Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply: (a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to: (i) approval by any relevant insurers (without prejudice to Section 11.3(f); and (ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim; (b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a): (i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim; (ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and (iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed; (c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if: (i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or (ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b); (d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim; (e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of: (i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and (ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification; (f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and (g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 20 contracts
Samples: Supply Agreement, Supply Agreement, Supply Agreement
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)) below, where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f)); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):) above:
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a)) above; or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or and 11.3(b)) above;
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) above applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 7 contracts
Samples: Standing Offer Agreement, Standing Agreement, Standing Agreement
Conduct of Claims. In the (i) As soon as reasonably practicable and in any event within twenty (20) Business Days after becoming aware of circumstances giving rise or likely to give rise to any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person claim made in respect of which an indemnity is provided indemnified matter under this § 21.6 ("Claim"), the non-defaulting Party ("Indemnity Claiming Party") shall give written notice of that fact to the defaulting Party ("Indemnity Defaulting Party") together with such particulars as are reasonably required by the Supplier pursuant Indemnity Claiming Party to ARTICLE 11, enable it to understand the following provisions shall apply:
(a) subject grounds upon which the Claim is likely to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); andbased.
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the Supplier Indemnity Defaulting Party accepts that any liability resulting from any action or proceeding will be indemnified under § 21.6(a) (Indemnity) above, on the giving of a notice by the Indemnity Claiming Party pursuant to § 21.6(c)(i), the Indemnity Defaulting Party shall, subject to providing the party entitled to indemnification Indemnity Claiming Party with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such actionaction or proceeding, permit or require the Supplier be entitled to dispute the claim on behalf Claim in the name of the person entitled to indemnification Indemnified Person at the Supplier’s Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim Claim and of any incidental negotiations; provided that the person entitled to indemnification . The Indemnity Claiming Party shall give the Supplier (provided at the Supplier’s cost) Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(biii) with With respect to any claim Claim conducted by the Supplier Indemnity Defaulting Party pursuant to Section 11.3(a§ 21.6(c)(ii):
(iI) the Supplier Indemnity Defaulting Party shall keep the person entitled to indemnification Indemnity Claiming Party fully informed and consult with it about material elements (including the making of any payment or settlement) of the conduct of the claimClaim;
(iiII) the Supplier Indemnity Defaulting Party shall not bring the name of the person entitled Indemnity Claiming Party into disrepute by reason of:
(a) the Indemnity Defaulting Party's conduct of such Claim being below the standard that would have been pursued by a prudent defendant to indemnification such Claim advised by skilled and experienced counsel; or
(b) statements made by the Indemnity Defaulting Party regarding (other than to the extent that any such statements regarding the Buyer are established as a matter of fact), or any Group Member thereof) into disreputeon behalf of, the Indemnity Claiming Party; and
(iiiIII) the Supplier Indemnity Defaulting Party shall not pay or settle such claims admit any liability in respect of a Claim without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;Indemnity Claiming Party.
(civ) a person entitled to indemnification The Indemnity Claiming Party shall be free to pay or settle any claim Claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(iI) the Supplier Indemnity Defaulting Party is not entitled to, or is not permitted or instructed, to take conduct of the claim Claim in accordance with Section 11.3(a§ 21.6(c)(ii);
(II) the Indemnity Defaulting Party fails to notify the Indemnity Claiming Party of its intention to take conduct of the relevant Claim within twenty (20) Business Days of the notice from the Indemnity Claiming Party under § 21.6(c)(i) above or notifies the Indemnity Claiming Party that it does not intend to take conduct of the Claim; and
(III) the Indemnity Defaulting Party fails to comply with any provision of this § 21.6(c) which materially:
(a) increases the liability or exposure of the Indemnity Claiming Party to the relevant Claim; or
(iib) prejudices the Supplier fails to comply Indemnity Claiming Party's position in any material respect with defending the provisions of Sections 11.3(a) or 11.3(b);relevant Claim.
(dv) the person entitled to indemnification pursuant to ARTICLE 11 The Indemnity Claiming Party shall be free at any time to give notice to the Supplier Indemnity Defaulting Party that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim Claim (or of any incidental negotiations) to which Section 11.3(a§ 21.6(c)(ii) applies. On receipt of such notice the Supplier Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such claim Claim to the person entitled to indemnificationIndemnity Claiming Party, and shall provide to the person entitled to indemnification Indemnity Claiming Party all reasonable co- operationcooperation, access and assistance for the purposes of considering and resisting such claim;.
(evi) if If the Supplier Indemnity Claiming Party gives any notice pursuant to § 21.6(c)(v) above, then the Indemnity Defaulting Party shall be released from any liability under any indemnity under this Agreement in respect of such Claim, subject to:
(I) the Indemnity Defaulting Party paying the costs or expenses of the Indemnity Claiming Party, which were incurred by the Indemnity Claiming Party in connection with the Claim prior to the date on which the Indemnity Claiming Party gives any notice pursuant to § 21.6(c)(v); and
(II) the Indemnity Defaulting Party remaining liable for the finally agreed or determined amount of losses, costs, charges, expenses and other liabilities arising in relation to such Claim but excluding therefrom any agreed or determined amount to the extent that it has been materially increased by reason of the Indemnity Claiming Party's conduct of such Claim being below the standard that would have been pursued by a prudent defendant to such Claim advised by skilled and experienced counsel.
(vii) If the Indemnity Defaulting Party pays to the person entitled to indemnification Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the person entitled to indemnification subsequently Indemnity Claiming Party separately recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim Claim under the indemnity, the person entitled to indemnification Indemnity Claiming Party shall forthwith as soon as reasonably practicable repay to the Supplier whichever is Indemnity Defaulting Party the lesser of:
(iI) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any reasonable out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Indemnity Claiming Party in recovering the same; and
(iiII) the amount paid to the person entitled to indemnification Indemnity Claiming Party by the Supplier Indemnity Defaulting Party in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 5 contracts
Samples: Individual Power Purchase Agreement, Individual Power Purchase Agreement, Individual Power Purchase Agreement
Conduct of Claims. In connection with the event indemnities in favour of any claimsIndemnified Person under this Agreement, statutory feesother than in relation to any matter which is an Issue under (and as defined in) the Tax Consultation Letter:
7.6.1 the Lessor will as soon as practicable notify the Lessee if a claim is made, costs, charges, penalties (including without limitation or if it becomes aware that a claim may be made against the Lessor or any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from other Indemnified Person which may give rise to a person Loss in respect of which the Lessor or any other Indemnified Person is or may become entitled to an indemnity under clause 7.4;
7.6.2 a notification under clause 7.6.1 shall give such details as the Lessor or the other Indemnified Person then has regarding the claim or potential claim and any Loss or potential Loss;
7.6.3 if the claim or potential claim may give rise to a Loss in respect of which the liability of the Lessor or such other Indemnified Person is provided by fully insured under the Supplier pursuant protection and indemnity insurances relating to ARTICLE 11the Ship, the following provisions shall applyLessor will act, and will procure that any other Indemnified Person will act, in accordance with the directions of the protection and indemnity club or association in which the Ship is entered in relation to defending, accepting or settling that claim, preserving nevertheless the rights of the Lessor against the Lessee under this Agreement and the other Lease Documents;
7.6.4 subject to clause 7.6.1 the Lessor will not, and will procure that no other Indemnified Person will, settle any claim or discharge and pay any court judgment or administrative penalty in respect of any claim unless:
(a) subject to Sections 11.3(b)the Lessor is of the opinion, 11.3(c) and 11.3(d)acting in good faith, where it appears that a person is or may be entitled to indemnification from the Supplier continuance of the proceedings in respect of all (but not part only) such claim and/or the non-payment of any court judgment or administrative penalty will result in criminal liability for, or the imposition of a civil penalty on, or the attachment of any assets of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by Lessor or any relevant insurers (without prejudice to Section 11.3(f)other Indemnified Person; and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;or
(b) with respect the Lessor and the Lessee do not agree that there are reasonable grounds for disputing such claim or for a successful appeal against such judgment or penalty (as appropriate), whereupon the Lessee shall have the right (subject always to paragraph (a) above) to seek an opinion from leading counsel as to whether there is more than a sixty-five per cent (65%) chance of successfully disputing such claim or for such an appeal to be successful (and if such leading counsel is of that opinion, any claim conducted costs reasonably incurred by the Supplier pursuant Lessee in obtaining such opinion shall be reimbursed by the Lessor and the Lessor will not settle the claim or discharge or pay the applicable judgment) provided however that if leading counsel is of the opinion that there is a less than sixty-five per cent (65%) chance of successfully disputing the action or for such an appeal to Section 11.3(a):
(i) be successful, then the Supplier Lessor shall keep the person be entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) or discharge or pay the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) court judgment or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (administrative penalty, as the case may be) the conduct of . It is agreed that if any defence, dispute, compromise or appeal insurers have made a partial payment in respect of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier Lessor shall promptly take all steps necessary to transfer the conduct of such claim have no responsibility to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) Lessee if the Supplier pays insurers subsequently settle a claim in exercise of their rights of subrogation. The Lessor shall agree not to the person entitled to indemnification an amount settle any claim or discharge and pay any court judgment or administrative penalty in respect of an indemnity and the person entitled any claim, if it is secured to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred its reasonable satisfaction by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that Lessee against the amount of such recovery aggregated with any sum recovered from claim, court judgment or administrative penalty and the Supplier exceeds any loss sustained by the person entitled to indemnification;
Lessor is satisfied (fin its absolute discretion) the Supplier shall inform the person entitled to indemnification that none of the requirements of circumstances envisaged in clause 7.6.5(e) below shall apply or arise if the Lessor does not settle the claim or discharge or pay any insurer who may have an obligation to provide an indemnity judgment or penalty in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.thereof;
Appears in 5 contracts
Samples: Lease Agreement (Seaspan CORP), Lease Agreement (Seaspan CORP), Lease Agreement (Seaspan CORP)
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b10.2(b), 11.3(c10.2(c) and 11.3(d10.2(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f10.2(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a10.2(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a10.2(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a10.2(a) or 11.3(b10.2(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 10 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a10.2(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 5 contracts
Samples: Supply Agreement, Supply Agreement, Supply Agreement
Conduct of Claims. In Unless and until a Relevant Event shall have occurred, and without prejudice to, or constituting a pre-condition to, the event of any claimsLessor's right to be indemnified pursuant to, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from this Lease:
9.5.1 the Lessor shall notify the Lessee upon receiving a person claim in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person Lessor is or may become entitled to an indemnity under clause 9.4 as soon as practicable following receipt of such claim;
9.5.2 subject to the prior written approval of the Lessor (such approval not to be unreasonably withheld or unreasonably delayed), the Lessee shall be entitled to indemnification from take, in the Supplier in respect of all (but not part only) name of the liability arising out of a claimLessor, such person entitled action as the Lessee shall see fit to indemnification may at its sole election and defend or avoid any such Indemnity Losses as are referred to in clauses 9.4.1, 9.4.2, 9.4.3 or 9.4.4 or to recover the same from any third party, subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); the Lessee first ensuring that the Lessor is indemnified and
(ii) , if the Supplier providing the party entitled to indemnification with a Lessor so requires, secured indemnity to its reasonable satisfaction against all costs Indemnity Losses thereby incurred or to be incurred and expenses (including legal expenses) all Taxes incurred or to be incurred as a consequence thereof; and
9.5.3 the Lessor shall, to the extent that it may incur by reason is practical so to do, consult with the Lessee before making any payment to a third party in respect of such Indemnity Losses as are referred to in clauses 9.4.1, 9.4.2, 9.4.3 or 9.4.4 and, to the extent that the Lessee is entitled to take action to avoid such Indemnity Losses in accordance with clause 9.5.2 and subject to the Lessee first ensuring that the Lessor is indemnified and secured to the Lessor's reasonable satisfaction against all Indemnity Losses thereby incurred or to be incurred and all Taxes incurred or to be incurred as a consequence thereof, the Lessor shall at the Lessee's request co-operate with the Lessee in taking such action. Notwithstanding the above, permit the Lessor shall not be obliged to take any such action where the Lessor notifies the Lessee that it considers in its conclusive opinion but acting in good faith that it is or require would be materially prejudicial to the Supplier interests of the Lessor Group or any member thereof for such action to dispute be taken. The Lessor shall not be obliged to give any reasons for such notification but, when providing the Lessee with such notification, the Lessor will provide the Lessee with written confirmation from a board member of (a) the Lessor Agent where the claim on behalf referred to in clause 9.5.1 shall be in respect of the person entitled an amount less than or equal to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, five million Pounds ((pound)5,000,000) or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with the Lessor Parent where the claim referred to in clause 9.5.1 shall be in respect of an amount in excess of five million Pounds ((pound)5,000,000), that the decision not to take any claim conducted such action was taken after consideration by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements senior management of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationLessor Agent or, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) , the conduct Lessor Parent. Any amount or any increase in any amount payable by the Lessor as a result of any defencedelay consequent upon the operation of clauses 9.5.2 and 9.5.3 shall, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes avoidance of considering and resisting such claim;
(e) if doubt, be for the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value account of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterLessee.
Appears in 5 contracts
Samples: Lease Agreement (Golar LNG LTD), Lease Agreement (Golar LNG LTD), Lease Agreement (Golar LNG LTD)
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b11.2(b), 11.3(c11.2(c) and 11.3(d11.2(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f11.2(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a11.2(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a11.2(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a11.2(a) or 11.3(b11.2(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a11.2(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 4 contracts
Samples: Supply Agreement, Supply Agreement, Supply Agreement
Conduct of Claims. In 5.1 This paragraph 5 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Schedule 9.1, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "TUPE Beneficiary" and the party giving the indemnity is referred to as the "TUPE Indemnifier".
5.2 If the TUPE Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the TUPE Beneficiary is, or may become entitled to, indemnification under this Schedule 9.1 ("TUPE Claim"), the TUPE Beneficiary shall give notice to the TUPE Indemnifier as soon as reasonably practicable and in any event within ten (10) Working Days of receipt of the same.
5.3 Subject to paragraphs 5.4 and 5.5, on the giving of a notice by the Supplier TUPE Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)paragraph 5.2 above, where it appears that a person the TUPE Beneficiary is or may be entitled to indemnification from the Supplier TUPE Indemnifier in respect of all (but not part only) of the liability arising out of a claimthe TUPE Claim, such person entitled the TUPE Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification TUPE Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf TUPE Claim in the name of the person entitled to indemnification TUPE Beneficiary at the SupplierTUPE Indemnifier’s own expense and take conduct of any defence, dispute, compromise, compromise or appeal of the claim TUPE Claim and of any incidental negotiations; provided that negotiations relating to the person entitled TUPE Claim. If the TUPE Indemnifier does elect to indemnification conduct the TUPE Claim, the TUPE Beneficiary shall give the Supplier (provided at the Supplier’s cost) TUPE Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;TUPE Claim and, subject to paragraph 5.5 below, the TUPE Beneficiary shall not make any admission which could be prejudicial to the defence or settlement of the TUPE Claim without the prior written consent of the TUPE Indemnifier.
(b) with 5.4 With respect to any claim TUPE Claim conducted by the Supplier TUPE Indemnifier pursuant to Section 11.3(a):paragraph 5.3 above:
(ia) the Supplier TUPE Indemnifier shall keep the person entitled to indemnification TUPE Beneficiary fully informed and consult with it about material elements of the conduct of the claimTUPE Claim;
(iib) the Supplier TUPE Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) TUPE Beneficiary into disrepute; and;
(iiic) the Supplier TUPE Indemnifier shall not pay or settle such claims TUPE Claim without the prior written consent of the person entitled to indemnificationTUPE Beneficiary, such consent not to be unreasonably withheld or delayed;; and
(cd) a person the TUPE Indemnifier shall conduct the TUPE Claim with all due diligence.
5.5 The TUPE Beneficiary shall be entitled to indemnification have conduct of the TUPE Claim and shall be free to pay or settle any claim TUPE Claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(ia) the Supplier TUPE Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim TUPE Claim in accordance with Section 11.3(a)paragraph 5.3 above;
(b) the TUPE Indemnifier fails to notify the TUPE Beneficiary of its intention to take conduct of the relevant TUPE Claim within ten (10) Working Days of the notice from the TUPE Beneficiary under paragraph 5.2 above or if the TUPE Indemnifier notifies the TUPE Beneficiary that it does not intend to take conduct of the TUPE Claim; or
(iic) the Supplier TUPE Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) paragraph 5.4 above.
5.6 With respect to any TUPE Claim for which the DCC or 11.3(bany Replacement Contractor is the TUPE Beneficiary and the conduct of which the DCC, acting reasonably, considers is likely to have an adverse impact on the general public's perception of the DCC or any Replacement Contractor ("Sensitive TUPE Claim");
(d) , the person TUPE Indemnifier shall only be entitled to indemnification pursuant take conduct of any defence, dispute, compromise or appeal of the Sensitive TUPE Claim with the DCC's prior written consent. If the DCC withholds such consent and elects that it or the Replacement Contractor shall conduct the defence, dispute, compromise or appeal of the Sensitive TUPE Claim, it shall (or shall procure the Replacement Contractor shall) conduct the Sensitive TUPE Claim with all due diligence and if any failure to ARTICLE 11 do so results in an increase in the amount recoverable by the TUPE Beneficiary in respect of an indemnity under this Agreement, the TUPE Indemnifier shall only be liable to indemnify the TUPE Beneficiary in respect of that amount which would have been recoverable by the TUPE Beneficiary had it conducted the Sensitive TUPE Claim with all due diligence.
5.7 The DCC or Replacement Contractor shall be free at any time to give written notice to the Supplier TUPE Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) TUPE Claim to which Section 11.3(a) appliesparagraph 5.3 above applies notwithstanding that it does not have the right to do so pursuant to paragraph 5.3 if, in the reasonable opinion of the DCC, the TUPE Claim is, or has become, a Sensitive TUPE Claim. On receipt In such cases, the provisions of such notice paragraph 5.6 above shall apply.
