third Party Claim, including by furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials or appeals as may reasonably be requested by the counsel retained by Indemnifying Party. In the indemnifying Party would be inappropriate due to actual or potential differing interests between event that the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim. If the indemnifying Indemnifying Party does not assume notify the Indemnified Party of the Indemnifying Party’s intent to defend any Third Party Claim within ten (10) Business Days after notice thereof, the Indemnified Party may (without further notice to the Indemnifying Party) undertake the defense thereof with counsel of its choice and at the indemnification claim as described in this Section 15.4 Indemnifying Party’s reasonable expense (Conditions to Indemnificationincluding reasonable, out-of-pocket attorneys’ fees and costs and expenses of enforcement or defense), then the Indemnitee may defend the indemnification claim but will have no obligation to do so. The Indemnitee will not settle or compromise the indemnification claim without the prior written consent of the indemnifying Party, and the indemnifying Party will not settle or compromise the indemnification claim in any manner which would have an adverse effect on the Indemnitee’s interests (including any rights under this Agreement or the scope, validity, or enforceability of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (by the indemnifying Indemnifying Party or the IndemniteeIndemnified Party, as the case may be, shall have the right to join in (including the right to conduct discovery, interview and examine witnesses and participate in all settlement conferences), will but not be unreasonably withheldcontrol, conditionedat its own expense, the defense of any Third Party Claim that the other Party is defending as provided in this Agreement.
(c) In no event may an Indemnified Party settle or delayed. The Indemnitee will reasonably cooperate with compromise any Third Party Claim for which it/he/she intends to seek indemnification from the indemnifying Indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached hereunder without the written prior consent of the indemnifying Indemnifying Party, or the indemnification provided under such Section 11.1, 11.2 or 11.3 as to such Third Party pursuant to this Section 15.4 (Conditions to Indemnification)Claim shall be null and void.
Appears in 1 contract
Samples: Collaborative Research and License Agreement (Rigel Pharmaceuticals Inc)
Conditions to Indemnification. Any Person seeking indemnification (the “Indemnitee”) under this Article 15 (Indemnification; Limitation Of Liability; Insurance) will give prompt written notice The obligations of the indemnity claim to the indemnifying Party under Sections 7.2 and promptly provide a copy 7.3 are conditioned upon the delivery of written notice to the indemnifying Party of any complaintpotential Liability promptly after the indemnified Party becomes aware of such potential Liability; provided, summons, or other written or verbal notice that the Indemnitee receives in connection with failure of the Aggrieved Party to give such notice or any such claim. An Indemnitee’s failure delay thereof shall not affect the Aggrieved Party's right to deliver written notice will relieve the indemnifying Party of liability to the Indemnitee under this Article 15 (Indemnification; Limitation Of Liability; Insurance) only indemnification hereunder, except to the extent that such failure or delay is prejudicial to impairs the indemnifying Party’s 's ability to defend or settle contest any such claimLiability. The indemnifying Party will shall have the right to assume and control the defense of the indemnification any suit or claim at its own expense with counsel selected by the indemnifying Party and reasonably acceptable related to the Indemnitee; provided, however, that an Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying Party, if representation of such Indemnitee by the counsel retained by the indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings. The indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claimLiability. If the indemnifying Party does defends the suit or claim, the indemnified Party may participate in (but not control) the defense thereof at its sole cost and expense. If the Indemnifying Party shall not assume the defense of any such suit or claim related to the indemnification claim as described in this Section 15.4 (Conditions to Indemnification)Liability, then the Indemnitee Aggrieved Party may defend against such suit or claim in such manner as it may deem appropriate and, unless the indemnification Indemnifying Party shall deposit with the Aggrieved Party a sum equivalent to the total amount demanded in such suit or claim but will have no obligation or shall deliver to do so. The Indemnitee will not the Aggrieved Party a surety bond in form and substance reasonably satisfactory to the Aggrieved Party in such amount, the Aggrieved Party may settle such suit or compromise the indemnification claim without the prior written consent of the indemnifying Partyon such terms as it may deem appropriate, and the indemnifying Indemnifying Party will not settle shall promptly reimburse the Aggrieved Party for the amount of all Liabilities incurred by the Aggrieved Party in connection with the defense against or compromise settlement of such suit or claim. If no settlement of such suit or claim is made, the indemnification claim in any manner which would have an adverse effect on Indemnifying Party shall promptly reimburse the Indemnitee’s interests (including any rights under this Agreement or Aggrieved Party for the scope, validity, or enforceability amount of any Patent Rights, Confidential Information, or other rights licensed to NVS by HMI hereunder), without the prior written consent of the Indemnitee, which consent, in each case (Liabilities incurred by the indemnifying Aggrieved Party in the defense against such suit or the Indemnitee, as the case may be), will not be unreasonably withheld, conditioned, or delayed. The Indemnitee will reasonably cooperate with the indemnifying Party at the indemnifying Party’s expense and will make available to the indemnifying Party all pertinent information under the control of the Indemnitee, which information will be subject to Article 13 (Confidentiality). The indemnifying Party will not be liable for any settlement or other disposition of the claims by the Indemnitee if such settlement is reached without the written consent of the indemnifying Party pursuant to this Section 15.4 (Conditions to Indemnification)claim.
Appears in 1 contract
Samples: Manufacturing and Supply Agreement (Women First Healthcare Inc)