Conduct of Claims. (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 a claim made in respect of an 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 Indemnity Claiming Party to enable it to understand the grounds upon which the Claim is likely to be based. (ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the 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 Indemnity Claiming Party with an indemnity against all costs and expenses that it may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name of the Indemnified Person at the Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses. (iii) With respect to any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii): (I) the Indemnity Defaulting Party shall keep the 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 Claim; (II) the Indemnity Defaulting Party shall not bring the name of the 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 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 on behalf of, the Indemnity Claiming Party; and (III) the Indemnity Defaulting Party shall not admit any liability in respect of a Claim without the prior consent of the Indemnity Claiming Party. (iv) The Indemnity Claiming Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 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 (b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim. (v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim. (vi) If the 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of: (I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and (II) the amount paid to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.
Appears in 2 contracts
Samples: Individual Power Purchase Agreement, Individual Power Purchase Agreement
Conduct of Claims. 19.1 If the Council or the CCG (ithe “Indemnified Party”) As becomes aware of any matter that may give rise to a claim under clause 18 against the other (the “Indemnifying Party”), notice of that fact shall be given as soon as reasonably practicable possible to the Indemnifying Party.
19.2 The Indemnified Party shall give the Indemnifying Party the opportunity to have conduct of any relevant claim, and accordingly to defend or enact settlement of any such claim avoid, dispute, deny, defend, resist, appeal, compromise or contest any such claim or liability (including, without limitation, making counterclaims or other claims against third parties) in the name of and on behalf of the Indemnifying Party and to have the conduct of any related proceedings, negotiations or appeals, and in such circumstances it is agreed that no admission of liability shall be made by or on behalf of the Indemnified Party and any event within twenty (20) Business Days after becoming aware claim shall not be compromised, disposed of circumstances giving rise or likely settled without the consent of the Indemnifying Party. The Indemnifying Party may elect not to have conduct as aforesaid.
19.3 Without prejudice to the validity of the claim or alleged claim in question, and whether or not the Indemnifying Party has elected not to defend any such claim, each party shall allow the other and its professional advisors to investigate the matter or circumstance alleged to give rise to such claim and whether and to what extent any a claim made amount is payable in respect of an indemnified matter under this § 21.6 ("Claim")such claim, the non-defaulting Party ("Indemnity Claiming Party") and for such purpose shall give written notice of that fact to the defaulting Party ("Indemnity Defaulting Party") together with such particulars as are reasonably required by the Indemnity Claiming Party to enable it to understand the grounds upon which the Claim is likely to be based.
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the 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 shallgive, subject to providing the Indemnity Claiming Party with an indemnity against being paid all costs and expenses that it may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name of the Indemnified Person at the Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With respect , all such information and assistance, including access to premises and personnel, and the right to examine and copy or photograph any Claim conducted by assets, accounts, documents and records, as the Indemnity Defaulting Party pursuant other party or its professional advisors may reasonably request PROVIDED THAT nothing in this clause 19.3 shall be construed as requiring either party to § 21.6(c)(ii):
(I) disclose any document or thing which is the Indemnity Defaulting Party shall keep the Indemnity Claiming Party fully informed and consult with it about material elements (including the making subject of any payment or settlement) of privilege. The party receiving the conduct of the Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the Indemnity Claiming Party into disrepute by reason of:
(a) the Indemnity Defaulting Party's conduct of same agrees to keep all such Claim being below the standard that would have been pursued by a prudent defendant information confidential and only to use it for 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 on behalf of, the Indemnity Claiming Party; and
(III) the Indemnity Defaulting Party shall not admit any liability in respect of a Claim without the prior consent of the Indemnity Claiming Partypurpose.
(iv) The Indemnity Claiming Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vi) If the 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) the amount paid to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.
Appears in 2 contracts
Samples: Agreement for the Delegation of Functions and Alignment and Pooling of Funding in Respect of Children’s Services, Agreement for the Delegation of Functions and Alignment of Funding in Respect of Children's Community Health and Disability Services
Conduct of Claims. (ia) As soon as reasonably practicable and Within thirty (30) days after the party to be indemnified receiving a notice of commencement of any action or the assertion in writing of any event within twenty (20) Business Days after becoming aware of circumstances giving rise or likely claim by a third party which the party to be indemnified receives notice will give rise to any a right to be indemnified under this Section 9, the party to be indemnified shall give the Company written notice thereof together with a copy of such claim, process or other legal pleading (provided, however, that failure to give such notice shall not affect the obligations of the Company under this Section 9 unless and to the extent that such failure shall be prejudicial to the defense of such claim made by the Company), and the Company shall have the right to undertake the defense thereof by representatives of its own choosing subject to indemnifying and securing the Purchaser in respect of an 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 Indemnity Claiming Party to enable it to understand the grounds upon which the Claim is likely to be based.
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the Indemnity Defaulting Party accepts that any liability Damages 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 Indemnity Claiming Party with an indemnity against all costs and expenses that it may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name of the Indemnified Person at the Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With respect to any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the 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 Claimdefense;
(II) the Indemnity Defaulting Party shall not bring the name of the 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 such Claim advised by skilled and experienced counsel; or
(b) statements made in the event that the Company, by the Indemnity Defaulting Party regarding 30th day after receipt of notice of any such claim (or, if earlier, by the 20th day preceding the day on which an answer or other than pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the extent that Company) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the Company;
(c) anything in this Section 9.2 to the contrary notwithstanding, (i) the Company shall not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim without the consent of the party to be indemnified, and (ii) no party to be indemnified shall consent to entry of any judgment or enter into any settlement or compromise of any such statements regarding action the Buyer are established as a matter defense of fact)which has been assumed by the Company without the consent of the Company, or on behalf of, the Indemnity Claiming Partywhich consent shall not be unreasonably withheld; and
(IIId) the Indemnity Defaulting Party shall not admit any liability in respect of a Claim without the prior consent of the Indemnity Claiming Party.
(iv) The Indemnity Claiming Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vi) If the 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 any such indemnification, 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 indemnified party will cooperate with all reasonable requests of the Indemnity Claiming Party's conduct of such Claim being below Company provided that the standard that would have been pursued by a prudent defendant to such Claim advised by skilled indemnified party is indemnified and experienced counselsecured against any Damages resulting from so co-operating.
(vii) If the Indemnity Defaulting Party pays to the Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) the amount paid to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.
Appears in 2 contracts
Samples: Series a 3 Preferred Stock Purchase Agreement, Series a 3 Preferred Stock Purchase Agreement (EPAM Systems, Inc.)
Conduct of Claims. (i1) 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 Whenever a claim made in respect of an indemnified matter for indemnification shall arise under this § 21.6 Section, the party seeking indemnification (the "ClaimIndemnified Party"), shall notify the non-defaulting Party party from whom such indemnification is sought (the "Indemnity Claiming Indemnifying 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 Indemnity Claiming Party to enable it to understand the grounds upon which the Claim is likely to be based.