5.8 If the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier TUPE Indemnifier pays to the person entitled to indemnification TUPE Beneficiary an amount in respect of an indemnity and the person entitled to indemnification TUPE Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:6
(ia) an amount equal to the sum recovered (or the value of the saving discount, credit, saving, relief, other benefit or benefit amount otherwise obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification TUPE Beneficiary in recovering or obtaining the same; and
(iib) the amount paid to the person entitled to indemnification TUPE Beneficiary by the Supplier TUPE Indemnifier in respect of the claim TUPE Claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification TUPE Beneficiary to pursue such recovery and that the Supplier TUPE Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier TUPE Indemnifier exceeds any loss Loss sustained by the person entitled to indemnification;
TUPE Beneficiary (f) including for this purpose any indirect Losses sustained by the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who TUPE Beneficiary which may have an obligation to provide an indemnity in respect of any liability arising under be excluded by this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from being recovered from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterTUPE Indemnifier).
Appears in 4 contracts
Samples: Tupe Agreement, Schedule 9.1 Tupe, Tupe Agreement
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Whenever a claim for indemnification shall arise under this Section 11.3(f); and
(ii) the Supplier providing 17 as a result of a third-party claim, the party entitled to seeking indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expensesthe "Indemnified Party"), shall notify the party from whom such indemnification is sought (the "Indemnifying Party") that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf in writing of the person entitled to indemnification at Proceeding and the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of facts constituting the basis for such claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all in reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claimdetail;
(ii) Such Indemnifying Party shall have the Supplier right to retain the counsel of its choice in connection with such Proceeding and to participate at its own expense in the defense of any such Proceeding; provided, however, that counsel to the Indemnifying Party shall not bring (except with the name consent of the person entitled relevant Indemnified Party) also be counsel to indemnification such Indemnified Party. In no event shall the Indemnifying Party be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from its own counsel for all Indemnified Parties in connection with any one action or any Group Member thereof) into disreputeseparate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; and
(iii) the Supplier shall not pay or settle such claims No Indemnifying Party shall, without the prior written consent of the person entitled to indemnification, such Indemnified Parties (which consent shall not to be unreasonably withheld withheld), settle or delayed;
(c) a person entitled compromise or consent to indemnification shall be free the entry of any judgment with respect to pay any litigation, or settle any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim on such terms as it thinks fit (and without prejudice to its rights and remedies whatsoever in respect of which indemnification could be sought under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute17 unless such settlement, compromise or appeal consent (A) includes an unconditional release of each Indemnified Party from all liability arising out of such litigation, investigation, proceeding or claim and (B) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnified Party.
Appears in 4 contracts
Samples: Purchase Agreement (Document Security Systems Inc), Purchase Agreement (Sanders Morris Harris Group Inc), Purchase Agreement (Document Security Systems Inc)
Conduct of Claims. In This paragraph 10 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Schedule, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". If the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Schedule ("Claim"), the Beneficiary shall give notice to the Indemnifier as soon as reasonably practicable and in any event within 10 Working Days of receipt of the same. Subject to paragraphs 10.4 and 10.5, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)paragraph 10.2 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a claimthe Claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf Claim in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnified own expense and take conduct of any defence, dispute, compromise, compromise or appeal of the claim Claim and of any incidental negotiations; provided that negotiations relating to the person entitled Claim. If the Indemnifier does elect to indemnification conduct the Claim, the Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;
(b) with Claim and, subject to paragraph 10.5 below, the Beneficiary shall not make any admission which could be prejudicial to the defence or settlement of the Claim without the prior written consent of the Indemnifier. With respect to any claim Claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) paragraph 10.3 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) Claim; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) the Supplier Indemnifier shall not pay or settle such claims Claim without the prior written consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person ; and the Indemnifier shall conduct the Claim with all due diligence. The Beneficiary shall be entitled to indemnification have conduct of the Claim and shall be free to pay or settle any claim Claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim Claim in accordance with Section 11.3(a)paragraph 10.3 above; or
(ii) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant Claim within 10 Working Days of the notice from the Beneficiary under paragraph 10.2 above or if the Indemnifier notifies the Beneficiary that it does not intend to take conduct of the Claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) paragraph 10.4 above. With respect to any Claim for which the Commissioner or 11.3(bthe Supplier or the Supplier Party are the Beneficiary and the conduct of which the Commissioner or Supplier acting reasonably, considers is likely to have an adverse impact on the general public's perception of the Commissioner or the Supplier or the Supplier Party ("Sensitive Claim");
(d) , the person Indemnifier shall only be entitled to indemnification pursuant take conduct of any defence, dispute, compromise or appeal of the Sensitive Claim with the Beneficiary's prior written consent. If the Beneficiary withholds such consent and elects to ARTICLE 11 conduct the defence, dispute, compromise or appeal of the Sensitive Claim itself, it shall conduct the Sensitive Claim with all due diligence and if any failure to do so results in an increase in the amount recoverable by the Beneficiary in respect of an indemnity under this Agreement, the Indemnifier shall only be liable to indemnify the Beneficiary in respect of that amount which would have been recoverable by the Beneficiary had it conducted the Sensitive Claim with all due diligence. The Beneficiary shall be free at any time to give written notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defenceClaim, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) appliesparagraph 10.3 above applies notwithstanding that it does not have the right to do so pursuant to paragraph 10.3 if, in the reasonable opinion of the Beneficiary the Claim is, or has become, a Sensitive Claim. On receipt of In such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnitycases, the person entitled to indemnification provisions of paragraph 10.6 above shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterapply.
Appears in 3 contracts
Samples: Supply Agreement, Occupational Health Services Agreement, Employment Law Services Agreement
Conduct of Claims. In The provisions of this clause 11.5 shall apply to the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed conduct by a party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the Beneficiary and the party giving the indemnity is referred to as the Indemnifier. If the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Agreement, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within twenty (20) Business Days of receipt of the same. Subject to sub-clauses (c), (d) and (e) below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
sub-clause (a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco operation, access and assistance for the purposes of considering and resisting such claim;
(b) with . With respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
sub-clause (ib) above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) and the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification . The Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(asub-clause (b); or
or the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (ii20) Business Days of the Supplier notice from the Beneficiary under sub-clause (a) or notifies the Beneficiary that it does not intend to take conduct of the claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(bsub-clause (c);
(d) the person entitled to indemnification pursuant to ARTICLE 11 . The Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(asub-clause (b) applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- co operation, access and assistance for the purposes of considering and resisting such claim;
. If the Beneficiary gives any notice pursuant to this sub-clause (e), then the Indemnifier shall be released from any liability under its indemnity under clause 11.3 or clause 11.4 (as the case may be) if and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to sub-clause (b) in respect of such claim. If the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) : an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-out of pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that PROVIDED THAT there shall be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss sustained by the Beneficiary (including for this purpose indirect or consequential losses or claims for loss of profits which are excluded by this Agreement from being recovered from the Indemnifier). Any person entitled taking any of the steps contemplated by sub-clauses (a) to indemnification;
(fd) the Supplier (inclusive) shall inform the person entitled to indemnification of comply with the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement. To avoid doubt the provisions of clause 17.19 (Mitigation) apply to any indemnity given under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterindemnity shall not extend to Direct Losses which could have been reduced or avoided by the Beneficiary complying with the provisions of such clause.
Appears in 2 contracts
Samples: Strategic Partnering Agreement, Strategic Partnering Agreement
Conduct of Claims. (a) In the event of case any claims, statutory fees, costs, charges, penalties (including without limitation action or claim shall be brought against any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person Indemnified Person in respect of which an indemnity is provided by recovery may be sought from the Supplier pursuant to ARTICLE 11Issuer under this Clause 6, the following provisions relevant Indemnified Person shall apply:as soon as reasonably practicable notify the Issuer in writing of such fact, but failure to do so will not relieve the Issuer from any liability under this Agreement and in any event shall not relieve it from any liability which it may have otherwise than on account of the indemnities contained in this Agreement.
(ab) Each Indemnified Person shall thereafter, subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) any requirement imposed by an insurer of the liability arising out of a claim, such person entitled Indemnified Person and to indemnification may at its sole election and subject tothe extent permitted by applicable law or regulation:
(i) approval at reasonable intervals keep the Issuer informed of the progress of the claim or action;
(ii) provide the Issuer with copies of such documentation relating to the claim or action as the Indemnified Person may reasonably request; and
(iii) maintain reasonable consultation with the Issuer regarding decisions concerning the claim or action, subject in each case to the Indemnified Person being indemnified, held harmless and secured to its reasonable satisfaction against all Losses incurred by it in consequence of its compliance with this Clause 6, and provided that nothing in this Clause 6 shall:
(A) require any Indemnified Person to provide the Issuer with a copy of any part of any document which it, in good faith, considers to be held by it subject to a duty of confidentiality or to be privileged whether in the context of any litigation connected with the claim or otherwise; or
(B) require an Indemnified Person to do, or refrain from doing, anything which would, or which the Issuer considers might, either prejudice any insurance cover to which it or any other Indemnified Person may from time to time be entitled, or from which it or any of them may benefit or which may prejudice the reputation or standing, or be detrimental to the business of, such Indemnified Person or of any other Indemnified Person.
(c) The Issuer may participate at its own expense in the defence of any such action; provided, however, that legal advisers to the Issuer shall not (except with the consent of the relevant Indemnified Person) also be legal advisers to the Indemnified Person.
(d) The Issuer shall not, without the prior written consent of the relevant Indemnified Person, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any relevant insurers governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification could be sought under this Clause 6 (without prejudice to Section 11.3(fwhether or not the Indemnified Person(s) are actual or potential parties thereto), unless such settlement, compromise or consent:
(i) includes an unconditional release of each Indemnified Person from all liability arising out of such litigation, investigation, proceeding or claim; and
(ii) the Supplier providing the party entitled does not include a statement as to indemnification with or an admission of fault, culpability or a secured indemnity failure to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur act by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnified Person.
Appears in 2 contracts
Samples: Subscription Agreement (Lifezone Metals LTD), Subscription Agreement (Lifezone Metals LTD)
Conduct of Claims. In This paragraph 10 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Schedule, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". If the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Schedule ("Claim"), the Beneficiary shall give notice to the Indemnifier as soon as reasonably practicable and in any event within 10 Working Days of receipt of the same. Subject to paragraphs 10.4 and 10.5, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)paragraph 10.2 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a claimthe Claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf Claim in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnified own expense and take conduct of any defence, dispute, compromise, compromise or appeal of the claim Claim and of any incidental negotiations; provided that negotiations relating to the person entitled Claim. If the Indemnifier does elect to indemnification conduct the Claim, the Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;
(b) with Claim and, subject to paragraph 10.5 below, the Beneficiary shall not make any admission which could be prejudicial to the defence or settlement of the Claim without the prior written consent of the Indemnifier. With respect to any claim Claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) paragraph 10.3 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) Claim; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) the Supplier Indemnifier shall not pay or settle such claims Claim without the prior written consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person ; and the Indemnifier shall conduct the Claim with all due diligence. The Beneficiary shall be entitled to indemnification have conduct of the Claim and shall be free to pay or settle any claim Claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim Claim in accordance with Section 11.3(a)paragraph 10.3 above; or
(ii) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant Claim within [10 Working Days] of the notice from the Beneficiary under paragraph 10.2 above or if the Indemnifier notifies the Beneficiary that it does not intend to take conduct of the Claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) paragraph 10.4 above. With respect to any Claim for which the Commissioner or 11.3(bthe Supplier or the Supplier Party are the Beneficiary and the conduct of which the Commissioner or Supplier acting reasonably, considers is likely to have an adverse impact on the general public's perception of the Commissioner or the Supplier or the Supplier Party ("Sensitive Claim");
(d) , the person Indemnifier shall only be entitled to indemnification pursuant take conduct of any defence, dispute, compromise or appeal of the Sensitive Claim with the Beneficiary's prior written consent. If the Beneficiary withholds such consent and elects to ARTICLE 11 conduct the defence, dispute, compromise or appeal of the Sensitive Claim itself, it shall conduct the Sensitive Claim with all due diligence and if any failure to do so results in an increase in the amount recoverable by the Beneficiary in respect of an indemnity under this Agreement, the Indemnifier shall only be liable to indemnify the Beneficiary in respect of that amount which would have been recoverable by the Beneficiary had it conducted the Sensitive Claim with all due diligence. The Beneficiary shall be free at any time to give written notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defenceClaim, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) appliesparagraph 10.3 above applies notwithstanding that it does not have the right to do so pursuant to paragraph 10.3 if, in the reasonable opinion of the Beneficiary the Claim is, or has become, a Sensitive Claim. On receipt of In such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnitycases, the person entitled to indemnification provisions of paragraph 10.6 above shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterapply.
Appears in 2 contracts
Samples: Office Cleaning Services Agreement, Agreement Relating to the Supply of Media Monitoring Services
Conduct of Claims. 12.1 This clause 12 shall apply to the conduct, by a party from whom an indemnity is sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the “Beneficiary” and the party giving the indemnity is referred to as the “Indemnifier”. Accordingly:
12.2 In the event that the Beneficiary receives any notice, demand, letter, or other document concerning any claim arising from the discharge the purported discharge or the failure to discharge the Functions or any of them from any claims, statutory fees, costs, charges, penalties third party it shall notify the Indemnifier of the claim as soon as reasonably practicable and in any event within twenty (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect 20) Working Days of which an indemnity is provided by receipt of the Supplier pursuant to ARTICLE 11, the following provisions same.
12.3 The Indemnifier shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled giving to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured Beneficiary an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the SupplierIndemnifier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;.
(b) with 12.4 With respect to any claim conducted by the Supplier indemnifier pursuant to Section 11.3(a):clause 12.3:
(i) 12.4.1 the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) 12.4.2 the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) 12.4.3 the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;.
(c) a person entitled to indemnification 12.5 The Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) 12.5.1 the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)clause 12.3; or
12.5.2 the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (ii20) Working Days of the Supplier notice from the Beneficiary under clause 12.2; or
12.5.3 the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);clause 12.4.
(d) the person entitled to indemnification pursuant to ARTICLE 11 12.6 The Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) clause 12.3 applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 2 contracts
Samples: Agency Agreement, Agency Agreement
Conduct of Claims. In 7.1 Subject to the event provisions of Clauses 7.2 to 7.4 (inclusive), to the fullest extent permitted by law, the Company shall be entitled (but shall not be obliged), at its own cost, and to the extent it so wishes, to take actions on behalf of the Director and to direct the conduct of the Director in the defence of any claimsClaims.
7.2 Without prejudice to the generality of the foregoing Clause 7.1, statutory fees, costs, charges, penalties and subject to the provisions of sub-clauses (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect a) and (b) of which an indemnity is provided by the Supplier pursuant to ARTICLE 11this Clause 7.2, the following provisions Company shall applybe entitled, at its own expense, to engage legal counsel (“Nominated Counsel”) to defend a Claim on behalf of a Director provided that:
(a) subject the Director shall have the right to Sections 11.3(b), 11.3(crefuse the engagement of Nominated Counsel to defend the Claim on his behalf and to engage his own legal counsel (“Personal Counsel”) in defending a Claim; and
(b) in the instance that the Director refuses the engagement of Nominated Counsel to defend the Claim on his behalf and 11.3(d), where it appears that a person is or may be entitled instead elects to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject toengage Personal Counsel:
(i) approval all costs and expenses related to the engagement of Personal Counsel (“Personal Counsel Costs”) shall be paid by any relevant insurers (without prejudice to Section 11.3(f)the director at his own expense; and
(ii) the Supplier providing Company shall be under no obligation under any provision of this Deed to indemnify the party Director in respect of Personal Counsel Costs unless:
(A) the Director’s engagement of Personal Counsel has been authorized by the Company; or
(B) the Director has reasonably determined that there may be a conflict of interest between the Director and the Company in the defence of a Claim, in which case then the Director shall be entitled to indemnification engage Personal Counsel (but not more than one law firm plus, if applicable, local counsel in respect of any such Claim) and the Director shall be indemnified for costs incurred in connection therewith in accordance with a secured indemnity the provisions of Clause 4.
7.3 In the instance that Nominated Counsel is engaged to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require defend the Supplier to dispute the claim Claim on behalf of the person entitled Director:
(a) the Company shall not be liable to indemnification at the SupplierDirector under this Deed or otherwise for any legal expenses subsequently directly incurred by the Director in connection with the Director’s own expense and take conduct defence of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiationssuch Claim; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;and
(b) with respect the Director shall be liable to the Company for any claim conducted amounts paid by the Supplier pursuant Company to Section 11.3(a):Nominated Counsel:
(i) in defending criminal proceedings in which the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;Director is convicted; or
(ii) in defending civil proceedings brought by the Supplier shall not bring the name of the person entitled to indemnification (company or any Group Member thereof) into disreputean associated company in which judgment is given against him; andor
(iii) in connection with an application for relief which is refused, and any such amounts shall fall to be repaid not later than:
(iv) in the Supplier event of the Director being convicted in the proceedings, the date when the conviction becomes final; or
(v) in the event of judgment being given against the Director in the proceedings, the date when the judgment becomes final; or
(vi) in the event of the Court refusing to grant the Director relief on the application, the date when the refusal of relief becomes final. References in this Clause 7.3 to a conviction, judgment or refusal of relief being ‘final’ shall be construed in accordance with section 234(5) of the Act.
7.4 The Director shall not pay (irrespective of whether Nominated Counsel or settle such claims Personal Counsel is engaged to defend the Claim on his behalf) without the prior written consent of the person entitled to indemnification, Company (such consent not to be unreasonably withheld or delayed):
(a) take any action that can be reasonably expected to have a material impact on the outcome of a Claim;
(b) agree any compromise or settlement in relation to a Claim; or
(c) a person entitled to indemnification shall be free to pay or settle make any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and payment in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such mattera Claim.
Appears in 2 contracts
Samples: Deed of Indemnity (DTZ Jersey Holdings LTD), Deed of Indemnity (Oxford Immunotec Global PLC)
Conduct of Claims. In 7.1. Subject to the event provisions of Clauses 7.2 to 7.4 (inclusive), to the fullest extent permitted by law, the Company shall be entitled (but shall not be obliged), at its own cost, and to the extent it so wishes, to take actions on behalf of the Officer and to direct the conduct of the Officer in the defence of any claimsClaims.
7.2. Without prejudice to the generality of the foregoing Clause 7.1, statutory fees, costs, charges, penalties and subject to the provisions of sub-clauses (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect a) and (b) of which an indemnity is provided by the Supplier pursuant to ARTICLE 11this Clause 7.2, the following provisions Company shall applybe entitled, at its own expense, to engage legal counsel (“Nominated Counsel”) to defend a Claim on behalf of an Officer provided that:
(a) subject the Officer shall have the right to Sections 11.3(b), 11.3(crefuse the engagement of Nominated Counsel to defend the Claim on his behalf and to engage his own legal counsel (“Personal Counsel”) in defending a Claim; and
(b) in the instance that the Officer refuses the engagement of Nominated Counsel to defend the Claim on his behalf and 11.3(d), where it appears that a person is or may be entitled instead elects to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject toengage Personal Counsel:
(i) approval all costs and expenses related to the engagement of Personal Counsel (“Personal Counsel Costs”) shall be paid by any relevant insurers (without prejudice to Section 11.3(f)the Officer at his own expense; and
(ii) the Supplier providing Company shall be under no obligation under any provision of this Deed to indemnify the party Officer in respect of Personal Counsel Costs unless:
(A) the Officer’s engagement of Personal Counsel has been authorized by the Company; or
(B) the Officer has reasonably determined that there may be a conflict of interest between the Officer and the Company in the defence of a Claim, in which case then the Officer shall be entitled to indemnification engage Personal Counsel (but not more than one law firm plus, if applicable, local counsel in respect of any such Claim) and the Officer shall be indemnified for costs incurred in connection therewith in accordance with a secured indemnity the provisions of Clause 4.
7.3. In the instance that Nominated Counsel is engaged to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require defend the Supplier to dispute the claim Claim on behalf of the person entitled Officer:
(a) the Company shall not be liable to indemnification at the SupplierOfficer under this Deed or otherwise for any legal expenses subsequently directly incurred by the Officer in connection with the Officer’s own expense and take conduct defence of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiationssuch Claim; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;and
(b) with respect the Officer shall be liable to the Company for any claim conducted amounts paid by the Supplier pursuant Company to Section 11.3(a):Nominated Counsel:
(i) in defending criminal proceedings in which the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;Officer is convicted; or
(ii) in defending civil proceedings brought by the Supplier shall not bring the name of the person entitled to indemnification (company or any Group Member thereof) into disreputean associated company in which judgment is given against him; andor
(iii) in connection with an application for relief which is refused, and
(iv) any such amounts shall fall to be repaid not later than:
(v) in the Supplier event of the Officer being convicted in the proceedings, the date when the conviction becomes final; or
(vi) in the event of judgment being given against the Officer in the proceedings, the date when the judgment becomes final; or
(vii) in the event of the Court refusing to grant the Officer relief on the application, the date when the refusal of relief becomes final. References in this Clause 7.3 to a conviction, judgment or refusal of relief being ‘final’ shall be construed in accordance with section 234(5) of the Act.
7.4. The Officer shall not pay (irrespective of whether Nominated Counsel or settle such claims Personal Counsel is engaged to defend the Claim on his behalf) without the prior written consent of the person entitled to indemnification, Company (such consent not to be unreasonably withheld or delayed):
(a) take any action that can be reasonably expected to have a material impact on the outcome of a Claim;
(b) agree any compromise or settlement in relation to a Claim; or
(c) a person entitled to indemnification shall be free to pay or settle make any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and payment in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such mattera Claim.
Appears in 1 contract
Conduct of Claims. (a) In the event of case any claims, statutory fees, costs, charges, penalties (including without limitation action or claim shall be brought against any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person Indemnified Person in respect of which an indemnity is provided by recovery may be sought from the Supplier pursuant to ARTICLE 11Issuer be under this Clause 10, the following provisions relevant Indemnified Person shall apply:promptly notify the Issuer in writing of such fact, but failure to do so will not relieve the Issuer from any liability under this Agreement and in any event shall not relieve it from any liability which it may have otherwise than on account of the indemnities contained in this Agreement.
(ab) Each Indemnified Person shall thereafter, subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) any requirement imposed by an insurer of the liability arising out of a claim, such person entitled Indemnified Person and to indemnification may at its sole election and subject tothe extent permitted by applicable law or regulation:
(i) approval by any relevant insurers at reasonable intervals keep the Issuer informed of the progress of the claim or action;
(without prejudice ii) provide the Issuer with copies of such documentation relating to Section 11.3(f)the claim or action as the Indemnified Party may reasonably request; and
(iiiii) maintain reasonable consultation with the Supplier providing Issuer regarding decisions concerning the party entitled claim or action, subject in each case to indemnification with a the Indemnified Person being indemnified and secured indemnity to its reasonable satisfaction against all costs Losses incurred by it in consequence of its compliance with this Clause 10, and expenses provided that nothing in this Clause 10 shall:
(including legal expensesA) that require any Indemnified Person to provide the Issuer with a copy of any part of any document which it, in good faith, considers to be held by it subject to a duty of confidentiality or to be privileged whether in the context of any litigation connected with the claim or otherwise; or
(B) require an Indemnified Person to do, or refrain from doing, anything which would, or which the Issuer reasonably considers might, either prejudice any insurance cover to which it or any other Indemnified Person may incur by reason from time to time be entitled, or from which it or any of them may benefit or which may prejudice the reputation or standing of such action, permit Indemnified Person or require the Supplier to dispute the claim on behalf of the person entitled to indemnification any other Indemnified Person.
(c) The Issuer may participate at the Supplier’s its own expense and take conduct in the defense of any defencesuch action; provided, disputehowever, compromise, or appeal of that legal advisers to the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier Issuer shall not bring (except with the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled relevant Indemnified Person (such consent not to indemnification, be withheld or delayed)) also be legal advisers to the Indemnified Person. The Issuer shall not be liable in respect of any settlement of any action effected without its consent (such consent not to be unreasonably withheld or delayed;
). The Issuer shall not, without the prior written consent of the relevant Indemnified Person (c) a person entitled such consent not to indemnification shall be free unreasonably withheld or delayed), settle or compromise or consent to pay the entry of any judgment with respect to any litigation, or settle any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim on such terms as it thinks fit (and without prejudice to its rights and remedies whatsoever in respect of which indemnification could be sought under this AgreementClause 10 (whether or not the Indemnified Person(s) ifare actual or potential parties thereto), unless such settlement, compromise or consent:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct includes an unconditional release of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt each Indemnified Person from all liability arising out of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationlitigation, and shall provide to the person entitled to indemnification all reasonable co- operationinvestigation, access and assistance for the purposes of considering and resisting such proceeding or claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid does not include a statement as to the person entitled or an admission of fault, culpability or a failure to indemnification act by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation or on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements behalf of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnified Person.
Appears in 1 contract
Samples: Subscription Agreement (Abivax S.A.)
Conduct of Claims. In This Clause 63 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a Party from a person in respect of which whom an indemnity is provided sought under this Contract, of claims made by a third person against a Party having (or claiming to have) the benefit of the indemnity. The Party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the Party giving the indemnity is referred to as the "Indemnifier". Accordingly:
63.1.1 if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Contract and any of the Ancillary Documents, or in relation to involvement in any investigation or proceedings by any auditor, inspector or ombudsman, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable together with such further information and documentation he or she may require and in any event within twenty (20) Business Days of receipt of the same;
63.1.2 subject to Clauses 63.1.3, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 63.1.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured sufficient indemnity to its reasonable satisfaction against all costs costs, charges and expenses (including legal expenses) , actions, demands, proceedings, claims whatsoever that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) 63.1.3 with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):Clause 63.1.2 above:
(ia) the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(iib) the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iiic) the Supplier Indemnifier shall not pay or settle such claims without the prior written consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
63.1.4 the Beneficiary shall (cwithout prejudice to its duty to mitigate) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Contract if:
(ia) the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 63.1.2 above; or
(iib) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (20) Business Days of the notice from the Beneficiary under Clause 63.1.1 above or notifies the Beneficiary that it does not intend to take conduct of the claim; or
(c) the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(aClause 63.1.3 above within twenty (20) or 11.3(b);Business Days of notice from the Beneficiary.
(d) 63.1.5 the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) Clause 63.1.2 above applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim. If the Beneficiary gives any notice pursuant to this Clause 63.1.3(b), then the Indemnifier shall be released from any liability under its indemnity under Clause 61.1, Clause 61.2 or otherwise (as applicable) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to Clause 63.1.2 in respect of such claim;
(e) 63.1.6 if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(ia) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(iib) the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, indemnity provided that there shall be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss sustained by the Beneficiary (including for this purpose indirect or consequential losses or claims for loss of profits which are excluded by this Contract from being recovered from the Indemnifier); and
63.1.7 any person entitled to indemnification;
(f) taking any of the Supplier steps contemplated by this Clause 63.1 shall inform the person entitled to indemnification of comply with the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.Contract. 64. NOT USED
Appears in 1 contract
Samples: Residual Waste Treatment Contract
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 1 contract
Samples: Supply Agreement
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from 12.11.1 When a person (“Indemnified Person”) has the benefit of an Indemnity in respect of which an indemnity is provided by the Supplier any Claim pursuant to ARTICLE 11the Contract, the following provisions shall apply:
Indemnified Person must give written notice to the Party giving the Indemnity (a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only“Indemnifying Party”) of the liability arising out of a claimnature and, such person entitled to indemnification may the extent reasonably known at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such actiontime, permit or require the Supplier to dispute the claim on behalf quantum of the person entitled to indemnification at Claim as soon as reasonably practicable after the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal commencement of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under Claim. Any such Claim is not to be settled without the indemnityapproval of the Indemnifying Party. After it has been notified of any such Claim, the person entitled Indemnifying Party shall assume the defense thereof, at its sole expense.
12.11.2 The Indemnified Person must provide reasonable information and documentation relating to indemnification shall forthwith repay such Claim to the Supplier whichever Indemnifying Party on a continuing basis.
12.11.3 Upon service of a notice by the Indemnified Person, the Indemnifying Party must defend any Claim on behalf of the Indemnified Person and the Indemnified Person must, at the Indemnifying Party’s cost, do all things reasonably necessary to assist the Indemnifying Party to defend, settle, or mitigate such Claim. Each applicable member of Company Group has the right, at its discretion, to select or approve the counsel to be engaged by Contractor to defend such member. Without prejudicing its right to the defense obligations set out in this Article 12.11.3, an Indemnified Person may participate, at its own expense, in its defense conducted by the Indemnifying Party.
12.11.4 Except when a Claim by an Indemnified Person, or the quantum of any such Claim, is the lesser of:
(i) an amount equal to the sum recovered (or the value subject of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred a bona fide dispute by the person entitled to indemnification in recovering Indemnifying Party, the same; and
(ii) Indemnifying Party must pay the amount paid to the person entitled to indemnification by the Supplier Indemnified Person in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part Claim within 30 days of a demand for payment of the person entitled to indemnification to pursue such recovery and that Claim.
12.11.5 When a Claim by an Indemnified Person is the Supplier is repaid only subject of a bona fide dispute by the Indemnifying Party, the Indemnifying Party must pay to the extent that Indemnified Person the undisputed amount within 30 days of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification a demand for payment of the requirements Claim and the remainder within 30 days of any insurer who may have an obligation to provide an indemnity in respect the resolution of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; anddispute.
(g) any person entitled to an indemnity from the Supplier 12.11.6 An Indemnified Person must take do all reasonable measures things reasonably necessary to mitigate any loss, damage or liability that it may suffer in respect of any such matterClaim.
Appears in 1 contract
Samples: Services Agreement
Conduct of Claims. In This paragraph 11 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Schedule 20, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the “Beneficiary” and the party giving the indemnity is referred to as the “Indemnifier”. If the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Schedule 20 (“Claim”), the Beneficiary shall give notice to the Indemnifier as soon as reasonably practicable and in any event within ten days of receipt of the same. Subject to paragraphs 11.4 and 11.5, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)paragraph 11.2, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a claimthe Claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf Claim in the name of the person entitled to indemnification Beneficiary at the SupplierIndemnifier’s own expense and take conduct of any defence, dispute, compromise, compromise or appeal of the claim Claim and of any incidental negotiations; provided that negotiations relating to the person entitled Claim. If the Indemnifier does elect to indemnification conduct the Claim, the Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;
(b) with Claim and, subject to paragraph 11.5, the Beneficiary shall not make any admission which could be prejudicial to the defence or settlement of the Claim without the prior written consent of the Indemnifier. With respect to any claim Claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) paragraph 11.3: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) Claim; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) the Supplier Indemnifier shall not pay or settle such claims Claim without the prior written consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person ; and the Indemnifier shall conduct the Claim with all due diligence. The Beneficiary shall be entitled to indemnification have conduct of the Claim and shall be free to pay or settle any claim Claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim Claim in accordance with Section 11.3(a)paragraph 11.3; or
(ii) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant Claim within ten days of the notice from the Beneficiary under paragraph 11.2 or if the Indemnifier notifies the Beneficiary that it does not intend to take conduct of the Claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterparagraph 11.4.
Appears in 1 contract
Conduct of Claims. In 22.1 This clause 22.1 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a Party from a person in respect of which whom an indemnity is provided sought under this IAA, of claims made by a third person against a Party having (or claiming to have) the benefit of the indemnity. The Party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the Party giving the indemnity is referred to as the "Indemnifier". Accordingly:
22.1.1 if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this IAA, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable having regard to any timescale imposed by a notice, demand, letter or any other form of document received by the Supplier Beneficiary;
22.1.2 subject to clauses 22.1.3, 22.1.4 and 22.1.5 below, on the giving of a notice by the Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)clause 22.1.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) at least half of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require action (over and above those which the Supplier Beneficiary would otherwise have borne if the Indemnifier had no entitlement to conduct the relevant claim)) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;
(b) 22.1.3 with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):clause 22.1.2 above:
(ia) the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(iib) the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iiic) the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification 22.1.4 the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) IAA if:
(ia) the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)clause 22.1.2 above; or
(iib) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within 20 Business Days of the notice from the Beneficiary under clause 22.1.2 above or notifies the Beneficiary that it does not intend to take conduct of the claim; or
(c) the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.clause
Appears in 1 contract
Samples: Inter Authority Agreement
Conduct of Claims. In 17.1 This paragraph 17 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this schedule, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier".
17.2 If the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this schedule ("Claim"), the Beneficiary shall given notice to the Indemnifier as soon as reasonably practicable and in any event within 10 Working Days of receipt of the same.
17.3 Subject to paragraphs 17.4 and 17.5, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)paragraph 17.2 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a claimthe Claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf Claim in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnified own expense and take conduct of any defence, dispute, compromise, compromise or appeal of the claim Claim and of any incidental negotiations; provided that negotiations relating to the person entitled Claim. If the Indemnifier does elect to indemnification conduct the Claim, the Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;Claim and, subject to paragraph 17.5 below, the Beneficiary shall not make any admission which could be prejudicial to the defence or settlement of the Claim without the prior written consent of the Indemnifier.
(b) with 17.4 With respect to any claim Claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):paragraph 17.3 above:
(i) 17.4.1 the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claimClaim;
(ii) 17.4.2 the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and;
(iii) 17.4.3 the Supplier Indemnifier shall not pay or settle such claims Claim without the prior written consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;; and
(c) a person 17.4.4 the Indemnifier shall conduct the Claim with all due diligence.
17.5 The Beneficiary shall be entitled to indemnification have conduct of the Claim and shall be free to pay or settle any claim Claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) 17.5.1 the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim Claim in accordance with Section 11.3(a)paragraph 17.3 above;
17.5.2 the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant Claim within [10 Working Days] of the notice from the Beneficiary under paragraph 17.2 above or if the Indemnifier notifies the Beneficiary that it does not intend to take conduct of the Claim; or
(ii) 17.5.3 the Supplier Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) paragraph 17.4 above.
17.6 With respect to any Claim for which the Authority or 11.3(bthe Contractor or the Contractor Party are the Beneficiary and the conduct of which the Authority or Contractor acting reasonably, considers is likely to have an adverse impact on the general public's perception of the Authority or the Contractor or the Contractor Party ("Sensitive Claim");
(d) , the person Indemnifier shall only be entitled to indemnification pursuant take conduct of any defence, dispute, compromise or appeal of the Sensitive Claim with the Beneficiary's prior written consent. If the Beneficiary withholds such consent and elects to ARTICLE 11 conduct the defence, dispute, compromise or appeal of the Sensitive Claim itself, it shall conduct the Sensitive Claim with all due diligence and if any failure to do so results in an increase in the amount recoverable by the Beneficiary in respect of an indemnity under this Agreement, the Indemnifier shall only be liable to indemnify the Beneficiary in respect of that amount which would have been recoverable by the Beneficiary had it conducted the Sensitive Claim with all due diligence.
17.7 The Beneficiary shall be free at any time to give written notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defenceClaim, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) appliesparagraph 17.3 above applies notwithstanding that it does not have the right to do so pursuant to paragraph 17.3 if, in the reasonable opinion of the Beneficiary the Claim is, or has become, a Sensitive Claim. On receipt In such cases, the provisions of such notice paragraph 17.6 above shall apply.
17.8 If the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnityClaim, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) 17.8.1 an amount equal to the sum recovered (or the value of the saving discount, credit, saving, relief, other benefit or benefit amount otherwise obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering or obtaining the same; and
(ii) 17.8.2 the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim Claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss sustained by the person entitled to indemnification;
Beneficiary (f) including for this purpose any indirect Losses sustained by the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who Beneficiary which may have an obligation to provide an indemnity in respect of any liability arising under be excluded by this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from being recovered from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnifier).