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the 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 Indemnity Claiming Party with an indemnity against all costs and expenses that it may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name writing of the Indemnified Person at Proceeding and the Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of facts constituting the Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all basis for such claim in reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With respect to any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the 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 Claimdetail;
(II2) Upon delivery of such notice, such Indemnified Party shall have a duty to take all reasonable steps to mitigate any losses, liabilities, costs, charges and expenses relating to any such Proceeding;
(3) Such Indemnifying Party shall have the Indemnity Defaulting 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 Indemnity Claiming Party into disrepute by reason of:
(arelevant Indemnified Party) the Indemnity Defaulting Party's conduct of such Claim being below the standard that would have been pursued by a prudent defendant also be counsel to such Claim advised by skilled Indemnified Party. In no event shall the Indemnifying Party be liable for fees and experienced expenses of more than one counsel (in addition to any local counsel; or
(b) statements made by separate from its own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the Indemnity Defaulting Party regarding (other than to same jurisdiction arising out of the extent that any such statements regarding the Buyer are established as a matter of fact), same general allegations or on behalf of, the Indemnity Claiming Partycircumstances; and
(III4) No Indemnifying Party shall, without the Indemnity Defaulting Party prior written consent of the Indemnified Parties (which consent shall not admit be unreasonably withheld), settle or compromise or consent to the entry of any liability judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of a Claim without the prior consent of the Indemnity Claiming Party.
(iv) The Indemnity Claiming Party shall which indemnification could be free to pay or settle any Claim on such terms as it thinks fit and without prejudice to its rights and remedies sought under this Agreement if:
(I) the Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at any time to give notice to the Indemnity Defaulting Party that it is retaining or taking over (as the case may be) the conduct of any defence, disputeSection 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 § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Indemnified Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vi) If the 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) the amount paid to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.
Appears in 2 contracts
Samples: Subscription Agreement (Syquest Technology Inc), Warrant Exercise Agreement (Syquest Technology Inc)
Conduct of Claims. 43.1 The Supplier agrees (iand shall procure that its Sub-contractors agree) As soon as reasonably practicable and that the Authority has the sole right, on giving written notice to such effect to the Supplier at any time, to control of any proceedings in relation to any event within twenty Third Party Claim (20including any claim by employees of the Parties), regardless of whether the Supplier (or any Sub-contractor) Business Days after becoming aware of circumstances is also a party to such proceedings.
43.2 The Authority agrees that it shall not settle or compromise any Third Party Claim giving rise to losses exceeding £10,000 (ten thousand pounds) for which the Supplier is liable to indemnify or likely compensate any Commissioning Body under this Contract without prior consultation with the Supplier. The Authority shall keep the Supplier reasonably informed as to give rise the progress and status of any such Third Party Claim until such Third Party Claim is settled or withdrawn.
43.3 If, in contesting, settling or compromising any Third Party Claim, the Authority takes or fails to take any a action which prejudices any entitlement of the Supplier to recover any portion of the claim made from any insurer under any insurance policy maintained by the Supplier in accordance with this Contract, the liability of the Supplier to indemnify or compensate any Commissioning Body in respect of an indemnified matter under this § 21.6 such claim shall be reduced by such portion.
43.4 The Supplier undertakes that:
43.4.1 it shall not, without the Approval of the Authority, settle or compromise any claim ("Claim"), the non-defaulting Party ("Indemnity Claiming Party"whether insured or uninsured) shall give written notice of that fact to the defaulting Party ("Indemnity Defaulting Party") together with such particulars as are reasonably required by the Indemnity Claiming Party to enable it to understand the grounds upon which the Claim Authority or another Commissioning Body is, or is likely to be basedbecome, a party;
43.4.2 where a claim is made against the Supplier and the Authority is not, and is not likely to become, a party to such claim as a defendant, the Supplier shall not settle or compromise any claim exceeding £10,000 (ten thousand pounds) without prior consultation with the Authority; and
43.4.3 it shall ensure that its Sub-contractors give undertakings identical to those given by the Supplier to the Authority under this Clause 43.
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the 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 43.5 If conduct of a notice claim is so assumed by the Indemnity Claiming Party Authority pursuant to § 21.6(c)(i)this Clause 43, the Indemnity Defaulting Party shall, subject to providing Authority shall hold the Indemnity Claiming Party with an indemnity Supplier and its insurers harmless against all costs and expenses that it or any Losses which either of them may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name of the Indemnified Person at the Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With respect to any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the Indemnity Claiming Party fully informed and consult with it about material elements (including the making of any payment or settlement) of the its conduct of the Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the 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 such Claim advised by skilled claim 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 on behalf of, the Indemnity Claiming Party; and
(III) the Indemnity Defaulting Party shall not admit any liability in respect of a Claim without the prior consent of the Indemnity Claiming Party.
(iv) The Indemnity Claiming Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 21.6(c)(ii);
(II) the Indemnity Defaulting Party fails to notify the Indemnity Claiming Party of its intention to take conduct settlement of the relevant Claim within twenty claim or judgment being given if the settlement is made without their consent (20) Business Days of the notice from the Indemnity Claiming Party under § 21.6(c)(i) above such consent not to be unreasonably withheld 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claimdelayed).
(v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vi) If the 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) the amount paid to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.
Appears in 2 contracts
Samples: Quality Assurance Services Agreement, Quality Assurance Services Agreement
Conduct of Claims. (i) As soon as reasonably practicable and in any event within twenty (20) Business Days after becoming 1.2.1 If an Indemnified Party becomes aware of circumstances giving rise or likely to give rise to any a claim made matter in respect of an 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 Indemnity Claiming Party to enable which it to understand the grounds upon which the Claim is likely to be based.
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the 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 Indemnity Claiming Party with an indemnity against all costs and expenses that it may incur by reason of such action or proceeding, be entitled to dispute be indemnified it shall promptly notify the Claim in Indemnifying Party of such matter. Any failure to give such notice shall not affect the name rights of the Indemnified Person Party except to the extent that the rights or interests of the Indemnifying Party are prejudiced by such failure and then only to the extent of such prejudice.
1.2.2 If any Claim has been brought against the Indemnified Party in respect of such matter, the Indemnifying Party shall be entitled at its expense to assume the defence of such Claim in place of the Indemnified Party. In such circumstances, the Indemnified Party shall provide the Indemnifying Party and its advisers with such information and assistance as the Indemnifying Party shall reasonably request at the Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal cost of the Claim and of any incidental negotiationsIndemnifying Party. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With respect to any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Indemnifying Party shall keep the Indemnity Claiming Indemnified Party fully informed and consult with it about material elements (including on a regular basis as to the making progress of any payment or settlement) of such Claim and the conduct of the Claim;
(II) the Indemnity Defaulting defence thereof. The Indemnifying Party shall not bring have the name of the 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 right to such Claim advised by skilled and experienced counsel; or
(b) statements made by the Indemnity Defaulting Party regarding (other than to the extent that agree any such statements regarding the Buyer are established as a matter of fact), or on behalf of, the Indemnity Claiming Party; and
(III) the Indemnity Defaulting Party shall not admit any liability in respect of a Claim without the prior consent of the Indemnity Claiming Party.