Appears in 1 contract
Samples: Ict Services Agreement
Conduct of Claims. In This paragraph 10 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Schedule, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". If the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Schedule ("Claim"), the Beneficiary shall give notice to the Indemnifier as soon as reasonably practicable and in any event within 10 Working Days of receipt of the same. Subject to paragraphs 10.4 and 10.5, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)paragraph 10.2 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a claimthe Claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf Claim in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnified own expense and take conduct of any defence, dispute, compromise, compromise or appeal of the claim Claim and of any incidental negotiations; provided that negotiations relating to the person entitled Claim. If the Indemnifier does elect to indemnification conduct the Claim, the Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;
(b) with Claim and, subject to paragraph 10.5 below, the Beneficiary shall not make any admission which could be prejudicial to the defence or settlement of the Claim without the prior written consent of the Indemnifier. With respect to any claim Claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) paragraph 10.3 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) Claim; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) the Supplier Indemnifier shall not pay or settle such claims Claim without the prior written consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person ; and the Indemnifier shall conduct the Claim with all due diligence. The Beneficiary shall be entitled to indemnification have conduct of the Claim and shall be free to pay or settle any claim Claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim Claim in accordance with Section 11.3(a)paragraph 10.3 above; or
(ii) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant Claim within 10 Working Days of the notice from the Beneficiary under paragraph 10.2 above or if the Indemnifier notifies the Beneficiary that it does not intend to take conduct of the Claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) paragraph 10.4 above. With respect to any Claim for which the Commissioner or 11.3(bthe Consultant or the Consultant Party are the Beneficiary and the conduct of which the Commissioner or Consultant acting reasonably, considers is likely to have an adverse impact on the general public's perception of the Commissioner or the Consultant or the Consultant Party ("Sensitive Claim");
(d) , the person Indemnifier shall only be entitled to indemnification pursuant take conduct of any defence, dispute, compromise or appeal of the Sensitive Claim with the Beneficiary's prior written consent. If the Beneficiary withholds such consent and elects to ARTICLE 11 conduct the defence, dispute, compromise or appeal of the Sensitive Claim itself, it shall conduct the Sensitive Claim with all due diligence and if any failure to do so results in an increase in the amount recoverable by the Beneficiary in respect of an indemnity under this Agreement, the Indemnifier shall only be liable to indemnify the Beneficiary in respect of that amount which would have been recoverable by the Beneficiary had it conducted the Sensitive Claim with all due diligence. The Beneficiary shall be free at any time to give written notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defenceClaim, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) appliesparagraph 10.3 above applies notwithstanding that it does not have the right to do so pursuant to paragraph 10.3 if, in the reasonable opinion of the Beneficiary the Claim is, or has become, a Sensitive Claim. On receipt of In such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnitycases, the person entitled to indemnification provisions of paragraph 10.6 above shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterapply.
Appears in 1 contract
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)) below, where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f)); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):) above:
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a)) above; or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or and 11.3(b)) above;
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) above applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 1 contract
Samples: Standing Offer Agreement for Lease/Rental of Heavy Duty Equipment
Conduct of Claims. In This Clause 36.3 (Conduct of Claims) shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". Accordingly: if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become, entitled to indemnification under this Agreement, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within twenty (20) Business Days of receipt of the same; subject to Clauses 36.3.3, 36.3.4 and 36.3.5 below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 36.3.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco‑operation, access and assistance for the purposes of considering and resisting such claim;
(b) ; with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) Clause 36.3.2 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) and the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification ; the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 36.3.3 above; or
or the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (ii20) Business Days of the Supplier notice from the Beneficiary under Clause 36.3.3 above or notifies the Beneficiary that it does not intend to take conduct of the claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) Clause 36.3.3 above; the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) Clause 36.3.3 above applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- operationco‑operation, access and assistance for the purposes of considering and resisting such claim;
. If the Beneficiary gives any notice pursuant to this Clause 36.3.5 then the Indemnifier shall be released from any liability under its indemnity under Clause 36.1 (ehubco Indemnities to Authority) or Clause 36.2 (Authority Indemnities to hubco) (as the case may be) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to Clause 36.3.3 in respect of such claim; if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) of:- an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket out‑of‑pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that that: there shall be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss sustained by the Beneficiary (including for this purpose indirect or consequential losses or claims for loss of profits which are excluded by this Agreement from being recovered from the Indemnifier); and any person entitled taking any of the steps contemplated by Clauses 36.1 to indemnification;
(f) the Supplier 36.3.5 shall inform the person entitled to indemnification of comply with the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement. To avoid doubt the provisions of Clause 44 (Mitigation) apply to any indemnity given under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterindemnity shall not apply to the extent that such part or parts of Direct Losses could have been reduced or avoided by the Beneficiary complying with the provisions of such Clause 44 (Mitigation).
Appears in 1 contract
Samples: Build Only Development Agreement
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 1 contract
Samples: Supply Agreement
Conduct of Claims. In 9.1 If anything comes to the event notice of the Purchasers by reason or in consequence of which the Seller may be liable to make payment to the Purchasers pursuant to this Agreement under the Warranties or clause 6:
9.1.1 the Purchasers shall procure that notice of such claim is given to the Seller within a period of 20 Business Days following any Purchaser becoming aware of such matter;
9.1.2 without prejudice to the validity of the claim or alleged claim in question, the Purchasers shall give all such material information and assistance, subject to being given reasonable notice and being paid all reasonable costs and expenses and subject to any existing confidentiality obligations of the Purchasers, access to premises and personnel and the right to examine and copy or photograph any assets, accounts, documents and records, as the Seller or its accountants or professional advisers may reasonably request and shall keep the Seller informed of any claimsdevelopments, statutory feesor documents received, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses in relation to such claim or fines being levied alleged claim; and
9.1.3 where the claim in question is as a result of or claimed from in connection with a person in respect of which an indemnity is provided claim by the Supplier pursuant or liability to ARTICLE 11a third party, the following provisions shall applyPurchasers:
(a) subject to Sections 11.3(b)shall not make (or, 11.3(c) and 11.3(d)as appropriate, where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided procure that the person entitled to indemnification Company shall give the Supplier (provided at the Supplier’s costnot make) all reasonable cooperationany admission of liability, access and assistance for the purposes of considering and resisting such claim;
(b) agreement or compromise with respect any person, body or authority in relation to any such third party claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, Seller (such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(db) at their own discretion and upon receipt of a written request from the Seller, shall allow (or, as appropriate, shall procure that the Company shall allow) the person entitled Seller to indemnification pursuant be placed in a position to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining take on or taking take over (as the case may be) the conduct of any defenceall proceedings, disputeappeals and/or negotiations of whatsoever nature arising in connection with the claim in question, compromise or appeal of any claim (or of any incidental negotiations) subject to which Section 11.3(a) applies. On receipt of such notice being fully indemnified on an after-Tax basis to its reasonable satisfaction by the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification Seller against all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the samewhich it incurs; and
(iic) the amount paid as a consequence of clause 9.1.3 shall, at their own discretion, give, subject to the person entitled to indemnification being given reasonable notice by the Supplier in respect or on behalf of the Seller and being paid all reasonable costs and expenses, all such information and assistance, including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records, for the purpose of avoiding, disputing, denying, defending, resisting, appealing, compromising or contesting any such claim under or liability as the relevant indemnitySeller or its professional advisers reasonably request, provided that there shall be no obligation on the part subject to any existing confidentiality obligations of the person entitled Purchasers. The Seller agrees to indemnification to pursue keep all such recovery information confidential and that the Supplier is repaid only to the extent that the amount of use it for such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterpurpose.
Appears in 1 contract
Conduct of Claims. In the event 8.6.1 If either Purchaser becomes aware of any claimsmatter that may give rise to a claim against EFPL under the Transaction Documents, statutory fees, costs, charges, penalties notice of that fact (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) together with details of the liability arising out matter in question as are available) shall be given within 10 Business Days to EFPL.
8.6.2 Without prejudice to the validity of a claim, such person entitled to indemnification may at its sole election and subject tothe claim or alleged claim in question:
(i) approval by each Purchaser shall allow, and shall procure that any relevant insurers (without prejudice member of its Group allows, EFPL and its duly authorised agents to Section 11.3(f)investigate the matter or circumstance alleged to give rise to such claim and whether and to what extent any amount is payable in respect of such claim; and
(ii) in connection with the Supplier providing the party entitled actions referred to indemnification with a secured indemnity to in Clause 8.6.2(i), each Purchaser shall (at its reasonable satisfaction against all costs and expenses (including legal expensesown expense) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromisemake, or appeal procure to be made, available to EFPL or its duly authorised agents on reasonable notice during normal business hours all relevant books of account, records and correspondence relating to the claim Business (and shall permit EFPL to take copies of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s costthose documents) all reasonable cooperation, access and assistance for the purposes of considering and resisting such enabling EFPL to ascertain or extract any information relevant to the claim;, save always that neither Purchaser shall be required to make available or provide copies of commercially confidential or legally privileged books of account, records, correspondence or other information.
8.6.3 If the claim in question is a result of or in connection with a claim by or liability to a third party (bincluding a Taxation Authority or in respect of Taxation) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):then:
(i) no admission of liability shall be made by or on behalf of a Purchaser or any member of its Group and the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier claim shall not bring be compromised, disposed of or settled and no matter which may affect the name outcome of the person entitled any dispute or negotiation with any Taxation Authority in relation to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier a claim for Taxation shall not pay or settle such claims be agreed, in each case without the prior written consent of the person entitled to indemnification, EFPL such consent not to be unreasonably withheld or delayeddelayed where the relevant Purchaser is required to comply with an order, regulatory award or ruling of any Competent Authority;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) EFPL shall be entitled in its absolute discretion to take such action as it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, postpone, settle, compromise or contest such claim or liability or any adjudication in respect of such claim (including making counterclaims or other claims against third parties) in the Supplier fails to comply in any material respect with name of and on behalf of the provisions Purchasers (or either of Sections 11.3(athem) or 11.3(b);
(d) any member of the person entitled Purchasers' Group concerned and to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) have the conduct of any defencerelated proceedings, dispute, compromise negotiations or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the sameappeals; and
(iiiii) each Purchaser shall, and will procure that any relevant member of its Group shall, take all such action and give all such information, documentation and assistance, including access to premises and personnel, copies of any relevant correspondence and the amount paid right to examine and copy or photograph any assets, accounts, documents, books and records, for the person entitled to indemnification by the Supplier in respect purpose of the claim under the relevant indemnityavoiding, provided disputing, denying, defending, resisting, appealing, postponing, settling, compromising or contesting any such claim, liability or adjudication as EFPL or its professional advisers request save always that there neither Purchaser shall be no obligation on the part required to make available or provide copies of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount commercially confidential or legally privileged books of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any lossaccount, damage records, correspondence or liability that it may suffer in respect of any such matterother information.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Edison Mission Energy)
Conduct of Claims. In 7.1 Subject to the event provisions of Clauses 7.2 to 7.4 (inclusive), to the fullest extent permitted by law, the Company shall be entitled (but shall not be obliged), at its own cost, and to the extent it so wishes, to take actions on behalf of the Officer and to direct the conduct of the Officer in the defence of any claimsClaims.
7.2 Without prejudice to the generality of the foregoing Clause 7.1, statutory fees, costs, charges, penalties and subject to the provisions of sub-clauses (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect a) and (b) of which an indemnity is provided by the Supplier pursuant to ARTICLE 11this Clause 7.2, the following provisions Company shall applybe entitled, at its own expense, to engage legal counsel (“Nominated Counsel”) to defend a Claim on behalf of a Officer provided that:
(a) subject the Officer shall have the right to Sections 11.3(b), 11.3(crefuse the engagement of Nominated Counsel to defend the Claim on his behalf and to engage his own legal counsel (“Personal Counsel”) in defending a Claim; and
(b) in the instance that the Officer refuses the engagement of Nominated Counsel to defend the Claim on his behalf and 11.3(d), where it appears that a person is or may be entitled instead elects to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject toengage Personal Counsel:
(i) approval all costs and expenses related to the engagement of Personal Counsel (“Personal Counsel Costs”) shall be paid by any relevant insurers (without prejudice to Section 11.3(f)the Officer at his own expense; and
(ii) the Supplier providing Company shall be under no obligation under any provision of this Deed to indemnify the party Officer in respect of Personal Counsel Costs unless:
(A) the Officer’s engagement of Personal Counsel has been authorized by the Company; or
(B) the Officer has reasonably determined that there may be a conflict of interest between the Officer and the Company in the defence of a Claim, in which case then the Officer shall be entitled to indemnification engage Personal Counsel (but not more than one law firm plus, if applicable, local counsel in respect of any such Claim) and the Officer shall be indemnified for costs incurred in connection therewith in accordance with a secured indemnity the provisions of Clause 4.
7.3 In the instance that Nominated Counsel is engaged to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require defend the Supplier to dispute the claim Claim on behalf of the person entitled Officer:
(a) the Company shall not be liable to indemnification at the SupplierOfficer under this Deed or otherwise for any legal expenses subsequently directly incurred by the Officer in connection with the Officer’s own expense and take conduct defence of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiationssuch Claim; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;and
(b) with respect the Officer shall be liable to the Company for any claim conducted amounts paid by the Supplier pursuant Company to Section 11.3(a):Nominated Counsel:
(i) in defending criminal proceedings in which the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;Officer is convicted; or
(ii) in defending civil proceedings brought by the Supplier shall not bring the name of the person entitled to indemnification (company or any Group Member thereof) into disreputean associated company in which judgment is given against him; andor
(iii) in connection with an application for relief which is refused, and any such amounts shall fall to be repaid not later than:
(iv) in the Supplier event of the Officer being convicted in the proceedings, the date when the conviction becomes final; or
(v) in the event of judgment being given against the Officer in the proceedings, the date when the judgment becomes final; or
(vi) in the event of the Court refusing to grant the Officer relief on the application, the date when the refusal of relief becomes final. References in this Clause 7.3 to a conviction, judgment or refusal of relief being ‘final’ shall be construed in accordance with section 234(5) of the Act.
7.4 The Officer shall not pay (irrespective of whether Nominated Counsel or settle such claims Personal Counsel is engaged to defend the Claim on his behalf) without the prior written consent of the person entitled to indemnification, Company (such consent not to be unreasonably withheld or delayed):
(a) take any action that can be reasonably expected to have a material impact on the outcome of a Claim;
(b) agree any compromise or settlement in relation to a Claim; or
(c) a person entitled to indemnification shall be free to pay or settle make any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and payment in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such mattera Claim.
Appears in 1 contract
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)) below, where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f)); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):) above:
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a)) above; or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or and 11.3(b)) above;
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 1 contract
Samples: Standing Offer Agreement
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) : subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) : approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) and the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) ; with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) ): the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) and the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) ; a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) : the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) or the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) ; the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim;
(e) ; if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) : an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) ; the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) and any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 1 contract
Samples: Supply Agreement
Conduct of Claims. In the event of If any claimsaction, statutory feesproceeding, costs, charges, penalties claim or demand (including without limitation "Proceedings") shall be brought or asserted against any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person Manager in respect of which an indemnity is provided may be sought from the Issuer and the Guarantor as contemplated in sub-clause 6.1, such Manager shall promptly notify the Issuer and the Guarantor in writing thereof. The Issuer and the Guarantor, acting jointly, may elect to assume the defence of such Proceedings in which case they shall retain reputable lawyers approved by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
relevant Manager (a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
) in each relevant jurisdiction, if more than one, and shall be liable to pay the fees and expenses of such lawyers relating to such Proceedings (c) a person provided, however, that the Issuer and the Guarantor, acting jointly, shall not be entitled to indemnification so assume the defence, if at the time of such election, any of the events specified in Condition 8(a)(iv) to (viii) or (xi) (Events of Default) have occurred or are continuing). In any Proceedings with respect to which the Issuer and the Guarantor, acting jointly, have elected to assume the defence of any Proceedings, the relevant Manager shall have the right to retain its own lawyers in each relevant jurisdiction, if more than one, and to participate fully in the defence of such Proceedings (and in any event shall be free to pay or settle any claim on kept informed and consulted in detail about the defence of such terms as it thinks fit (proceedings) but the fees and without prejudice to its rights and remedies under this Agreement) ifexpenses of such lawyers shall be at the expense of such Manager unless:
(i) 6.2.1 the Supplier is not entitled to, or is not permitted or instructed, take conduct Issuer and the Guarantor and such Manager shall have mutually agreed to the retention of the claim in accordance with Section 11.3(a)such lawyers; or
6.2.2 the named parties to any such Proceedings (iiincluding any joined parties) include the Supplier fails Issuer and the Guarantor and such Manager and representation of the Issuer and the Guarantor and such Manager by the same lawyers (in the relevant jurisdiction, in the discretion of such Manager), would be inappropriate due to comply actual or potential differing interests between them or actual or potential differing defences available to them; or
6.2.3 the Issuer and the Guarantor have failed to retain reputable lawyers approved by such Manager (such approval not to be unreasonably withheld or delayed) in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification relevant jurisdiction pursuant to ARTICLE 11 its obligation to do so under this Clause 6.2. The Issuer and the Guarantor, acting jointly, will not settle any Proceedings without the written consent of the relevant Manager. Nothing herein shall be free at any time affect the position of the parties hereto pursuant to give notice Clause 6.1 in the event that the Issuers and the Guarantor, acting jointly, do not elect to assume the Supplier that it is retaining or taking over (as the case may be) the conduct defence of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterProceedings.
Appears in 1 contract
Conduct of Claims. In This clause 26.2 shall apply to the event conduct, of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which either party where an indemnity is provided sought under this Contract from the other party, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the Beneficiary and the party giving the indemnity is referred to as the Indemnifier. Accordingly: if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Contract, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable having regard to any timescale imposed by a notice, demand, letter or any other form of document received by the Supplier Beneficiary; subject to clauses 26.2.4, 26.2.5 and 26.2.6, on the giving of a notice by the Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)clause 26.2.1, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) at least half of the liability arising out of a the claim, such person entitled the Indemnifier shall subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require action (over and above those which the Supplier Beneficiary would otherwise have borne if the Indemnifier had no entitlement to conduct the relevant claim) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco‑operation, access and assistance for the purposes of considering and resisting such claim;
(b) ; with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) clause 26.2.2: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) and the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification ; the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Contract if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)clause 26.2.2; or
(ii) or the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within 20 Business Days of the notice from the Beneficiary under clause 26.2.2 or notifies the Beneficiary that it does not intend to take conduct of the claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) clause 26.2.3; the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) clause 26.2.2 applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim;
. If the Beneficiary gives any notice pursuant to this clause 26.2.5 then the Indemnifier shall be released from any liability under its indemnity under clause 26.2 (eas the case may be) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to clause 26.2.2 in respect of such claim; if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) : an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-out of pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(ii) the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part ; and either party taking any of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated steps contemplated by clauses 26.2.2 – 26.2.5 shall comply with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterContract.