(iv) The Indemnity Claiming Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vi) If the 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any reasonable outnon-of-pocket costs and expenses properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) the amount paid to the Indemnity Claiming Party by the Indemnity Defaulting Party financial settlement in respect of the claim under Claim.
1.2.3 If the relevant indemnity.Claim is a result of or in connection with a Claim by a third party, then no admission of liability shall be made by or on behalf of the Indemnified Party without the prior written consent of the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement, compromise, discharge or admission of any Claim unless the Indemnifying Party shall have consented thereto or the Indemnifying Party is in default of its obligations hereunder.
1.2.4 If there is an existing Claim against a member of the BP Group, the BP Group shall be entitled to ask any member of the Innovene Group to provide it and its advisers with such information and assistance as shall be reasonable in all the circumstances, at the cost of the BP Group, and the Innovene Group shall provide such information and assistance.
Appears in 2 contracts
Samples: Master Reorganisation Agreement, Master Reorganisation Agreement (Innovene Inc.)
Conduct of Claims. If the party with a right of indemnity under clause 17.15 or 17.16 (i“Indemnified Party”) As soon as reasonably practicable and in any event within twenty seeks, or may seek to be indemnified by the other party (20“Indemnifying Party”) Business Days after becoming aware of circumstances giving rise under clause 17.15 or likely to give rise to any a claim made 17.16 in respect of an indemnified matter under this § 21.6 a claim by any person of the kind described in sub-clause ("a) of such clauses (“Third Party Claim"”), the non-defaulting following will apply:
(a) The Indemnified Party ("Indemnity Claiming Party") shall will give written notice of that fact the Third Party Claim (including reasonable details) to the defaulting Indemnifying Party ("Indemnity Defaulting Party") together with such particulars as are reasonably required by and ensure that the Indemnity Claiming Indemnified Party to enable it to understand does not make any payment or admission of liability in respect of the grounds upon which the Claim is likely to be basedThird Party Claim.
(iib) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the Indemnity Defaulting The Indemnifying Party accepts that any liability resulting from any action or proceeding will be indemnified under § 21.6(a) (Indemnity) abovemay, on the giving of a notice by the Indemnity Claiming Party pursuant to § 21.6(c)(i)at its election, the Indemnity Defaulting Party shall, subject to providing the Indemnity Claiming Party with an indemnity against all costs and expenses that it may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name of the Indemnified Person at Party, but subject to prior consultation with the Indemnity Defaulting Party's own expense Indemnified Party and take conduct of any defence, dispute, compromise, or appeal so that the reputation of the Claim Indemnified Party is not unfairly harmed, conduct all negotiations and of defend any incidental negotiationsproceedings relating to the Third Party Claim. The Indemnity Claiming For this purpose, the Indemnified Party shall give will make available to the Indemnity Defaulting Indemnifying Party all reasonable cooperationsuch information, access books and assistance records, and give such other co-operation (including making available employees as witnesses), as the Indemnifying Party may reasonably require for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expensespurpose.
(iiic) With respect to any Claim conducted by If and for so long as the Indemnity Defaulting Indemnifying Party pursuant to § 21.6(c)(ii):does not assume the defence of the Third Party Claim, the Indemnified Party will:
(Ii) the Indemnity Defaulting Party shall keep the Indemnity Claiming Indemnifying Party fully informed and consult with it about material elements (including the making of any payment or settlement) of the conduct Indemnified
(ii) at the Indemnifying Party’s request, consult with, and take account of the Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the 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 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 on behalf reasonable views of, the Indemnity Claiming Indemnifying Party so far as reasonably possible in the relevant Indemnified Party; and’s defence of the Third Party Claim and any related proceedings.
(IIId) the Indemnity Defaulting The Indemnified Party shall not admit any liability in respect of a Claim will not, without the prior written consent of the Indemnity Claiming Indemnifying Party.
(iv) The Indemnity Claiming , settle the Third Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vie) If the Indemnity Claiming Indemnified Party gives any notice pursuant to § 21.6(c)(v) above, then the Indemnity Defaulting Party shall be released recovers from any liability under third party any indemnity amount to which a payment made by the Indemnifying Party to the Indemnified Party under this Agreement in respect of such Claimagreement relates, subject to:
the Indemnified Party will procure that the amount so recovered by the Indemnified Party (I) the Indemnity Defaulting Party paying the costs or expenses net of the Indemnity Claiming Partycost of recovery, 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) not exceeding the amount paid by the Indemnifying Party) will be reimbursed without delay to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.Indemnifying Party.
Appears in 2 contracts
Conduct of Claims. If the party with a right of indemnity under clause 26.16 or 26.18 (i“Indemnified Party”) As soon as reasonably practicable and in any event within twenty seeks, or may seek to be indemnified by the other party (20“Indemnifying Party”) Business Days after becoming aware of circumstances giving rise under clause 26.16 or likely to give rise to any a claim made 26.18 in respect of an indemnified matter under this § 21.6 a claim by any person of the kind described in sub-clause ("a) of such clauses (“Third Party Claim"”), the non-defaulting following will apply:
(a) The Indemnified Party ("Indemnity Claiming Party") shall will give written notice of that fact the Third Party Claim (including reasonable details) to the defaulting Indemnifying Party ("Indemnity Defaulting Party") together with such particulars as are reasonably required by and ensure that the Indemnity Claiming Indemnified Party to enable it to understand does not make any payment or admission of liability in respect of the grounds upon which the Claim is likely to be basedThird Party Claim.
(iib) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the Indemnity Defaulting The Indemnifying Party accepts that any liability resulting from any action or proceeding will be indemnified under § 21.6(a) (Indemnity) abovemay, on the giving of a notice by the Indemnity Claiming Party pursuant to § 21.6(c)(i)at its election, the Indemnity Defaulting Party shall, subject to providing the Indemnity Claiming Party with an indemnity against all costs and expenses that it may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name of the Indemnified Person at Party, but subject to prior consultation with the Indemnity Defaulting Party's own expense Indemnified Party and take conduct of any defence, dispute, compromise, or appeal so that the reputation of the Indemnified Party is not unfairly harmed, conduct all negotiations and defend any proceedings relating to the Third Party Claim. For this purpose, the Indemnified Party will make available to the Indemnifying Party all such information, books and records, and give such other co-operation (including making available employees as witnesses), as the Indemnifying Party may reasonably require for the purpose.
(c) If and for so long as the Indemnifying Party does not assume the defence of the Third Party Claim, the Indemnified Party will:
(i) keep the Indemnifying Party fully informed of the Indemnified Party’s progress in defending the Indemnified Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With respect to any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the 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 Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the 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 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 on behalf of, the Indemnity Claiming Partyrelated proceedings; and
(IIIii) at the Indemnity Defaulting Indemnifying Party’s request, consult with, and take account of the reasonable views of, the Indemnifying Party shall not admit so far as reasonably possible in the relevant Indemnified Party’s defence of the Third Party Claim and any liability in respect of a Claim related proceedings.