Appears in 1 contract
Samples: Agreement for the Provision of Care and Support Services
Conduct of Claims. (a) In the event of case any claims, statutory fees, costs, charges, penalties (including without limitation action shall be brought against any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person Indemnified Person in respect of which an indemnity is provided by recovery may be sought from the Supplier pursuant to ARTICLE 11Company under this Clause 6, the following provisions relevant Indemnified Person shall apply:promptly notify the Company in writing of such fact, but failure to do so will not relieve the Company from any liability under this Agreement and in any event shall not relieve it from any liability which it may have otherwise than on account of the indemnities contained in this Agreement.
(ab) Each Indemnified Person shall thereafter, subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) any requirement imposed by an insurer of the liability arising out of a claim, such person entitled Indemnified Person and to indemnification may at its sole election and subject tothe extent permitted by applicable law or regulation:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) at reasonable intervals keep the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf Company informed of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct progress of the claim;
(ii) provide the Supplier shall not bring Company with copies of such documentation relating to the name of the person entitled to indemnification (or any Group Member thereof) into disreputeclaim as it may reasonably request; and
(iii) maintain reasonable consultation with the Supplier shall not pay or settle such claims without Company regarding decisions concerning the prior consent of claim, subject in each case to the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (Indemnified Person being indemnified and without prejudice secured to its rights reasonable satisfaction against all Losses incurred by it in consequence of its compliance with this Clause 6, and remedies under provided that nothing in this Agreement) ifClause 6 shall:
(i) require any Indemnified Person to provide the Supplier is not entitled toCompany with a copy of any document which it, in good faith, considers to be held by it subject to a duty of confidentiality or is not permitted or instructed, take conduct to be privileged whether in the context of any litigation connected with the claim in accordance with Section 11.3(a)or otherwise; or
(iiiv) require an Indemnified Person to do, or refrain from doing, anything which would, or which the Supplier fails Company considers might, either prejudice any insurance cover to comply which it or any other Indemnified Person may from time to time be entitled, or from which it or any of them may benefit or which may prejudice the reputation or standing of such Indemnified Person or of any other Indemnified Person.
(c) The Company may participate at its own expense in the defence of any material respect such action; provided, however, that legal advisers to the Company shall not (except with the provisions consent of Sections 11.3(athe relevant Indemnified Person) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall also be free at any time to give notice legal advisers to the Supplier that it is retaining Indemnified Person. The Company shall not, without the prior written consent of the relevant Indemnified Person, settle or taking over (as compromise or consent to the case may be) the conduct entry of any defencejudgment with respect to any litigation, disputeor any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification could be sought under this Clause 6 (whether or not the Indemnified Person(s) are actual or potential parties thereto), unless such settlement, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser ofconsent:
(i) includes an amount equal to the sum recovered (unconditional release of each Indemnified Person from all liability arising out of such litigation, investigation, proceeding or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the sameclaim; and
(ii) the amount paid does not include a statement as to the person entitled or an admission of fault, culpability or a failure to indemnification act by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation or on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements behalf of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnified Person.
Appears in 1 contract
Samples: Bond Agreement (Renalytix PLC)
Conduct of Claims. In This Clause 49.3 (Conduct of Claims) shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". Accordingly: if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become, entitled to indemnification under this Agreement, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within twenty (20) Business Days of receipt of the same; subject to Clauses 49.3.3, 49.3.4 and 49.3.5 below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 49.3.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco operation, access and assistance for the purposes of considering and resisting such claim;
(b) ; with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) Clause 49.3.2 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) and the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification ; the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 49.3.2 above; or
or the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (ii20) Business Days of the Supplier notice from the Beneficiary under Clause 49.3.1 above or notifies the Beneficiary that it does not intend to take conduct of the claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) Clause 49.3.3 above; the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) Clause 49.3.2 above applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- co operation, access and assistance for the purposes of considering and resisting such claim;
. If the Beneficiary gives any notice pursuant to this Clause 49.3.5, then the Indemnifier shall be released from any liability under its indemnity under Clause 49.1 (eProject Co Indemnities to Authority) or Clause 49.2 (Authority Indemnities to Project Co) (as the case may be) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to Clause 49.3.2 in respect of such claim; if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) : an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-out of pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss sustained by the Beneficiary (including for this purpose indirect or consequential losses or claims for loss of profits which are excluded by this Agreement from being recovered from the Indemnifier); and any person entitled taking any of the steps contemplated by Clauses 49.3.1 to indemnification;
(f) the Supplier 49.3.5 shall inform the person entitled to indemnification of comply with the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement. To avoid doubt the provisions of Clause 59 (Mitigation) apply to any indemnity given under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterindemnity shall not apply to the extent that such part or parts of Direct Losses could have been reduced or avoided by the Beneficiary complying with the provisions of such Clause 59 (Mitigation).
Appears in 1 contract
Samples: Project Agreement
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject This Section 56.3 shall apply to the conduct of claims, made by a third person against a Party having, or claiming to have, the benefit of an indemnity pursuant to this Project Agreement. The Party having, or claiming to have, the benefit of the indemnity is referred to as the “Beneficiary” and the Party giving the indemnity is referred to as the “Indemnifier”.
(b) If the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Section 56, the Beneficiary shall give written notice to the Indemnifier as soon as reasonably practicable and in any event within 10 Business Days of receipt of the same. Such notice shall specify with reasonable particularity, to the extent that information is available, the factual basis for the claim and the amount of the claim.
(c) Subject to Sections 11.3(b56.3(d), 11.3(c56.3(e) and 11.3(d56.3(f), on the giving of such notice by the Beneficiary, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (all, but not part only) , of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its the Beneficiary’s reasonable satisfaction against all costs and expenses (including legal expenses) that it the Beneficiary may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the SupplierIndemnifier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;. The Beneficiary shall have the right to employ separate counsel in respect of such claim and the reasonable fees and expenses of such counsel shall be to the account of the Indemnifier only where representation of both the Indemnifier and Beneficiary by common counsel would be inappropriate due to any actual or potential conflicting interests between the Indemnifier and Beneficiary.
(bd) with With respect to any claim conducted by the Supplier pursuant to Section 11.3(a):Indemnifier:
(i) the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier Indemnifier shall not bring the name or reputation of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; andAmended and Restated Project Agreement Ottawa Light Rail Transit Project REDACTED Execution Version CONFIDENTIAL AND PROPRIETARY Page 204 CAN: 26350049.2 BD-#30398459-v2
(iii) the Supplier Indemnifier shall not pay pay, compromise or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(civ) the Indemnifier shall not admit liability or fault to any third party without the prior consent of the Beneficiary, such consent not to be unreasonably withheld or delayed; and
(v) the Indemnifier shall use commercially reasonable efforts to have the Beneficiary named as a person entitled beneficiary under any release given by the persons bringing the claim to indemnification which this Section 56.3 relates.
(e) The Beneficiary shall be free to pay or settle any such claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Project Agreement if:
(i) the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a56.3(c); or;
(ii) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within 10 Business Days of the notice from the Beneficiary under Section 56.3(b) or notifies the Beneficiary that the Indemnifier does not intend to take conduct of the claim; or
(iii) the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(bSection 56.3(d);.
(df) the person entitled to indemnification pursuant to ARTICLE 11 The Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it the Beneficiary is retaining or taking over (over, as the case may be) , the conduct of any defence, dispute, compromise or appeal of any claim (claim, or of any incidental negotiations) , to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.which
Appears in 1 contract
Samples: Project Agreement
Conduct of Claims. In 15.1.1. This clause 15.1 shall apply to the event of any claims, statutory fees, costs, charges, penalties conduct by a Party from whom an indemnity is sought under this Agreement (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person "the Indemnifier") in respect of which an claims made by a third person against a Party having or claiming to have the benefit of the indemnity is provided ("the Beneficiary") and conduct by the Supplier pursuant Beneficiary in respect of such claims, but shall apply only to ARTICLE 11the extent compatible with the requirements of any relevant insurer.
15.1.2. If the Beneficiary receives any notice, the following provisions shall apply:
(a) subject to Sections 11.3(b)demand, 11.3(c) and 11.3(d), where letter or other document concerning any claim for which it appears that a person is the Beneficiaryis or may be become entitled to indemnification from under this Agreement the Supplier Beneficiary shall give notice in respect of all writing to the Indemnifier within ten (but not part only10) Working Days of the liability arising out receipt by the Beneficiary of a claimsuch notice, such person demand, letter or other document.
15.1.3. Subject to clauses 15.1.2, 15.1.4, 15.1.6 and 15.1.8 and the giving of notice by the Beneficiary, the Indemnifier shall be entitled (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it the Beneficiary may incur by reason of such action, permit or require action within ten (10) Working Days of the Supplier receipt of such notice from the Beneficiary by the Indemnifier) to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring in the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (Beneficiary and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any the claim (or and of any incidental negotiations) . If the Indemnifier so elects to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationclaim, and the Beneficiary shall provide to give the person entitled to indemnification Indemnifier all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such the claim;.
(e) 15.1.4. With respect to any claim conducted by the Indemnifier, the Indemnifier shall keep the Beneficiary fully informed and consult with it about all material elements of the conduct of the claim and shall not bring the name of the Beneficiary into disrepute.
15.1.5. If the Indemnifier does not elect under clause 15.1.3 to take conduct of a claim or if the Supplier Indemnifier and the Beneficiary at any time agree that the Beneficiary should henceforth have conduct of the claim, then the Beneficiary shall be entitled to conduct the claim and to resist, appeal, compromise or settle the claim. With respect to any claim conducted by the Beneficiary, the Beneficiary shall keep the Indemnifier fully informed and consult with it about all material elements of the claim.
15.1.6. Any Party who is under an obligation to consult with another Party under clause 15.1.4 or clause 15.1.5 shall have regard in good faith to any views expressed by the other Party.
15.1.7. If the Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matterevent, event matter or circumstances giving rise raise to the claim under the indemnity, then the person entitled to indemnification Beneficiary shall forthwith repay pay to the Supplier Indemnifier whichever is the lesser of:
(i) an of the amount equal to paid by the Indemnifier or the sum recovered (or by the value Beneficiary.
15.1.8. Any Party taking any of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled steps mentioned in clauses 15.1.1 to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there 15.1.7 shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated comply with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer insurer, who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such of the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnifier.
Appears in 1 contract
Samples: Delegation Agreement
Conduct of Claims. In This Clause 36.3 (Conduct of Claims) shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". Accordingly: if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become, entitled to indemnification under this Agreement, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within twenty (20) Business Days of receipt of the same; subject to Clauses 36.3.3, 36.3.4 and 36.3.5 below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 36.3.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco‑operation, access and assistance for the purposes of considering and resisting such claim;
(b) ; with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) Clause 36.3.2 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) and the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification ; the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 36.3.3 above; or
or the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (ii20) Business Days of the Supplier notice from the Beneficiary under Clause 36.3.3 above or notifies the Beneficiary that it does not intend to take conduct of the claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) Clause 36.3.3 above; the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) Clause 36.3.3 above applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- operationco‑operation, access and assistance for the purposes of considering and resisting such claim;
. If the Beneficiary gives any notice pursuant to this Clause 36.3.5 then the Indemnifier shall be released from any liability under its indemnity under Clause 36.1 (ehubco Indemnities to Authority) or Clause 36.2 (Authority Indemnities to hubco) (as the case may be) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to Clause 36.3.3 in respect of such claim; if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) of:- an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket out‑of‑pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.that:
Appears in 1 contract
Conduct of Claims. In This clause 26.2 shall apply to the event conduct, of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which either party where an indemnity is provided sought under this Contract from the other party, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the Beneficiary and the party giving the indemnity is referred to as the Indemnifier. Accordingly:
26.2.1 if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Contract, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable having regard to any timescale imposed by a notice, demand, letter or any other form of document received by the Supplier Beneficiary;
26.2.2 subject to clauses 26.2.4, 26.2.5 and 26.2.6, on the giving of a notice by the Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)clause 26.2.1, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) at least half of the liability arising out of a the claim, such person entitled the Indemnifier shall subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require action (over and above those which the Supplier Beneficiary would otherwise have borne if the Indemnifier had no entitlement to conduct the relevant claim) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;
(b) 26.2.3 with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):clause 26.2.2:
(ia) the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(iib) the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iiic) the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification 26.2.4 the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Contract if:
(ia) the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)clause 26.2.2; or
(iib) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within 20 Business Days of the notice from the Beneficiary under clause 26.2.2 or notifies the Beneficiary that it does not intend to take conduct of the claim; or
(c) the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b)clause 26.2.3;
(d) 26.2.5 the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) clause 26.2.2 applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim. If the Beneficiary gives any notice pursuant to this clause 26.2.5 then the Indemnifier shall be released from any liability under its indemnity under clause 26.2 (as the case may be) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to clause 26.2.2 in respect of such claim;
(e) 26.2.6 if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(ia) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-out of pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and;
(iib) the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part ; and
26.2.7 either party taking any of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated steps contemplated by clauses 26.2.2 – 26.2.5 shall comply with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterContract.
Appears in 1 contract
Samples: Agreement for the Provision of Integrated Sexual Health and Hiv Services
Conduct of Claims. In Any Indemnified Person shall, promptly after the event receipt of notice of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses action or fines being levied or claimed from a person claim against such Indemnified Person in respect of which an indemnity is provided by the Supplier indemnification may be sought pursuant to ARTICLE 11this Section 10.1, notify the following provisions shall apply:
other Participant(s) from whom it seeks indemnity (a) subject to Sections 11.3(b"Indemnifying Participant(s), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only") of such action or claim. The Indemnifying Participant(s) shall not be obligated to indemnify the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(bIndemnified Person(s) with respect to any such action or claim conducted if the Indemnified Person(s) fails to notify the Indemnifying Participant(s) thereof in accordance with the provisions of this Section 10.1.2 in sufficient time to permit the Indemnifying Participant(s) to defend against such matter and to make a timely response thereto, including any responsive motion or answer to a complaint, petition, notice or other legal, equitable or administrative process relating to the action or claim, but only insofar as such failure to notify the Indemnifying Participant(s) has actually resulted in material prejudice or damage to the Indemnifying Participant(s). In case any such action or claim shall be made or brought against the Indemnified Person(s), the Indemnifying Participant(s) may, or if so requested by the Supplier pursuant Indemnified Person(s) shall, assume the defense thereof with counsel of its selection reasonably acceptable to Section 11.3(a):
the Indemnified Person(s) and reasonably competent and experienced to defend the Indemnified Person(s). In such circumstances, the Indemnified Person(s) shall (ia) at no cost or expense to the Indemnified Person(s), cooperate with the Indemnifying Participant(s) and provide the Indemnifying Participant(s) with such information and assistance as the Indemnifying Participant(s) shall reasonably request in connection with such action or claim and (b) at its own expense, have the right to participate and be represented by counsel of its own choice in any such action or with respect to any such claim. If the Indemnifying Participant(s) has assumed and has reasonably maintained the defense of the relevant claim or action, (y) the Supplier Indemnifying Participant(s) shall keep the person entitled to indemnification fully informed not be liable for any settlement thereof that is made without its consent and consult with it about material elements of the conduct of the claim;
(iiz) the Supplier Indemnifying Participant(s) shall control the settlement of such claim or action, provided, however, that the Indemnifying Participant(s) shall not bring conclude any settlement that requires any action or forbearance from action or payment (unless paid in full by the name of Indemnifying Participant) or admission by the person entitled to indemnification (Indemnified Person(s) or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims of its Affiliates without the prior approval of the Indemnified Person(s). The obligations of an Indemnifying Participant(s) shall not extend to any loss, damage or expense of whatever kind and nature (including all related costs and expenses) to the extent the same results from the taking, after the receipt of notice of such legal action or claim against the Indemnified Person(s), and after the Indemnifying Participant has assumed and is maintaining the defense of such action in accordance with this Section 10.1.2 by the Indemnified Person(s) of any action (unless required by Applicable Law or applicable legal process) which prejudices the successful defense of the action or claim, without, in any such case, the prior written consent of the person entitled to indemnification, Indemnifying Participant(s) (such consent not to be unreasonably withheld required in a case where the Indemnifying Participant(s) has not assumed or delayed;
(chas assumed but has not reasonably maintained the defense of the action or claim). The Indemnified Person(s) a person entitled agrees to indemnification shall afford the Indemnifying Participant(s) or the counsel of the Indemnifying Participant(s) the opportunity to be free present at, and to pay or settle participate in, conferences with all Persons, including Government Authorities, asserting any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreementor action against the Indemnified Person(s) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred covered by the person entitled to indemnification indemnity contained in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect this Section 10.1 or conferences with representatives of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue or counsel for such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterPerson(s).