(d) The Indemnified Party will not, without the prior written consent of the Indemnity Claiming Indemnifying Party.
(iv) The Indemnity Claiming , settle the Third Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vie) If the Indemnity Claiming Indemnified Party gives any notice pursuant to § 21.6(c)(v) above, then the Indemnity Defaulting Party shall be released recovers from any liability under third party any indemnity amount to which a payment made by the Indemnifying Party to the Indemnified Party under this Agreement in respect of such Claimagreement relates, subject to:
the Indemnified Party will procure that the amount so recovered by the Indemnified Party (I) the Indemnity Defaulting Party paying the costs or expenses net of the Indemnity Claiming Partycost of recovery, 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) not exceeding the amount paid by the Indemnifying Party) will be reimbursed without delay to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.Indemnifying Party.
Appears in 2 contracts
Conduct of Claims. (i) As soon as reasonably practicable and in any event within twenty (20) Business Days after becoming 10.1 If the Buyer becomes aware of circumstances giving rise any claim or potential claim by a third party (a “Third Party Claim”) after Completion which is reasonable likely to give rise to any result in a claim being made in respect of an indemnified matter under this § 21.6 ("Claim")Agreement, 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 Indemnity Claiming Party to enable it to understand the grounds upon which the Claim is likely to be based.
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the 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 Indemnity Claiming Party with an indemnity against all costs and expenses that it may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name of the Indemnified Person at the Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With respect to any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the 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 Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the 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 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 on behalf of, the Indemnity Claiming Party; and
(III) the Indemnity Defaulting Party shall not admit any liability in respect of a Claim without the prior consent of the Indemnity Claiming Party.
(iv) The Indemnity Claiming Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vi) If the 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay give notice of the Third Party Claim to the Indemnity Defaulting Party the lesser of:
Seller and (I) an amount equal subject to the sum recovered (or Buyer and the value of Group Companies being indemnified and secured to the saving or benefit obtained) less any Buyer’s reasonable satisfaction by the Seller against all reasonable out-of-pocket costs and expenses properly expenses, including those of its legal advisers, incurred by the Indemnity Claiming Party in recovering the same; and
(II) the amount paid to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of that Third Party Claim) shall:
10.1.1 ensure that the Seller is given all reasonable facilities to investigate the Third Party Claim;
10.1.2 not (and ensure that no Group Company shall) admit liability or make any agreement or compromise with any person, body or authority in relation to that Third Party Claim without prior consultation with the Seller;
10.1.3 take any action that the Seller reasonably requests to avoid, resist, dispute, appeal, compromise or defend that Third Party Claim, and;
10.1.1 appoint lawyers proposed by the Seller and accepted by the Buyer provided that such acceptation shall not be unreasonably denied.
10.2 The rights of the Seller under Clause 10.1 shall only apply to a Third Party Claim if the Seller gives notice to the Buyer in writing of its intention to exercise its rights within 10 Business Days of the Buyer giving notice of the Third Party Claim. If the Seller does not give notice during that period, the Buyer shall be entitled acting reasonably to settle, compromise, or resist any action, proceedings or claim under against the relevant indemnity.Buyer, the Company, or any Group Company out of which that Third Party Claim may arise.
10.3 Neither the Buyer nor the Company nor any of their affiliates shall be required to take any action or refrain from taking any action pursuant to Clause 10.1 if the action or omission requested would, in the reasonable opinion of the Buyer, be materially prejudicial to the business of the Buyer or the Group Companies.
Appears in 2 contracts
Samples: Share Purchase Agreement, Preliminary Contract for the Sale and Purchase of Shares (1295728 Alberta ULC)
Conduct of Claims. 44.1 The Supplier agrees (iand shall procure that its Sub-contractors agree) As soon as reasonably practicable and that the Authority has the sole right, on giving written notice to such effect to the Supplier at any time, to control of any proceedings in relation to any event within twenty Third Party Claim (20including any claim by employees of the Parties), regardless of whether the Supplier (or any Sub-contractor) Business Days after becoming aware of circumstances is also a party to such proceedings.
44.2 The Authority agrees that it shall not settle or compromise any Third Party Claim giving rise to losses exceeding £10,000 (ten thousand pounds) for which the Supplier is liable to indemnify or likely compensate any Commissioning Body under this Contract without prior consultation with the Supplier. The Authority shall keep the Supplier reasonably informed as to give rise the progress and status of any such Third Party Claim until such Third Party Claim is settled or withdrawn.
44.3 If, in contesting, settling or compromising any Third Party Claim, the Authority takes or fails to take any a action which prejudices any entitlement of the Supplier to recover any portion of the claim made from any insurer under any insurance policy maintained by the Supplier in accordance with this Contract, the liability of the Supplier to indemnify or compensate any Commissioning Body in respect of an indemnified matter under this § 21.6 such claim shall be reduced by such portion.
44.4 The Supplier undertakes that:
44.4.1 it shall not, without the Approval of the Authority, settle or compromise any claim ("Claim"), the non-defaulting Party ("Indemnity Claiming Party"whether insured or uninsured) shall give written notice of that fact to the defaulting Party ("Indemnity Defaulting Party") together with such particulars as are reasonably required by the Indemnity Claiming Party to enable it to understand the grounds upon which the Claim Authority or another Commissioning Body is, or is likely to be based.become, a party;
44.4.2 where a claim is made against the Supplier and the Authority is not, and is not likely to become, a party to such claim as a defendant, the Supplier shall not settle or compromise any claim exceeding £10,000 (iiten thousand pounds) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided without prior consultation with the Authority;
44.4.3 it shall ensure that its Sub-contractors give undertakings identical to those given by the Indemnity Defaulting Party accepts that any liability resulting from any action or proceeding will be indemnified Supplier to the Authority under § 21.6(a) (Indemnity) above, on the giving this Clause 44; and
44.5 If conduct of a notice claim is so assumed by the Indemnity Claiming Party Authority pursuant to § 21.6(c)(i)this Clause 44, the Indemnity Defaulting Party shall, subject to providing Authority shall hold the Indemnity Claiming Party with an indemnity Supplier and its insurers harmless against all costs and expenses that it or any Losses which either of them may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name of the Indemnified Person at the Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With respect to any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the Indemnity Claiming Party fully informed and consult with it about material elements (including the making of any payment or settlement) of the its conduct of the Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the 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 such Claim advised by skilled claim 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 on behalf of, the Indemnity Claiming Party; and
(III) the Indemnity Defaulting Party shall not admit any liability in respect of a Claim without the prior consent of the Indemnity Claiming Party.
(iv) The Indemnity Claiming Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 21.6(c)(ii);
(II) the Indemnity Defaulting Party fails to notify the Indemnity Claiming Party of its intention to take conduct settlement of the relevant Claim within twenty claim or judgment being given if the settlement is made without their consent (20) Business Days of the notice from the Indemnity Claiming Party under § 21.6(c)(i) above such consent not to be unreasonably withheld 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claimdelayed).
(v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vi) If the 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) the amount paid to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.
Appears in 2 contracts
Samples: Provision of Language Services Agreement, Agreement Relating to the Provision of Language Services – Non Spoken Languages (Lot 3)
Conduct of Claims. (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 a claim made in respect of an 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 Indemnity Claiming Party to enable it to understand the grounds upon which the Claim is likely to be based.
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the 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 Indemnity Claiming Party with an indemnity against all costs and expenses that it may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name of the Indemnified Person at the Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With respect to any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the 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 Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the Indemnity Claiming Party into disrepute by reason of:
(a) The Parties acknowledge and agree that CAHA will continue to govern the Indemnity Defaulting Party's conduct handling of such Claim being below any and all claims to which it applies in accordance with its terms and that the standard that would have been pursued subsequent provisions of this clause 10.7 shall only apply to claims which are not governed by a prudent defendant to such Claim advised by skilled and experienced counsel; orCAHA.
(b) statements made Subject to clause 10.7(a), if any proceedings are instituted by a third party (which for the Indemnity Defaulting Party regarding (avoidance of doubt shall mean a claim brought by a person other than one of the Parties including, for the avoidance of doubt, an Alliance Participant) against either Party or an Affiliate, Alliance Participant or Appointee of such Party and such Party will be entitled to an indemnity (which for the extent that any such statements regarding the Buyer are established as a matter avoidance of fact)doubt, or on behalf of, the Indemnity Claiming Party; and
(III) the Indemnity Defaulting Party shall not admit include any liability in respect of a Claim without the prior consent of the Indemnity Claiming Party.
(ivpayment under clause 10.4(b)(iii)) The Indemnity Claiming Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vi) If the 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 any Losses resulting from such Claim, subject to:
claim (IProtected Party) 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 may give rise to the Claim a claim under the indemnitysuch indemnity (Relevant Proceedings), the Indemnity Claiming Protected Party shall as soon as reasonably practicable repay give notice of the Relevant Proceedings in writing to the Indemnity Defaulting Party against whom a claim under the lesser of:indemnity may be brought (Protecting Party).
(Ic) an amount equal To the extent practicable, and subject to any obligations the Parties have to Insurers, the Protecting Party shall have the option, subject to giving to the sum recovered (or Protected Party such indemnities as the value Protected Party may reasonably require, to assume the defence of the saving or benefit obtained) less any reasonable out-of-pocket costs and expenses properly incurred by Relevant Proceedings, including the Indemnity Claiming Party in recovering the same; and
(II) the amount paid instruction of legal advisers reasonably satisfactory to the Indemnity Claiming Protected Party by to represent the Indemnity Defaulting Protected Party and any others which the Protecting Party may designate in such Relevant Proceedings and the Protecting Party shall indemnify the Protected Party in respect of the claim under fees and disbursements of such legal advisers related to such Relevant Proceedings.
(d) In any event and subject to the obligations the Parties may have to Insurers, the Protected Party will:
(i) consult with the Protecting Party as to legal representation;
(ii) update the Protecting Party regularly in relation to the Relevant Proceedings, provide to the Protecting Party all information that it may reasonably require and allow the Protecting Party to comment on key documents and submissions, and take reasonable account of such comments; and
(iii) co-operate with the Protecting Party in relation to the management and conduct of the Relevant Proceedings.
(e) In any Relevant Proceedings the Protected Party shall, subject to any obligations it may have to insurers, have the right to retain its own legal advisers, but the fees and expenses of such legal advisers shall be at the expense of such Protected Party unless:
(i) the Protecting Party and the Protected Party have mutually agreed to the retention of such legal advisers and the sharing of the relevant indemnity.fees and expenses; or
(ii) the named parties to any such Relevant Proceedings (including any added parties) include both the Protecting Party and the Protected Party and representation of both parties by the same legal advisers would be inappropriate due to actual or potential differing interests between them.
(f) The Protecting Party shall not be liable for any settlement of any Relevant Proceedings effected without its written consent (such consent not to be unreasonably withheld or delayed) where it has not assumed the defence of such Relevant Proceedings under clause 10.7(c) but, if such Relevant Proceedings are settled with such consent or if there is a Final Judgment for the claimant, the Protecting Party agrees to indemnify the Protected Party on the terms of the relevant indemnity.
Appears in 1 contract
Samples: Alliance Agreement
Conduct of Claims. 5.7.1 If either party (iin each case the “ Notifying Party”) As becomes aware of any matter that may give rise to a claim against the other party (the “ Recipient”) under this Agreement including without limitation a claim from any third party which constitutes or may constitute a Shared Liability or in respect of which the Recipient is or may be liable to indemnify the Notifying Party under this Agreement, notice of that fact (together with all details of the matter in question as are available) shall be given by the Notifying Party to the Recipient as soon as is reasonably practicable and (but in any event within twenty such period as will afford the Recipient reasonable opportunity of requiring the Notifying Party to lodge a timely appeal or response). Any failure to give such notice shall not affect the rights of the Notifying Party except to the extent that the rights or interests of the Recipient are prejudiced by such failure.
5.7.2 Other than in respect of a Shared Liability (20) Business Days after becoming aware which shall be dealt with in accordance with the provisions of circumstances giving rise Clause 5.7.4), without prejudice to the validity of the claim or likely alleged claim in question, the Notifying Party shall allow, and shall procure that any member of its Group allows, the Recipient and its accountants and professional advisers to investigate the matter or circumstance alleged to give rise to such claim and whether and to what extent any a claim made amount is payable in respect of an indemnified such claim and for such purpose the Notifying Party shall, and shall procure that all members of its Group shall, at the expense of the Recipient, take all such action and give all such information, documentation and assistance, including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents, books and records, as the Recipient or its accountants or professional advisers may reasonably request for the purposes of investigating the matter under this § 21.6 or circumstance alleged to give rise to such claim provided that ("Claim")i) the Notifying Party shall not be obliged to breach any confidentiality obligations to which a member of its Group is bound and (ii) the Notifying Party shall not be obliged to take any action which would prejudice any legal privilege of which it is aware and which attaches to any documents. Back to Contents
5.7.3 If the claim in question is a result of or in connection with a claim by or liability to a third party (other than in respect of a Shared Liability) then:
(i) no admission of liability shall be made by or on behalf of the Notifying Party or any member of its Group and the claim shall not be compromised, disposed of or settled without the non-defaulting Party prior written consent of the Recipient ("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 Indemnity Claiming Party to enable it to understand the grounds upon which the Claim is likely consent not to be based.unreasonably withheld or delayed);
(ii) Notwithstanding § 21.6(c)(ivsubject to Clause 5.7.4, the Recipient shall be entitled at its own expense 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 thereof (including, without limitation, making counterclaims or other claims against third parties) in the name of and on behalf of the Notifying Party or § 21.6(c)(vany member of its Group concerned and to have the conduct of any related proceedings, negotiations or appeals; and
(iii) the Notifying Party 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 right to examine and copy or photograph any assets, accounts, documents, books and records, for the purpose of avoiding, disputing, denying, defending, resisting, appealing, postponing, settling, compromising or contesting any such claim, liability or adjudication as the Recipient or its professional advisers reasonably request provided that the Indemnity Defaulting Recipient shall indemnify the Notifying 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 Indemnity Claiming Party with an indemnity against all third party costs and expenses that it or any member of its Group may reasonably and properly incur as a result of the Recipient taking the actions described in Clause 5.7.3(ii) and this Clause 5.7.3(iii) and, if so required by the Notifying Party, shall provide a reasonable estimate of the costs and expenses that the Notifying Party may incur by reason as a result of taking such action or proceeding, be entitled to dispute as is then requested by the Claim in the name of the Indemnified Person at the Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the Claim and of any incidental negotiationsRecipient. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject Recipient agrees to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With respect to any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the Indemnity Claiming Notifying Party fully informed and consult with it about material elements (including as to the making progress of any payment or settlement) of such claim and the conduct of the Claim;defence thereof.