Appears in 1 contract
Samples: Participation Agreement
Conduct of Claims. In This sub‑clause shall apply to the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed conduct by a party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". Accordingly: if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become, entitled to indemnification under this Agreement, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within twenty (20) Business Days of receipt of the same; subject to Clauses 16.3.3, 16.3.4 and 16.3.5 below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 16.3.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;
(b) ; with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) Clause 16.3.2 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) and the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification ; the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 16.3.2 above; or
or the Indemnifier fails to notify the Beneficiary in writing of its intention to take conduct of the relevant claim within twenty (ii20) Business Days of the Supplier notice from the Beneficiary under Clause 16.3.1 above or notifies the Beneficiary in writing that it does not intend to take conduct of the claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) Clause 16.3.3 above; the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice in writing to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) Clause 16.3.2 applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- co operation, access and assistance for the purposes of considering and resisting such claim;
. If the Beneficiary gives any notice in writing pursuant to this paragraph, then the Indemnifier shall be released from any liability under its indemnity under Clause 16.1 or Clause 16.2 (eas the case may be) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to Clause 16.3.2 in respect of such claim; if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) : an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-out of pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that PROVIDED THAT there shall be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier is Indemnifier shall be repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss sustained by the person entitled to indemnification;
Beneficiary (f) the Supplier shall inform the person entitled to indemnification including for this purpose indirect or consequential losses or claims for loss of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under profits which are excluded by this Agreement and in relation to such from being recovered from the person entitled to indemnification shall issue instructions accordinglyIndemnifier); and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 1 contract
Samples: Territory Partnering Agreement
Conduct of Claims. In This Clause 63 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a Party from a person in respect of which whom an indemnity is provided sought under this Contract, of claims made by a third person against a Party having (or claiming to have) the benefit of the indemnity. The Party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the Party giving the indemnity is referred to as the "Indemnifier". Accordingly:
63.1.1 if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Contract and any of the Ancillary Documents, or in relation to involvement in any investigation or proceedings by any auditor, inspector or ombudsman, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable together with such further information and documentation he or she may require and in any event within twenty (20) Business Days of receipt of the same;
63.1.2 subject to Clauses 63.1.3, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 63.1.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured sufficient indemnity to its reasonable satisfaction against all costs costs, charges and expenses (including legal expenses) , actions, demands, proceedings, claims whatsoever that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) 63.1.3 with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):Clause 63.1.2 above:
(ia) the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(iib) the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iiic) the Supplier Indemnifier shall not pay or settle such claims without the prior written consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
63.1.4 the Beneficiary shall (cwithout prejudice to its duty to mitigate) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Contract if:
(ia) the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 63.1.2 above; or
(iib) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (20) Business Days of the notice from the Beneficiary under Clause 63.1.1 above or notifies the Beneficiary that it does not intend to take conduct of the claim; or
(c) the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(aClause 63.1.3 above within twenty (20) or 11.3(b);Business Days of notice from the Beneficiary.
(d) 63.1.5 the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) Clause 63.1.2 above applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim. If the Beneficiary gives any notice pursuant to this Clause 63.1.3(b), then the Indemnifier shall be released from any liability under its indemnity under Clause 61.1, Clause 61.2 or otherwise (as applicable) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to Clause 63.1.2 in respect of such claim;
(e) 63.1.6 if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(ia) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(iib) the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, indemnity provided that there shall be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss sustained by the Beneficiary (including for this purpose indirect or consequential losses or claims for loss of profits which are excluded by this Contract from being recovered from the Indemnifier); and
63.1.7 any person entitled to indemnification;
(f) taking any of the Supplier steps contemplated by this Clause 63.1 shall inform the person entitled to indemnification of comply with the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterContract.
Appears in 1 contract
Samples: Residual Waste Treatment Contract
Conduct of Claims. In 19.1 This clause 19.1 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a Party from a person in respect of which whom an indemnity is provided sought under this IAA, of claims made by a third person against a Party having (or claiming to have) the benefit of the indemnity. The Party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the Party giving the indemnity is referred to as the "Indemnifier". Accordingly:
19.1.1 if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this IAA, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable having regard to any timescale imposed by a notice, demand, letter or any other form of document received by the Supplier Beneficiary;
19.1.2 subject to clauses 19.1.3, 19.1.4 and 19.1.5 below, on the giving of a notice by the Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)clause 19.1.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) at least half of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require action (over and above those which the Supplier Beneficiary would otherwise have borne if the Indemnifier had no entitlement to conduct the relevant claim)) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays 19.1.3 with respect to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the any claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred conducted by the person entitled Indemnifier pursuant to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.clause
Appears in 1 contract
Samples: Inter Authority Agreement
Conduct of Claims. In This Clause 49.3 (Conduct of Claims) shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". Accordingly: if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become, entitled to indemnification under this Agreement, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within twenty (20) Business Days of receipt of the same; subject to Clauses 49.3.3, 49.3.4 and 49.3.5 below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 49.3.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco operation, access and assistance for the purposes of considering and resisting such claim;
(b) ; with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) Clause 49.3.2 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) and the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification ; the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 49.3.2 above; or
or the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (ii20) Business Days of the Supplier notice from the Beneficiary under Clause 49.3.1 above or notifies the Beneficiary that it does not intend to take conduct of the claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) Clause 49.3.3 above; the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) Clause 49.3.2 above applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- co operation, access and assistance for the purposes of considering and resisting such claim;
. If the Beneficiary gives any notice pursuant to this Clause 49.3.5, then the Indemnifier shall be released from any liability under its indemnity under Clause 49.1 (eDBFM Co Indemnities to Authority) or Clause 49.2 (Authority Indemnities to DBFM Co) (as the case may be) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to Clause 49.3.2 in respect of such claim; if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) : an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-out of pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.that:
Appears in 1 contract
Samples: Project Agreement
Conduct of Claims. In This Section 12.3 will apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the Supplier pursuant benefit of the indemnity. The party having, or claiming to ARTICLE 11have, the following provisions shall applybenefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". Accordingly:
(a) if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Agreement, the Beneficiary will give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within 5 Business Days of receipt thereof. Such notice will specify with reasonable particularity (to the extent that the information is available): (i) the factual basis for the claim, and (ii) the amount of the claim. If the Beneficiary fails to give such written notice to the Indemnifier, such failure will not preclude the Beneficiary from making a claim against the Indemnifier under this Section 12.3 but the Beneficiary's right to indemnification will be reduced to the extent that such delay prejudiced the defence of the claim or increased the amount of liability or the cost of the defence;
(b) subject to Sections 11.3(b12.3(c), 11.3(c12.3(d) and 11.3(d12.3(e), where on the giving of a notice by the Beneficiary pursuant to Section 12.3(a), if it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part onlyless than all) of the liability arising out of a the claim, such person entitled the Indemnifier will (upon notice to indemnification may at the Beneficiary within 30 days from its sole election receipt of the Beneficiary's notice referred to above and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall . The Beneficiary will give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;
(bc) with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a12.3(b):
(i1) the Supplier shall Indemnifier will keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii2) the Supplier shall Indemnifier will not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and;
(iii3) the Supplier shall Indemnifier will not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c4) a person entitled the Indemnifier will not admit liability or fault to indemnification shall any third party without the prior consent of the Beneficiary, such consent not to be unreasonably withheld or delayed; and
(5) the Indemnifier will use all reasonable efforts to have the Beneficiary named as beneficiary under any release given by the persons bringing the claim to which this Section 12.3 pertains and to have such release delivered to the Beneficiary;
(d) subject to Section 12.4, the Beneficiary will be free to pay pay, settle or settle defend any claim on such terms as it thinks fit (and and, without prejudice to its rights and remedies under this Agreement) , if:
(i1) the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a12.3(b); or
(ii2) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within 30 days of the Indemnifier's receipt of the notice from the Beneficiary referred to in Section 12.3(a) or notifies the Beneficiary that it does not intend to take conduct of the claim; or
(3) the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(bSection 12.3(c);
(de) with respect to any claim conducted by the Beneficiary pursuant to Section 12.3(d):
(1) the person entitled Beneficiary will keep the Indemnifier fully informed and consult with it about material elements of the conduct of the claim;
(2) the Beneficiary will not bring the name of the Indemnifier into disrepute;
(3) the Beneficiary will not pay or settle such claims without the prior consent of the Indemnifier, such consent not to indemnification pursuant be unreasonably withheld or delayed;
(4) the Beneficiary will not admit liability or fault to ARTICLE 11 shall any third party without the prior consent of the Indemnifier, such consent not to be free at any time to give notice unreasonably withheld or delayed;
(5) the Beneficiary will not disclose to the Supplier claimant the existence of the indemnity; and
(6) in the event that it the claimant is retaining aware of the indemnity (without the Beneficiary breaching Paragraph 12.3(e)(5)), the Beneficiary will use all reasonable efforts to have the Indemnifier named as beneficiary under any release given by the persons bringing the claim to which this Section 12.3(e) pertains and to have such release delivered to the Indemnifier;
(f) the Beneficiary may, with the prior consent of the Indemnifier (which consent may be unreasonably withheld), retain or taking take over (as the case may be) at any time the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a12.3(b) applies. On receipt of such notice If the Supplier shall Indemnifier consents to the Beneficiary retaining or taking over the claim (as the case may be), the Indemnifier will promptly take all steps (including the delivery to the Beneficiary of all relevant documentation) necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall will provide to the person entitled to indemnification Beneficiary all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim. If the Beneficiary retains or takes over any claim pursuant to this Section 12.3(f), then the Indemnifier will be released from any liability under its indemnity under Sections 12.1 or 12.2 (as the case may be) and, without prejudice to any accrued liabilities, any liability under its Indemnity given pursuant to Section 12.3(b) in respect of such claim;
(g) subject to Section 12.3(f), the Indemnifier will be free at any time to give notice to the Beneficiary that it is taking over the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which this Section 12.3 applies. Upon receipt of such notice, the Beneficiary will promptly take all steps (including the delivery to the Indemnifier of all relevant documentation) necessary to transfer the conduct of such claim to the Indemnifier, and will provide to the Indemnifier all reasonable co-operation, access and assistance for the purposes of considering and resisting such claim;
(eh) if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an any indemnity and the person entitled to indemnification Beneficiary subsequently recovers or receives (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum or anything else of value which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall Beneficiary will forthwith repay to the Supplier whichever is Indemnifier, with interest at the Default Interest Rate, the lesser of:
(i1) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the samesuch sum; and
(ii2) the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that there shall will be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss Direct Losses sustained by the person entitled to indemnification;Beneficiary; and
(fi) any person taking any of the Supplier shall inform the person entitled steps contemplated by Sections 12.3(a) to indemnification of 12.3(h) will comply with the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterAgreement.
Appears in 1 contract
Samples: Project Agreement
Conduct of Claims. In 7.1 Subject to the event provisions of Clauses 7.2 to 7.4 (inclusive), to the fullest extent permitted by law, the Company shall be entitled (but shall not be obliged), at its own cost, and to the extent it so wishes, to take actions on behalf of the Director and to direct the conduct of the Director in the defence of any claimsClaims.
7.2 Without prejudice to the generality of the foregoing Clause 7.1, statutory fees, costs, charges, penalties and subject to the provisions of sub-clauses (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect a) and (b) of which an indemnity is provided by the Supplier pursuant to ARTICLE 11this Clause 7.2, the following provisions Company shall applybe entitled, at its own expense, to engage legal counsel (“Nominated Counsel”) to defend a Claim on behalf of a Director provided that:
(a) subject the Director shall have the right to Sections 11.3(b), 11.3(crefuse the engagement of Nominated Counsel to defend the Claim on his or her behalf and to engage his own legal counsel (“Personal Counsel”) in defending a Claim; and
(b) in the instance that the Director refuses the engagement of Nominated Counsel to defend the Claim on his or her behalf and 11.3(d), where it appears that a person is or may be entitled instead elects to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject toengage Personal Counsel:
(i) approval all costs and expenses related to the engagement of Personal Counsel (“Personal Counsel Costs”) shall be paid by any relevant insurers (without prejudice to Section 11.3(f)the Director at his or her own expense; and
(ii) the Supplier providing Company shall be under no obligation under any provision of this Deed to indemnify the party Director in respect of Personal Counsel Costs unless:
(A) the Director’s engagement of Personal Counsel has been authorized by the Company; or
(B) the Director has reasonably determined that there may be a conflict of interest between the Director and the Company in the defence of a Claim, in which case then the Director shall be entitled to indemnification engage Personal Counsel (but not more than one law firm plus, if applicable, local counsel in respect of any such Claim) and the Director shall be indemnified for costs incurred in connection therewith in accordance with a secured indemnity the provisions of Clause 4.
7.3 In the instance that Nominated Counsel is engaged to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require defend the Supplier to dispute the claim Claim on behalf of the person entitled Director:
(a) the Company shall not be liable to indemnification at the SupplierDirector under this Deed or otherwise for any legal expenses subsequently directly incurred by the Director in connection with the Director’s own expense and take conduct defence of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiationssuch Claim; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;and
(b) with respect the Director shall be liable to the Company for any claim conducted amounts paid by the Supplier pursuant Company to Section 11.3(a):Nominated Counsel:
(i) in defending criminal proceedings in which the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;Director is convicted; or
(ii) in defending civil proceedings brought by the Supplier shall not bring the name of the person entitled to indemnification (company or any Group Member thereof) into disreputean associated company in which judgment is given against him or her; andor
(iii) in connection with an application for relief which is refused, and any such amounts shall fall to be repaid not later than:
(A) in the Supplier event of the Director being convicted in the proceedings, the date when the conviction becomes final; or
(B) in the event of judgment being given against the Director in the proceedings, the date when the judgment becomes final; or
(C) in the event of the Court refusing to grant the Director relief on the application, the date when the refusal of relief becomes final. References in this Clause 7.3 to a conviction, judgment or refusal of relief being ‘final’ shall be construed in accordance with section 234(5) of the Act.
7.4 The Director shall not pay (irrespective of whether Nominated Counsel or settle such claims Personal Counsel is engaged to defend the Claim on his behalf) without the prior written consent of the person entitled to indemnification, Company (such consent not to be unreasonably withheld or delayed):
(a) take any action that can be reasonably expected to have a material impact on the outcome of a Claim;
(b) agree any compromise or settlement in relation to a Claim; or
(c) a person entitled to indemnification shall be free to pay or settle make any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and payment in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such mattera Claim.
Appears in 1 contract
Conduct of Claims. In This Clause 36.3 (Conduct of Claims) shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". Accordingly: if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become, entitled to indemnification under this Agreement, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within twenty (20) Business Days of receipt of the same; subject to Clauses 36.3.3, 36.3.4 and 36.3.5 below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 36.3.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco‑operation, access and assistance for the purposes of considering and resisting such claim;
(b) ; with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) Clause 36.3.2 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) and the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification ; the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 36.3.3 above; or
or the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (ii20) Business Days of the Supplier notice from the Beneficiary under Clause 36.3.3 above or notifies the Beneficiary that it does not intend to take conduct of the claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) Clause 36.3.3 above; the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) Clause 36.3.3 above applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- operationco‑operation, access and assistance for the purposes of considering and resisting such claim;
. If the Beneficiary gives any notice pursuant to this Clause 36.3.5 then the Indemnifier shall be released from any liability under its indemnity under Clause 36.1 (ehubco Indemnities to Authority) or Clause 36.2 (Authority Indemnities to hubco) (as the case may be) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to Clause 36.3.3 in respect of such claim; if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) of:- an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket out‑of‑pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss sustained by the Beneficiary (including for this purpose indirect or consequential losses or claims for loss of profits which are excluded by this Agreement from being recovered from the Indemnifier); and any person entitled taking any of the steps contemplated by Clauses 36.1 to indemnification;
(f) the Supplier 36.3.5 shall inform the person entitled to indemnification of comply with the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement. To avoid doubt the provisions of Clause 44 (Mitigation) apply to any indemnity given under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterindemnity shall not apply to the extent that such part or parts of Direct Losses could have been reduced or avoided by the Beneficiary complying with the provisions of such Clause 44 (Mitigation).
Appears in 1 contract
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) If any Indemnified Person receives notification of the commencement of any Claim relevant for the purposes of this Clause 12, such Indemnified Person shall, insofar as may be consistent with the terms of any relevant insurance policy and provided that to do so would not, in such Indemnified Person’s view be prejudicial to it (or to any Indemnified Person connected to it) or to any obligation of confidentiality or other legal or regulatory obligation which that Indemnified Person owes to any third party or to any regulatory request that has been made of it, and subject to Sections 11.3(b)any restrictions necessary to maintain legal privilege, 11.3(c) and 11.3(d)as soon as reasonably practicable, where it appears notify the Company thereof provided that a person is or may be entitled failure by such Indemnified Person to indemnification notify the Company shall not relieve the Company from the Supplier in respect of all obligations to indemnify under this Clause 12, and provided further that the failure to notify the Company will not relieve the Company from any liability that the Company may have to any Indemnified Person otherwise than under this Clause 12.
(but not part onlyb) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject toThe Company agrees that:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that if it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct becomes aware of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance Claim relevant for the purposes of considering this Clause 12 or any matters which would give rise to a Claim, it shall promptly, and resisting to the extent permitted by law and regulation, notify the Joint Global Co-ordinators in writing thereof and shall provide the Joint Global Co-ordinators with such claim;
(b) with respect information and copies of such documents relating to the Claim as any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claimUnderwriters may reasonably request;
(ii) it shall not, and shall procure that each of its affiliates will not, without the Supplier shall not bring the name prior written consent of the person entitled relevant Indemnified Person admit any liability in respect of, settle or compromise, consent to the entry of any judgment with respect to or otherwise seek to terminate, any pending or threatened Claim or action in respect of which indemnification may be sought under this Clause 12 (whether or not any Group Member thereofof the Underwriters is an actual or potential party to such Claim), unless such settlement, compromise or consent:
(A) into disreputeincludes an unconditional release of the Underwriters and other Indemnified Persons from all liability arising out of such Claim; and
(iiiB) the Supplier shall does not pay include a statement as to or settle such claims without the prior consent an admission of the person entitled fault, culpability or failure to indemnification, such consent not to be unreasonably withheld act by or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect behalf of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief Underwriter or any other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnified Person.
Appears in 1 contract
Samples: Underwriting Agreement
Conduct of Claims. In This Clause 49.3 (Conduct of Claims) shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". Accordingly: if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become, entitled to indemnification under this Agreement, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within twenty (20) Business Days of receipt of the same; subject to Clauses 49.3.3, 49.3.4 and 49.3.5 below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 49.3.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco‑operation, access and assistance for the purposes of considering and resisting such claim;
(b) ; with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) Clause 49.3.2 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) and the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification ; the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 49.3.2 above; or
or the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (ii20) Business Days of the Supplier notice from the Beneficiary under Clause 49.3.1 above or notifies the Beneficiary that it does not intend to take conduct of the claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) Clause 49.3.3 above; the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) Clause 49.3.2 above applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- operationco‑operation, access and assistance for the purposes of considering and resisting such claim;
. If the Beneficiary gives any notice pursuant to this Clause 49.3.5, then the Indemnifier shall be released from any liability under its indemnity under Clause 49.1 (eProject Co Indemnities to Authority) or Clause 49.2 (Authority Indemnities to Project Co) (as the case may be) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to Clause 49.3.2 in respect of such claim; if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) : an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket out‑of‑pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss sustained by the Beneficiary (including for this purpose indirect or consequential losses or claims for loss of profits which are excluded by this Agreement from being recovered from the Indemnifier); and any person entitled taking any of the steps contemplated by Clauses 49.3.1 to indemnification;
(f) the Supplier 49.3.5 shall inform the person entitled to indemnification of comply with the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement. To avoid doubt the provisions of Clause 59 (Mitigation) apply to any indemnity given under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterindemnity shall not apply to the extent that such part or parts of Direct Losses could have been reduced or avoided by the Beneficiary complying with the provisions of such Clause 59 (Mitigation).