(II) the Indemnity Defaulting Party shall not bring the name of the Indemnity Claiming Party into disrepute by reason of:
(a) the Indemnity Defaulting Party's conduct of such Claim being below the standard 5.7.4 The parties agree that would have been pursued by a prudent defendant to 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 on behalf of, the Indemnity Claiming Party; and
(III) the Indemnity Defaulting Party shall not admit any liability proceedings in respect of any Shared Liability shall be conducted by such entity against whom or in whose name such Liability arises unless the parties agree in writing that a Claim without the prior consent member of the Indemnity Claiming Party.
(iv) other party’s Group would be in a better position to deal with such proceedings. The Indemnity Claiming Party 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) parties will so agree where the Indemnity Defaulting Party is not entitled to take conduct chances of the Claim in accordance with § 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 successfully negotiating a solution to the relevant Claim; or
(b) prejudices issue are more likely with one party than the Indemnity Claiming Party's position in defending the relevant Claim.
(v) other. The Indemnity Claiming Party provisions of Schedule 4 shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vi) If the 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 apply in respect of any such Claim, subject to:
(I) proceedings. If the Indemnity Defaulting Party paying the costs or expenses provisions of the Indemnity Claiming Party, which were incurred by the Indemnity Claiming Party in connection with the Claim prior Clauses 5.1.1 and 5.1.2 cease to apply due to the date on which the Indemnity Claiming Party gives any notice pursuant provisions of paragraph 1.1 of Schedule 3, this Clause 5 shall cease 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) the amount paid to the Indemnity Claiming Party by the Indemnity Defaulting Party apply in respect of the claim under the relevant indemnity.Liabilities. Back to Contents
Appears in 1 contract
Conduct of Claims. 12.2.1 NN agrees that:
(i) As soon as reasonably practicable and in any event within twenty (20) Business Days after becoming if it becomes aware of circumstances giving rise any claims, actions, suits, proceedings (including any government or likely to regulatory investigation), demands, judgments and awards, joint or several (each a “Claim”) relevant for the purpose of sub-clause 12.1 or any matter which may give rise to any a claim made in respect Claim, NN shall notify the Lender, on behalf of an the indemnified matter under this § 21.6 ("Claim"), the non-defaulting Party ("Indemnity Claiming Party") parties thereof and shall give written notice provide them with such information and copies of that fact such documents relating to the defaulting Party ("Indemnity Defaulting Party") together with such particulars Claim as are the Lender, on behalf of the indemnified parties may reasonably required by the Indemnity Claiming Party to enable it to understand the grounds upon which the Claim is likely to be based.request; and
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that it will not, without the Indemnity Defaulting Party accepts that any liability resulting from any action or proceeding will be indemnified under § 21.6(a) (Indemnity) aboveprior written consent of the Lender, 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 Indemnity Claiming Party with an indemnity against all costs and expenses that it may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name behalf of the Indemnified Person at indemnified parties, settle or compromise or consent to the Indemnity Defaulting Party's own expense and take conduct entry into of any defence, dispute, compromise, or appeal of the Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With judgment with respect to any pending or threatened Claim conducted by the Indemnity Defaulting Party pursuant in respect of which indemnification may be sought under sub-clause 12.1 (whether or not any indemnified party is an actual or potential party to § 21.6(c)(ii):
(Isuch Claim) the Indemnity Defaulting Party shall keep the Indemnity Claiming Party fully informed and consult with it about material elements (including the making of any payment unless such settlement, compromise or settlement) consent includes an unconditional release of the conduct of the Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the Indemnity Claiming Party into disrepute by reason of:
(a) the Indemnity Defaulting Party's conduct indemnified party from all liability arising out of such Claim and does not include a statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any indemnified party.
12.2.2 Promptly after it becomes aware of any Claim made or threatened within the scope of the indemnity set out above, the Lender shall, in strict confidence, notify NN of the relevant Claim (indicating the nature of the allegations being below the standard made), provided that would have been pursued by a prudent defendant any failure to such Claim advised by skilled so notify shall not relieve NN of its obligation to indemnify under sub-clause
12.1 unless and experienced counsel; or
(b) statements made by the Indemnity Defaulting Party regarding (other than to the extent that NN did not otherwise learn of such action and such failure results in NN being materially prejudiced.
12.2.3 Subject to this sub-clause 12.2.3 NN may elect to participate in the defence of any such statements regarding the Buyer are established as a matter of fact), or on behalf of, the Indemnity Claiming Party; and
(III) the Indemnity Defaulting Party shall not admit any liability in respect of a Claim without the prior consent Claim. If it so elects after receipt of the Indemnity Claiming Party.
(iv) The Indemnity Claiming Party shall be free notice referred 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) in sub-clause 12.2.2, NN may assume the Indemnity Defaulting Party is not entitled to take conduct defence of the Claim in accordance at its own expense with § 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 legal advisers chosen by 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 and reasonably satisfactory to the relevant Claim; or
indemnified party. Notwithstanding such election, the indemnified parties may employ separate legal advisers and NN shall bear the reasonable fees and expenses of such separate legal advisers if (bi) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at any NN has failed within a reasonable time to give notice retain legal advisers reasonably satisfactory to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vi) If the 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) the amount paid to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.Lender;
Appears in 1 contract
Samples: Loan Agreement
Conduct of Claims. (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 Whenever a claim made in respect of an indemnified matter for indemnification shall arise under this § 21.6 Section 17, the party seeking indemnification (the "ClaimINDEMNIFIED PARTY"), shall notify the non-defaulting Party party from whom such indemnification is sought (the "Indemnity Claiming PartyINDEMNIFYING PARTY") shall give written notice in writing of that fact to the defaulting Party ("Indemnity Defaulting Party") together with Proceeding and the facts constituting the basis for such particulars as are reasonably required by the Indemnity Claiming Party to enable it to understand the grounds upon which the Claim is likely to be based.claim in reasonable detail;
(ii) Notwithstanding § 21.6(c)(ivSuch Indemnifying Party shall have the 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 (except with the consent of the relevant Indemnified Party) or § 21.6(c)(valso be counsel to 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) and provided that the Indemnity Defaulting Party accepts that separate from its own counsel for all Indemnified Parties in connection with any liability resulting from any one 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 Indemnity Claiming Party with an indemnity against all costs and expenses that it may incur by reason of such action separate but similar or proceeding, be entitled to dispute the Claim related actions in the name same jurisdiction arising out of the Indemnified Person at the Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, same general allegations or appeal of the Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.circumstances; and
(iii) With No Indemnifying Party shall, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any Claim conducted litigation, or any investigation or proceeding by the Indemnity Defaulting any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification could be sought under this Section 17 unless such settlement, compromise or consent (A) includes an unconditional release of each Indemnified Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the 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 Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the Indemnity Claiming Party into disrepute by reason of:
(a) the Indemnity Defaulting Party's conduct from all liability arising out of such Claim being below the standard that would have been pursued 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 a prudent defendant to 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 on behalf of, the Indemnity Claiming Party; and
(III) the Indemnity Defaulting Party shall not admit of any liability in respect of a Claim without the prior consent of the Indemnity Claiming Indemnified Party.
(iv) The Indemnity Claiming Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vi) If the 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) the amount paid to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.
Appears in 1 contract
Conduct of Claims. (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 Whenever a claim made in respect of an indemnified matter for indemnification arises under this § 21.6 Section 15, the party seeking indemnification (the "ClaimIndemnified Party"), will notify the non-defaulting Party party from whom such indemnification is sought (the "Indemnity Claiming Indemnifying Party") shall give written notice in writing of that fact to the defaulting Party ("Indemnity Defaulting Party") together with Proceeding and the facts constituting the basis for such particulars as are reasonably required by the Indemnity Claiming Party to enable it to understand the grounds upon which the Claim is likely to be based.claim in reasonable detail;
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) The Indemnifying Party shall have the right to participate in and provided to assume the defense of any Proceeding; provided, however, that the Indemnity Defaulting Indemnified Party accepts that shall have the right to retain its own counsel (in addition to any liability resulting from local counsel), with the reasonably incurred fees and expenses of one such counsel (in addition to any action or proceeding will local counsel) to be indemnified under § 21.6(a) (Indemnity) above, on the giving of a notice paid by the Indemnity Claiming Party pursuant to § 21.6(c)(i)Indemnifying Party, the Indemnity Defaulting Party shall, subject to providing the Indemnity Claiming Party with an indemnity against all costs and expenses that it may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name if representation of the Indemnified Person at Party by the Indemnity Defaulting Party's own expense counsel retained by the Indemnifying Party would be inappropriate under applicable standards of professional conduct due to actual or potential conflicting interests between the Indemnified Party and take conduct of any defence, dispute, compromise, or appeal of the Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting other party represented by such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.counsel in such Proceeding; and
(iii) With No Indemnifying Party will, without the prior written consent of the Indemnified Parties (which consent will not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any Claim conducted litigation, or any investigation or proceeding by the Indemnity Defaulting any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification could be sought under this Section 15 unless such settlement, compromise or consent (A) includes an unconditional release of each Indemnified Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the 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 Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the Indemnity Claiming Party into disrepute by reason of:
(a) the Indemnity Defaulting Party's conduct from all liability arising out of such Claim being below the standard that would have been pursued 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 a prudent defendant to 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 on behalf of, the Indemnity Claiming Party; and
(III) the Indemnity Defaulting Party shall not admit of any liability in respect of a Claim without the prior consent of the Indemnity Claiming Indemnified Party.
(iv) The Indemnity Claiming Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vi) If the 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) the amount paid to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.
Appears in 1 contract
Samples: Stock Purchase Agreement (Alloy Inc)
Conduct of Claims. 22.1 If the Council or the CCG (ithe “Indemnified Party”) As becomes aware of any matter that may give rise to a claim under Xxxxxx 21 against the other (the “Indemnifying Party”), notice of that fact shall be given as soon as reasonably practicable possible to the Indemnifying Party.
22.2 The Indemnified Party shall give the Indemnifying Party the opportunity to have conduct of any relevant claim, and accordingly to defend or enact settlement of any such claim avoid, dispute, deny, defend, resist, appeal, compromise or contest any such claim or liability (including, without limitation, making counterclaims or other claims against third parties) in the name of and on behalf of the Indemnifying Party and to have the conduct of any related proceedings, negotiations or appeals, and in such circumstances it is agreed that no admission of liability shall be made by or on behalf of the Indemnified Party and any event within twenty (20) Business Days after becoming aware claim shall not be compromised, disposed of circumstances giving rise or likely settled without the consent of the Indemnifying Party. The Indemnifying Party may elect not to have conduct as aforesaid.
22.3 Without prejudice to the validity of the claim or alleged claim in question, and whether or not the Indemnifying Party has elected not to defend any such claim, each Partner shall allow the other and its professional advisors to investigate the matter or circumstance alleged to give rise to such claim and whether and to what extent any a claim made amount is payable in respect of an indemnified matter under this § 21.6 ("Claim")such claim, the non-defaulting Party ("Indemnity Claiming Party") and for such purpose shall give written notice of that fact to the defaulting Party ("Indemnity Defaulting Party") together with such particulars as are reasonably required by the Indemnity Claiming Party to enable it to understand the grounds upon which the Claim is likely to be based.
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the 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 shallgive, subject to providing the Indemnity Claiming Party with an indemnity against being paid all costs and expenses that it may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name of the Indemnified Person at the Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With respect , all such information and assistance, including access to premises and personnel, and the right to examine and copy or photograph any Claim conducted by assets, accounts, documents and records, as the Indemnity Defaulting Party pursuant other Partner or its professional advisors may reasonably request PROVIDED THAT nothing in this Clause 22.3 shall be construed as requiring either Partner to § 21.6(c)(ii):
(I) disclose any document or thing which is the Indemnity Defaulting Party shall keep the Indemnity Claiming Party fully informed and consult with it about material elements (including the making subject of any payment or settlement) of privilege. The Partner receiving the conduct of the Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the Indemnity Claiming Party into disrepute by reason of:
(a) the Indemnity Defaulting Party's conduct of same agrees to keep all such Claim being below the standard that would have been pursued by a prudent defendant information confidential and only to use it for 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 on behalf of, the Indemnity Claiming Party; and
(III) the Indemnity Defaulting Party shall not admit any liability in respect of a Claim without the prior consent of the Indemnity Claiming Partypurpose.
(iv) The Indemnity Claiming Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vi) If the 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) the amount paid to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.