Appears in 1 contract
Samples: Project Agreement
Conduct of Claims. In 3.1 If the Purchaser becomes aware that any matter may give rise to a claim against the Vendor under the Warranties notice of that fact shall be given as soon as reasonably practicable to the Vendor and in any event within ten working days of becoming so aware;
3.2 Without prejudice to the validity of the claim or alleged claim in question, the Purchaser shall, and shall procure that the Company shall, for the purpose of investigating the matter or circumstances alleged to give rise to such claim, and whether and to what extent any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person amount is payable in respect of which an indemnity such claim give the Vendor and its accountants and professional advisers all such information and assistance as the Vendor or its accountants or professional advisers may reasonably request, including (upon reasonable notice and at reasonable times) access to premises and personnel and the right to examine and copy or photograph any assets, accounts, documents and records in relation to the matter or circumstance alleged to give rise to such claim or in relation to the issue of whether and to what extent any amount is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier payable in respect of all (but not part only) such claim provided that nothing in this paragraph 3 shall require disclosure to the Vendor of or the liability arising out giving of access to any information protected by legal privilege or which is advice relating to the validity of a claim, such person entitled claim by the Purchaser under this Agreement or the Tax Deed.
3.3 If the claim in question is a result of or in connection with a claim by or liability to indemnification may at its sole election and subject toa third party then:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
subject as provided in paragraph (ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur below no admission of liability shall be made by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at Purchaser or the Supplier’s own expense Company and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name be compromised, disposed of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims settled without the prior consent of the person entitled to indemnification, Vendor (such consent not to be unreasonably withheld or delayed);
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 Vendor shall be free entitled at any time its own expense in its absolute discretion to give notice take such action as it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest such claim or liability (including, without limitation, making counterclaims or other claims against third parties) in the Supplier that it is retaining name of and on behalf of the Purchaser or taking over (as the case may be) Company and to have the conduct of any defencerelated proceedings, disputenegotiations or appeals; PROVIDED ALWAYS THAT if the Purchaser is able to produce reasonable evidence that commencement of proceedings would materially prejudice the goodwill of the Company, compromise or appeal the Vendor shall not be entitled to proceed unless the Vendor is able to produce evidence in the form of any claim (or an opinion of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim a leading counsel who is reasonably acceptable to the person entitled Purchaser that, on the evidence then available to indemnificationhim, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under in question has a prima facie chance of success and provided further that in the indemnity, event that the person entitled to indemnification shall forthwith repay to case is decided against the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered Vendor (or the value person on whose behalf it has pursued such claim), the Vendor shall be liable for the full amount of the saving any award or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the samejudgment made; and
(iiiii) the amount paid Purchaser will give, subject to the person entitled to indemnification an undertaking by the Supplier in respect Vendor to pay all reasonable costs and expenses thereof, all such information and assistance, including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records, for the purpose of avoiding, disputing, denying, defending, resisting, appealing, compromising or contesting any such claim or liability as the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled Vendor or its professional advisers reasonably request. The Vendor agrees to indemnification to pursue keep all such recovery information confidential and that the Supplier is repaid only to the extent that the amount of use it for such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnificationpurpose;
(fiv) in connection with any proceedings conducted by the Supplier Vendor pursuant to sub-paragraph (ii) above, the Vendor shall
(a) give to the Purchaser all such information and assistance as the Purchaser may reasonably request, for the purpose of monitoring the progress of such action provided that nothing in this paragraph 3 shall inform require disclosure to the person entitled to indemnification of the requirements Purchaser of any insurer who may have an obligation information protected by legal privilege or which is advice relating to provide an indemnity in respect the validity of any liability arising a claim by the Vendor under this Agreement or the Tax Deed and in relation provided further that any information disclosed to such the person entitled Purchaser pursuant to indemnification this paragraph (iv)(a) shall issue instructions accordinglybe and shall be kept by the Purchaser, strictly confidential; and
(gb) consult with the Purchaser on a regular basis and as and when the Purchaser may reasonably request on the progress of the proceedings in question and any person entitled steps to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer be taken in respect of any such matterconnection therewith.
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (Krug International Corp)
Conduct of Claims. In This paragraph 1 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a Party from a person in respect of which whom an indemnity is provided sought under this Schedule, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The Party having, or claiming to have, the benefit of the indemnity is referred to as the “Beneficiary” and the party giving the indemnity is referred to as the “Indemnifier”. If the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Schedule (“Claim”), the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within ten (10) Working Days of receipt of the same. Subject to paragraphs 1.4 and 1.5 below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)paragraph 1.2 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a claimthe Claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf Claim in the name of the person entitled to indemnification Beneficiary at the SupplierIndemnifier’s own expense and take conduct of any defence, dispute, compromise, compromise or appeal of the claim Claim and of any incidental negotiations; provided that negotiations relating to the person entitled Claim. If the Indemnifier does elect to indemnification conduct the Claim, the Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with Claim and, subject to paragraph 1.5 below, the Beneficiary shall not make any admission which could be prejudicial to the defence or settlement of the Claim without the prior written consent of the Indemnifier. With respect to any claim Claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) paragraph 1.3 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) Claim; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) the Supplier Indemnifier shall not pay or settle such claims Claim without the prior written consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person ; and the Indemnifier shall conduct the Claim with all due diligence. The Beneficiary shall be entitled to indemnification have conduct of the Claim and shall be free to pay or settle any claim Claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Contract if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim Claim in accordance with Section 11.3(a)paragraph 1.3 above; or
the Indemnifier fails to notify the Beneficiary in writing of its intention to take conduct of the relevant Claim within ten (ii10) Working Days of the Supplier notice from the Beneficiary under paragraph 1.2 above or if the Indemnifier notifies the Beneficiary in writing that it does not intend to take conduct of the Claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterparagraph 1.4 above.
Appears in 1 contract
Samples: Order Form and Call Off Terms
Conduct of Claims. In 9.1 Without prejudice to the event Purchaser’s right to bring a Non Tax Claim under this Agreement, if the Purchaser becomes aware of any claimsclaim or potential claim by a third party against any member of the Target Group (a Third Party Claim) after Closing which is likely to result in a Non Tax Claim being made under this Agreement, statutory feesthe Purchaser shall as soon as reasonably practicable give notice of the Third Party Claim to each of the Sellers and ensure that access is given to such information, costsdocumentation and management as is reasonably necessary for a representative appointed jointly by the Sellers (and whose identity is notified to the Purchaser (the Sellers’ Claim Representative)) to make a preliminary assessment of the Third Party Claim (provided that the Sellers shall reimburse reasonably incurred third party out of pocket costs and expenses of the Purchaser).
9.2 Without prejudice to the Purchaser’s right to bring a Non Tax Claim under this Agreement, chargessubject to the Purchaser and each member of its Group being indemnified and secured by the Sellers against all reasonable out-of-pocket costs and expenses, penalties (including without limitation any those of its legal costs)advisers, contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person incurred in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11that Third Party Claim, the following provisions shall applyPurchaser shall:
(a) subject provide such information as is reasonable so as to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled enable the Sellers’ Claim Representative to indemnification from investigate further the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim Third Party Claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claimSellers;
(b) not (and procure that no member of its Group shall) admit liability or make any agreement or compromise with respect any person, body or authority in relation to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims that Third Party Claim without the prior written consent of the person entitled to indemnification, Sellers’ Claim Representative (such consent not to be unreasonably withheld or delayed;); and
(c) a person (subject to the Purchaser or the relevant members of its Group being entitled to indemnification shall employ its or their own legal advisers) take any action that the Sellers’ Claim Representative reasonably requests to avoid, resist, dispute, appeal, compromise or defend that Third Party Claim (save to the extent that such action would, in the reasonable opinion of the Purchaser, be free materially prejudicial to pay the business of the Target Group taken as a whole or settle any claim on such terms as it thinks fit (and without line of business of the Purchaser Group).
9.3 Without prejudice to its rights and remedies the Purchaser’s right to bring a Non Tax Claim under this Agreement) if:
(i) , the Supplier is rights of the Sellers under Clause 9.2 shall only apply to a Third Party Claim if the Sellers’ Claim Representative gives a joint notice to the Purchaser in writing of the Sellers’ intention to exercise their rights within 20 Business Days of the Purchaser giving notice of the Third Party Claim. If the Sellers’ Claim Representative does not give a joint notice during that period, the Purchaser shall be entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect Third Party Claim, but shall reasonably consult with the provisions Sellers’ Claim Representative in relation to such conduct and keep the Sellers’ Claim Representative reasonably informed of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt progress of such notice Third Party Claim and provide copies of documentation reasonably requested by the Supplier shall promptly take all steps necessary to transfer Sellers’ Claim Representative in relation thereto (the conduct Sellers reimbursing the Purchaser for any reasonable out of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnityPurchaser properly incurred), provided that there shall be no obligation on the part Purchaser may in its absolute discretion, settle, compromise, or resist any action, proceedings or claim against any member of the person entitled to indemnification to pursue such recovery and Purchaser Group out of which that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who Third Party Claim may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterarise.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (Bt Group PLC)
Conduct of Claims. In This paragraph 10 shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Schedule, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". If the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Schedule ("Claim"), the Beneficiary shall give notice to the Indemnifier as soon as reasonably practicable and in any event within 10 Working Days of receipt of the same. Subject to paragraphs 10.4 and 10.5, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)paragraph 10.2 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a claimthe Claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf Claim in the name of the person entitled to indemnification Beneficiary at the SupplierIndemnified’s own expense and take conduct of any defence, dispute, compromise, compromise or appeal of the claim Claim and of any incidental negotiations; provided that negotiations relating to the person entitled Claim. If the Indemnifier does elect to indemnification conduct the Claim, the Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such claim;
(b) with Claim and, subject to paragraph 10.5 below, the Beneficiary shall not make any admission which could be prejudicial to the defence or settlement of the Claim without the prior written consent of the Indemnifier. With respect to any claim Claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) paragraph 10.3 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) Claim; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) the Supplier Indemnifier shall not pay or settle such claims Claim without the prior written consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person ; and the Indemnifier shall conduct the Claim with all due diligence. The Beneficiary shall be entitled to indemnification have conduct of the Claim and shall be free to pay or settle any claim Claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim Claim in accordance with Section 11.3(a)paragraph 10.3 above; or
(ii) the Supplier Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant Claim within [10 Working Days] of the notice from the Beneficiary under paragraph 10.2 above or if the Indemnifier notifies the Beneficiary that it does not intend to take conduct of the Claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) paragraph 10.4 above. With respect to any Claim for which the Commissioner or 11.3(bthe Supplier or the Supplier Party are the Beneficiary and the conduct of which the Commissioner or Supplier acting reasonably, considers is likely to have an adverse impact on the general public's perception of the Commissioner or the Supplier or the Supplier Party ("Sensitive Claim");
(d) , the person Indemnifier shall only be entitled to indemnification pursuant take conduct of any defence, dispute, compromise or appeal of the Sensitive Claim with the Beneficiary's prior written consent. If the Beneficiary withholds such consent and elects to ARTICLE 11 conduct the defence, dispute, compromise or appeal of the Sensitive Claim itself, it shall conduct the Sensitive Claim with all due diligence and if any failure to do so results in an increase in the amount recoverable by the Beneficiary in respect of an indemnity under this Agreement, the Indemnifier shall only be liable to indemnify the Beneficiary in respect of that amount which would have been recoverable by the Beneficiary had it conducted the Sensitive Claim with all due diligence. The Beneficiary shall be free at any time to give written notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defenceClaim, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) appliesparagraph 10.3 above applies notwithstanding that it does not have the right to do so pursuant to paragraph 10.3 if, in the reasonable opinion of the Beneficiary the Claim is, or has become, a Sensitive Claim. On receipt of In such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnitycases, the person entitled to indemnification provisions of paragraph 10.6 above shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterapply.
Appears in 1 contract
Conduct of Claims. In 11.14.1 The Contractor shall be entitled to bring a claim in the event name of the Authority against any supplier or manufacturer for breach of any claimsguarantee, statutory fees, costs, charges, penalties condition or warranty referred to in Clause 11.13 (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person Warranties in respect of which an indemnity is Legacy Assets), provided by the Supplier pursuant to ARTICLE 11, the following provisions shall applythat:
(aA) subject to Sections 11.3(b), 11.3(cthe Contractor fully indemnifies the Authority against all Claims and Losses in connection with the making of any claim thereunder;
(B) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier Contractor gives such security in advance in respect of all (but not part only) of such indemnity as the liability arising out of a claim, such person entitled to indemnification Authority may at its sole election and subject to:deem reasonably appropriate;
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(iiC) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the such claim and of any incidental negotiations; provided that the person entitled to indemnification negotiations shall give the Supplier (provided be at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claimContractor's expense;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(iD) the Supplier shall keep Contractor keeps the person entitled to indemnification Authority fully informed and consult with it about material elements of the conduct of the any such claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iiiE) the Supplier Contractor's entitlement in respect of any matter to which Clause 11.13.2 or this Clause 11.14 applies shall be limited to the amount recovered by the Authority from the supplier or manufacturer of any guarantee, condition or warranty from which the Authority may benefit in respect of the Claim or Loss referred to in Clause 11.13.2. This Clause 11.14.1(E) shall not pay limit or settle such claims without the prior consent otherwise prejudice any right or entitlement of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification Contractor arising other than pursuant to ARTICLE 11 Clause 11.13.2 or this Clause 11.14.
11.14.2 The Authority shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification Contractor all reasonable co- co operation, access and assistance for the purposes of considering making any such claim under Clause 11.13 and resisting such claim;this shall include:
(eA) if subject to Clause 11.14.3, providing the Supplier pays Contractor with copies of all relevant contracts between the Authority and its suppliers and manufacturers whether appointed before or after the Execution Date; and
(B) paying to the person entitled to indemnification an amount Contractor any proceeds received by the Authority from or on behalf of any of its suppliers and manufacturers in respect of an indemnity and any such claims.
11.14.3 Nothing in Clause 11.14.2(A) shall oblige the person entitled Authority to:
(A) provide to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum the Contractor any information which is directly referable not in the Authority's possession or not in the possession of the Authority's agents, officers or employees or which the Authority does not have a contractual right to require the production of; and
(B) disclose to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser ofContractor any information which:
(i) an amount equal it would not be required to disclose pursuant to the sum recovered (or the value Freedom of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the sameInformation Xxx 0000; andor
(ii) if disclosed, would result in the amount paid Authority being held liable for breaching any of its obligations or prejudicing any of its rights pursuant to the person entitled contract to indemnification by which the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterinformation relates.
Appears in 1 contract
Samples: Project Agreement
Conduct of Claims. In This Clause 49.3 (Conduct of Claims) shall apply to the event of any claimsconduct, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed by a party from a person in respect of which whom an indemnity is provided sought under this Agreement, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The party having, or claiming to have, the benefit of the indemnity is referred to as the "Beneficiary" and the party giving the indemnity is referred to as the "Indemnifier". Accordingly: if the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become, entitled to indemnification under this Agreement, the Beneficiary shall give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within twenty (20) Business Days of receipt of the same; subject to Clauses 49.3.3, 49.3.4 and 49.3.5 below, on the giving of a notice by the Supplier Beneficiary pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b), 11.3(c) and 11.3(d)Clause 49.3.1 above, where it appears that a person the Beneficiary is or may be entitled to indemnification from the Supplier Indemnifier in respect of all (but not part only) of the liability arising out of a the claim, such person entitled the Indemnifier shall (subject to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification Beneficiary with a secured an indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier ) be entitled to dispute the claim on behalf in the name of the person entitled to indemnification Beneficiary at the Supplier’s Indemnifier's own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification . The Beneficiary shall give the Supplier (provided at the Supplier’s cost) Indemnifier all reasonable cooperationco operation, access and assistance for the purposes of considering and resisting such claim;
(b) ; with respect to any claim conducted by the Supplier Indemnifier pursuant to Section 11.3(a):
(i) Clause 49.3.2 above: the Supplier Indemnifier shall keep the person entitled to indemnification Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii) ; the Supplier Indemnifier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) Beneficiary into disrepute; and
(iii) and the Supplier Indemnifier shall not pay or settle such claims without the prior consent of the person entitled to indemnificationBeneficiary, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification ; the Beneficiary shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) Agreement if:
(i) : the Supplier Indemnifier is not entitled to, or is not permitted or instructed, to take conduct of the claim in accordance with Section 11.3(a)Clause 49.3.2 above; or
or the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within twenty (ii20) Business Days of the Supplier notice from the Beneficiary under Clause 49.3.1 above or notifies the Beneficiary that it does not intend to take conduct of the claim; or the Indemnifier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) Clause 49.3.3 above; the person entitled to indemnification pursuant to ARTICLE 11 Beneficiary shall be free at any time to give notice to the Supplier Indemnifier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) Clause 49.3.2 above applies. On receipt of such notice the Supplier Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnificationBeneficiary, and shall provide to the person entitled to indemnification Beneficiary all reasonable co- co operation, access and assistance for the purposes of considering and resisting such claim;
. If the Beneficiary gives any notice pursuant to this Clause 49.3.5, then the Indemnifier shall be released from any liability under its indemnity under Clause 49.1 (eSub-hubco Indemnities to Authority) or Clause 49.2 (Authority Indemnities to Sub-hubco) (as the case may be) and, without prejudice to any accrued liabilities, any liability under its indemnity given pursuant to Clause 49.3.2 in respect of such claim; if the Supplier Indemnifier pays to the person entitled to indemnification Beneficiary an amount in respect of an indemnity and the person entitled to indemnification Beneficiary subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification Beneficiary shall forthwith repay to the Supplier Indemnifier whichever is the lesser of:
(i) : an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-out of pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification Beneficiary in recovering the same; and
(ii) and the amount paid to the person entitled to indemnification Beneficiary by the Supplier Indemnifier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification Beneficiary to pursue such recovery and that the Supplier Indemnifier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier Indemnifier exceeds any loss sustained by the Beneficiary (including for this purpose indirect or consequential losses or claims for loss of profits which are excluded by this Agreement from being recovered from the Indemnifier); and any person entitled taking any of the steps contemplated by Clauses 49.3.1 to indemnification;
(f) the Supplier 49.3.5 shall inform the person entitled to indemnification of comply with the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement. To avoid doubt the provisions of Clause 59 (Mitigation) apply to any indemnity given under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterindemnity shall not apply to the extent that such part or parts of Direct Losses could have been reduced or avoided by the Beneficiary complying with the provisions of such Clause 59 (Mitigation).
Appears in 1 contract
Samples: Project Agreement
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject to Sections 11.3(b8.2(b), 11.3(c8.2(c) and 11.3(d)8.2(d) below, where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) of the liability arising out of a claim, such person entitled to indemnification may at its sole election and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f8.2(f)); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):8.2(a) above:
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (and without prejudice to its rights and remedies under this Agreement) if:
(i) the Supplier is not entitled to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a)8.2(a) above; or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a8.2(a) or 11.3(b)and 8.2(b) above;
(d) the person entitled to indemnification pursuant to ARTICLE 11 8 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a8.2(a) above applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- co-operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 1 contract
Samples: Equipment Rental Agreement
Conduct of Claims. (a) In the event of case any claims, statutory fees, costs, charges, penalties (including without limitation action shall be brought against any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person Indemnified Person in respect of which an indemnity is provided by recovery may be sought from the Supplier pursuant to ARTICLE 11Company under this Clause 6, the following provisions relevant Indemnified Person shall apply:promptly notify the Company in writing of such fact, but failure to do so will not relieve the Company from any liability under this Agreement and in any event shall not relieve it from any liability which it may have otherwise than on account of the indemnities contained in this Agreement.
(ab) Each Indemnified Person shall thereafter, subject to Sections 11.3(b), 11.3(c) and 11.3(d), where it appears that a person is or may be entitled to indemnification from the Supplier in respect of all (but not part only) any requirement imposed by an insurer of the liability arising out of a claim, such person entitled Indemnified Person and to indemnification may at its sole election and subject tothe extent permitted by applicable law or regulation:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) at reasonable intervals keep the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf Company informed of the person entitled to indemnification at the Supplier’s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct progress of the claim;
(ii) provide the Supplier shall not bring Company with copies of such documentation relating to the name of the person entitled to indemnification (or any Group Member thereof) into disreputeclaim as it may reasonably request; and
(iii) maintain reasonable consultation with the Supplier shall not pay or settle such claims without Company regarding decisions concerning the prior consent of claim, subject in each case to the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;
(c) a person entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit (Indemnified Person being indemnified and without prejudice secured to its rights reasonable satisfaction against all Losses incurred by it in consequence of its compliance with this Clause 6, and remedies under provided that nothing in this Agreement) ifClause 6 shall:
(i) require any Indemnified Person to provide the Supplier is not entitled toCompany with a copy of any document which it, in good faith, considers to be held by it subject to a duty of confidentiality or is not permitted or instructed, take conduct to be privileged whether in the context of any litigation connected with the claim in accordance with Section 11.3(a)or otherwise; or
(ii) require an Indemnified Person to do, or refrain from doing, anything which would, or which the Supplier fails Company considers might, either prejudice any insurance cover to comply which it or any other Indemnified Person may from time to time be entitled, or from which it or any of them may benefit or which may prejudice the reputation or standing of such Indemnified Person or of any other Indemnified Person.
(c) The Company may participate at its own expense in the defence of any material respect such action; provided, however, that legal advisers to the Company shall not (except with the provisions consent of Sections 11.3(athe relevant Indemnified Person) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall also be free at any time to give notice legal advisers to the Supplier that it is retaining Indemnified Person. The Company shall not, without the prior written consent of the relevant Indemnified Person, settle or taking over (as compromise or consent to the case may be) the conduct entry of any defencejudgment with respect to any litigation, disputeor any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification could be sought under this Clause 6 (whether or not the Indemnified Person(s) are actual or potential parties thereto), unless such settlement, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser ofconsent:
(i) includes an amount equal to the sum recovered (unconditional release of each Indemnified Person from all liability arising out of such litigation, investigation, proceeding or the value of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the sameclaim; and
(ii) the amount paid does not include a statement as to the person entitled or an admission of fault, culpability or a failure to indemnification act by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation or on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnification;
(f) the Supplier shall inform the person entitled to indemnification of the requirements behalf of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matterIndemnified Person.
Appears in 1 contract
Samples: Second Amendment and Restatement Agreement (Renalytix PLC)
Conduct of Claims. In (a) (assumption of Claims) Subject to paragraph (f), the event Company is, subject to the rights of any claimsinsurer, statutory feesentitled to defend any Claim notified to it under clause 13.5, costsand in so doing, charges, penalties (including without limitation institute any legal costs)or other proceedings (together, contributions, compensations, “Proceedings”) in the name of the Indemnified Party under the sole management and control and at the sole cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is the Company provided by the Supplier pursuant to ARTICLE 11, the following provisions shall applythat:
(ai) the Company consults with both the Indemnified Party and the associated Joint Lead Manager regarding the appointment of legal counsel;
(ii) the Company diligently defends the Claim and both the Indemnified Party and the associated Joint Lead Manager are kept fully informed throughout the Proceedings;
(iii) neither the Indemnified Party nor the associated Joint Lead Manager has any liability for any costs or expenses associated with the Claim or the Proceedings;
(iv) the Company has a reasonable regard to preserving the associated Joint Lead Manager’s reputation in conducting the defence of the Claim;
(v) the Indemnified Party and its associated Joint Lead Manager have the right to information, consultation and, subject to Sections 11.3(bclause 13.6(d), 11.3(cindependent legal representation concerning or with respect to the Proceedings;
(vi) no admission of liability or compromise or consent to judgment whatsoever in connection with the Proceedings may take place without the prior written consent of the Indemnified Party and 11.3(dits associated Joint Lead Manager unless the admission or compromise:
(A) includes an unconditional release of the Indemnified Parties from all liability arising out of the proceeding and Claim; and
(B) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of the Indemnified Parties; and
(vii) the associated Joint Lead Manager or other Indemnified Party have the right at any time to re-assume the defence of any claim or action assumed by the Company.
(b) (separate indemnity) Without in any way limiting clause 13.1, if the Company initiates, defends or takes any proceedings as described in paragraph (a), where it appears that a person is must indemnify the Indemnified Parties who are parties to, or may be entitled to indemnification from the Supplier subject of, the proceedings, in respect of all (but not part only) Losses incurred by those Indemnified Parties in relation to the claim the subject of the liability arising out proceedings or to any Loss resulting from those proceedings.
(c) (obligations of a claimIndemnified Parties) Each Indemnified Party, such person entitled subject only to indemnification may at its sole election clauses 13.6(e) and subject 13.6(f), is required, and their associated Joint Lead Manager must take reasonable steps to cause the Indemnified Parties to:
(i) approval by promptly take any relevant insurers (without prejudice reasonable action as the Company requests to Section 11.3(f)avoid, dispute, resist, appeal, compromise or defend the Proceedings; andXxxxxxx + Xxxxx page | 49
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf of the person entitled to indemnification at the Supplier’s own expense and take conduct of not settle any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier shall not bring the name of the person entitled to indemnification (or any Group Member thereof) into disrepute; and
(iii) the Supplier shall not pay or settle such claims Claim without the prior written consent of the person entitled to indemnification, such Company (this consent not to be unreasonably withheld or delayed);
(ciii) a person subject to legal professional privilege, promptly give all reasonable assistance and co-operation to the Company in the conduct of the Proceedings, including providing the Company with any documents in their possession and signing all documents, authorities and directions which the Company may reasonably require; and
(iv) subject to the rights of any insurer, do anything reasonably necessary or desirable to ensure that the Company is subrogated to and enjoys the benefit of the rights of the Indemnified Parties in relation to the Proceedings and to render any assistance as may be reasonably requested by the Company for that purpose;
(d) (Indemnified Party - separate representation) The Indemnified Party will be entitled to indemnification shall be free to pay or settle any claim on such terms as it thinks fit at its election (and without prejudice to its rights and remedies right of indemnity under this Agreementclause 13.1) to be separately represented in relation to any Proceedings if:
(i) the Supplier is Company has not entitled to, chosen legal counsel satisfactory to the Indemnified Party (acting reasonably);
(ii) a conflict for legal counsel chosen by the Company or is not permitted or instructed, take conduct between the interests of the claim in accordance with Section 11.3(a)Company and the interests of the Indemnified Party arises or could arise;
(iii) there may be legal defences available to the Indemnified Party that are different from or additional to those available to the Company or another Indemnified Party represented by that legal counsel; or
(iiiv) the Supplier fails Indemnified Party reasonably believes it is necessary to comply do so in any material respect with order to protect the provisions Indemnified Party’s reputation or standing, in which case the cost of Sections 11.3(a) or 11.3(b);
(d) such representation will be borne by the person entitled Company. An Indemnified Party may otherwise elect to indemnification pursuant to ARTICLE 11 shall be free separately represented at any time not related to give notice to the Supplier that it is retaining or taking over paragraphs (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiationsi) to (iv) above, in which Section 11.3(a) applies. On receipt case the cost of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;representation will be borne by that Indemnified Party.
(e) if (Indemnified Party - assumption and settlement) If an Indemnified Party (without prejudice to its right of indemnity under clause 13.1) assumes or re-assumes the Supplier pays to the person entitled to indemnification an amount in respect defence or conduct of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser ofany Proceedings:
(i) an amount equal it will have sole management and control of the Proceedings, and absolute discretion with respect to the sum recovered (progress, negotiation or the value settlement of any Proceedings but in doing so will consult with and take account of the saving or benefit obtained) less any out-of-pocket costs and expenses (including legal expenses) properly incurred by views of the person entitled to indemnification in recovering the sameCompany so far as is reasonably possible; and
(ii) the amount paid to the person entitled to indemnification indemnities given by the Supplier Company under clause 13.1 will continue to apply in respect of the Indemnified Party in relation to the claim under the relevant indemnity, provided that there shall be no obligation on the part subject of the person entitled Proceedings or to indemnification to pursue such recovery any Loss resulting from those Proceedings other than for legal fees and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered expenses from the Supplier exceeds any loss sustained by date on which the person entitled to indemnification;Indemnified Party assumes or re-assumes the defence or conduct of the Proceedings. Xxxxxxx + Xxxxx page | 50
(f) (conditions to Indemnified Parties’ obligations)
(i) The Indemnified Parties are under no obligation under this clause 13.6 unless, at the Supplier shall inform time at which the person entitled to indemnification Company requests any of the requirements Indemnified Parties to take any action, the Company irrevocably and unconditionally agrees in a form and substance acceptable to that Indemnified Party, acting reasonably, to indemnify that Indemnified Party against all Losses incurred by or awarded against that Indemnified Party in taking the action required, as and when they fall due, including legal costs and disbursements of their lawyers on a full indemnity basis and the cost of any insurer who may have an obligation to provide an indemnity in respect involvement of any liability arising officers of their associated Joint Lead Manager at normal commercial rates.
(ii) The Indemnified Parties are under no obligation under this Agreement clause 13.6, and the Company will have no right under this clause 13.6 to defend or institute legal or other proceedings in relation the name of the Indemnified Parties if to such do so would, in the person entitled reasonable opinion of the associated Joint Lead Manager, lead to indemnification shall issue instructions accordingly; and
(g) any person entitled a material risk of damage to an indemnity from reputation or standing of the Supplier must take all reasonable measures to mitigate any loss, damage Joint Lead Manager or liability that it may suffer in respect of any such matterIndemnified Parties.
Appears in 1 contract
Samples: Offer Management Agreement (Genworth Financial Inc)
Conduct of Claims. In the event of any claims, statutory fees, costs, charges, penalties (including without limitation any legal costs), contributions, compensations, cost recoveries, expenses or fines being levied or claimed from a person in respect of which an indemnity is provided by the Supplier pursuant to ARTICLE 11, the following provisions shall apply:
(a) subject If either of the parties shall become liable to Sections 11.3(bindemnify any Indemnitee pursuant to this Clause 8 (Costs and Indemnities), 11.3(cthe Charterer and the Owner shall consult in good faith and each of them shall use reasonable endeavours to avoid (or reduce the amount of) and 11.3(d), where it appears that the Claim giving rise to such indemnification.
(b) If a person Claim shall be made against any Indemnitee for which a party is or may be entitled required to indemnification from indemnify the Supplier Indemnitee pursuant to this Clause 8 (Costs and Indemnities), the Indemnitee shall promptly notify the liable party in respect writing of that Claim and shall promptly provide the liable party with all such information available to the Indemnitee regarding the Claim as the liable party may reasonably request. If a Claim shall be made against any Indemnitee for which the liable party may be required to indemnify the Indemnitee pursuant to this Clause 8 (but not part only) Costs and Indemnities), and under Applicable Law of the liability arising out relevant jurisdiction the liable party is allowed to contest directly that Claim in its own name, then, subject to the rights of a claim, such person entitled to indemnification may at its sole election insurers under any Insurances and subject to:
(i) approval by any relevant insurers (without prejudice to Section 11.3(f); and
(ii) the Supplier providing the party entitled to indemnification with a secured indemnity to its reasonable satisfaction against all costs and expenses (including legal expenses) that it may incur by reason of such action, permit or require the Supplier to dispute the claim on behalf obligation of the person entitled liable party to indemnification pay any sum due to the Indemnitee pursuant to this Clause 8 (Costs and Indemnities) on its due date, the liable party shall be permitted, at the Supplier’s own its expense and take conduct in its own name, to contest the imposition of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations; provided that the person entitled to indemnification shall give the Supplier (provided at the Supplier’s cost) all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim;
(b) with respect to any claim conducted by the Supplier pursuant to Section 11.3(a):
(i) the Supplier shall keep the person entitled to indemnification fully informed and consult with it about material elements of the conduct of the claim;
(ii) the Supplier Claim. The liable party shall not bring be permitted to contest the imposition of a Claim in the name of the person entitled to indemnification Indemnitee other than as contemplated in Clauses 8.6 (or any Group Member thereofb) into disrepute; and
and 8.6 (iii) the Supplier shall not pay or settle such claims without the prior consent of the person entitled to indemnification, such consent not to be unreasonably withheld or delayed;c).
(c) If the liable party is prohibited by Applicable Law from contesting a person entitled Claim in its own name, or if it is a requirement of Applicable Law for an Indemnitee to indemnification join in or assist in the contesting by the liable party of any Claim, upon request from the liable party, the Indemnitee shall, subject to the provisions of Clause 8.6 (d), in good faith, at the liable party’s expense, contest or assist promptly in contesting the Claim. After considering any views offered by the Indemnitee and the Indemnitee’s counsel concerning the forum in which a Claim is most likely to be favourably contested, the liable party may, acting reasonably, select the forum for the contest and determine whether the contest shall be free by (i) resisting the Claim, (ii) paying the Claim under protest, (iii) paying the Claim and seeking a refund or other repayment thereof, or (iv) seeking a reduction in the amount of the Claim.
(d) In no event shall an Indemnitee be required to pay contest any Claim nor shall an Indemnitee be required to (i) join in or settle (ii) assist in contesting any claim on such terms as it thinks fit Claim pursuant to this Clause 8 (Costs and without prejudice to its rights and remedies under this AgreementIndemnities) ifunless:
(i) the Supplier is liable party shall have agreed to pay the Indemnitee on demand, and indemnify such Indemnitee from, all costs, losses and expenses that the Indemnitee incurs in contesting or assisting in contesting the Claim or arising out of or relating to the contest or assistance (including, but not entitled limited to, or is not permitted or instructed, take conduct of the claim in accordance with Section 11.3(a); or
(ii) the Supplier fails to comply in any material respect with the provisions of Sections 11.3(a) or 11.3(b);
(d) the person entitled to indemnification pursuant to ARTICLE 11 shall be free at any time to give notice to the Supplier that it is retaining or taking over (as the case may be) the conduct of any defence, dispute, compromise or appeal of any claim (or of any incidental negotiations) to which Section 11.3(a) applies. On receipt of such notice the Supplier shall promptly take all steps necessary to transfer the conduct of such claim to the person entitled to indemnification, and shall provide to the person entitled to indemnification all reasonable co- operation, access and assistance for the purposes of considering and resisting such claim;
(e) if the Supplier pays to the person entitled to indemnification an amount in respect of an indemnity and the person entitled to indemnification subsequently recovers (whether by payment, discount, credit, saving, relief or other benefit or otherwise) a sum which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the person entitled to indemnification shall forthwith repay to the Supplier whichever is the lesser of:
(i) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any out-of-pocket costs costs, expenses and expenses (including legal expenses) properly incurred by the person entitled to indemnification in recovering the same; and
(ii) the amount paid to the person entitled to indemnification by the Supplier in respect of the claim under the relevant indemnity, provided that there shall be no obligation on the part of the person entitled to indemnification to pursue such recovery and that the Supplier is repaid only to the extent that the amount of such recovery aggregated with any sum recovered from the Supplier exceeds any loss sustained by the person entitled to indemnificationfees);
(f) the Supplier shall inform the person entitled to indemnification of the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Agreement and in relation to such the person entitled to indemnification shall issue instructions accordingly; and
(g) any person entitled to an indemnity from the Supplier must take all reasonable measures to mitigate any loss, damage or liability that it may suffer in respect of any such matter.
Appears in 1 contract
Samples: Bareboat Charter Agreement (Seanergy Maritime Holdings Corp.)