Appears in 1 contract
Samples: Section 75 Agreement
Conduct of Claims. If the party with a right of indemnity under clause 17.15 or 17.16 (i“Indemnified Party”) As soon as reasonably practicable and in any event within twenty seeks, or may seek to be indemnified by the other party (20“Indemnifying Party”) Business Days after becoming aware of circumstances giving rise under clause 17.15 or likely to give rise to any a claim made 17.16 in respect of an indemnified matter under this § 21.6 a claim by any person of the kind described in sub-clause ("a) of such clauses (“Third Party Claim"”), the non-defaulting following will apply:
(a) The Indemnified Party ("Indemnity Claiming Party") shall will give written notice of that fact the Third Party Claim (including reasonable details) to the defaulting Indemnifying Party ("Indemnity Defaulting Party") together with such particulars as are reasonably required by and ensure that the Indemnity Claiming Indemnified Party to enable it to understand does not make any payment or admission of liability in respect of the grounds upon which the Claim is likely to be basedThird Party Claim.
(iib) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the Indemnity Defaulting The Indemnifying Party accepts that any liability resulting from any action or proceeding will be indemnified under § 21.6(a) (Indemnity) abovemay, on the giving of a notice by the Indemnity Claiming Party pursuant to § 21.6(c)(i)at its election, the Indemnity Defaulting Party shall, subject to providing the Indemnity Claiming Party with an indemnity against all costs and expenses that it may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name of the Indemnified Person at Party, but subject to prior consultation with the Indemnity Defaulting Party's own expense Indemnified Party and take conduct of any defence, dispute, compromise, or appeal so that the reputation of the Indemnified Party is not unfairly harmed, conduct all negotiations and defend any proceedings relating to the Third Party Claim. For this purpose, the Indemnified Party will make available to the Indemnifying Party all such information, books and records, and give such other co-operation (including making available employees as witnesses), as the Indemnifying Party may reasonably require for the purpose.
(c) If and for so long as the Indemnifying Party does not assume the defence of the Third Party Claim, the Indemnified Party will:
(i) keep the Indemnifying Party fully informed of the Indemnified Party’s progress in defending the Indemnified Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With respect to any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the 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 Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the 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 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 on behalf of, the Indemnity Claiming Partyrelated proceedings; and
(IIIii) at the Indemnity Defaulting Indemnifying Party’s request, consult with, and take account of the reasonable views of, the Indemnifying Party shall not admit so far as reasonably possible in the relevant Indemnified Party’s defence of the Third Party Claim and any liability in respect of a Claim related proceedings.
(d) The Indemnified Party will not, without the prior written consent of the Indemnity Claiming Indemnifying Party.
(iv) The Indemnity Claiming , settle the Third Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vie) If the Indemnity Claiming Indemnified Party gives any notice pursuant to § 21.6(c)(v) above, then the Indemnity Defaulting Party shall be released recovers from any liability under third party any indemnity amount to which a payment made by the Indemnifying Party to the Indemnified Party under this Agreement in respect of such Claimagreement relates, subject to:
the Indemnified Party will procure that the amount so recovered by the Indemnified Party (I) the Indemnity Defaulting Party paying the costs or expenses net of the Indemnity Claiming Partycost of recovery, 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) not exceeding the amount paid by the Indemnifying Party) will be reimbursed without delay to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.Indemnifying Party.
Appears in 1 contract
Samples: Use of System Agreement
Conduct of Claims. 44.1 The Supplier agrees (iand shall procure that its Sub-contractors agree) As soon as reasonably practicable and that the Authority has the sole right, on giving written notice to such effect to the Supplier at any time, to control of any proceedings in relation to any event within twenty Third Party Claim (20including any claim by employees of the Parties), regardless of whether the Supplier (or any Sub-contractor) Business Days after becoming aware of circumstances is also a party to such proceedings.
44.2 The Authority agrees that it shall not settle or compromise any Third Party Claim giving rise to losses exceeding £10,000 (ten thousand pounds) for which the Supplier is liable to indemnify or likely compensate any Commissioning Body under this Contract without prior consultation with the Supplier. The Authority shall keep the Supplier reasonably informed as to give rise the progress and status of any such Third Party Claim until such Third Party Claim is settled or withdrawn.
44.3 If, in contesting, settling or compromising any Third Party Claim, the Authority takes or fails to take any a action which prejudices any entitlement of the Supplier to recover any portion of the claim made from any insurer under any insurance policy maintained by the Supplier in accordance with this Contract, the liability of the Supplier to indemnify or compensate any Commissioning Body in respect of an indemnified matter under this § 21.6 such claim shall be reduced by such portion.
44.4 The Supplier undertakes that:
44.4.1 it shall not, without the Approval of the Authority, settle or compromise any claim ("Claim"), the non-defaulting Party ("Indemnity Claiming Party"whether insured or uninsured) shall give written notice of that fact to the defaulting Party ("Indemnity Defaulting Party") together with such particulars as are reasonably required by the Indemnity Claiming Party to enable it to understand the grounds upon which the Claim Authority or another Commissioning Body is, or is likely to be basedbecome, a party;
44.4.2 where a claim is made against the Supplier and the Authority is not, and is not likely to become, a party to such claim as a defendant, the Supplier shall not settle or compromise any claim exceeding £10,000 (ten thousand pounds) without prior consultation with the Authority; and
44.4.3 it shall ensure that its Sub-contractors give undertakings identical to those given by the Supplier to the Authority under this Clause 44.
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the 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 44.5 If conduct of a notice claim is so assumed by the Indemnity Claiming Party Authority pursuant to § 21.6(c)(i)this Clause 44, the Indemnity Defaulting Party shall, subject to providing Authority shall hold the Indemnity Claiming Party with an indemnity Supplier and its insurers harmless against all costs and expenses that it or any Losses which either of them may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name of the Indemnified Person at the Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With respect to any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the Indemnity Claiming Party fully informed and consult with it about material elements (including the making of any payment or settlement) of the its conduct of the Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the 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 such Claim advised by skilled claim 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 on behalf of, the Indemnity Claiming Party; and
(III) the Indemnity Defaulting Party shall not admit any liability in respect of a Claim without the prior consent of the Indemnity Claiming Party.
(iv) The Indemnity Claiming Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 21.6(c)(ii);
(II) the Indemnity Defaulting Party fails to notify the Indemnity Claiming Party of its intention to take conduct settlement of the relevant Claim within twenty claim or judgment being given if the settlement is made without their consent (20) Business Days of the notice from the Indemnity Claiming Party under § 21.6(c)(i) above such consent not to be unreasonably withheld 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claimdelayed).
(v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vi) If the 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) the amount paid to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.
Appears in 1 contract
Conduct of Claims. This sub-clause shall apply to the conduct, by the Private Party from whom an indemnity is sought under this Agreement, of claims made by a third person against the CoT having (ior claiming to have) As the benefit of the indemnity. Accordingly: if the CoT receives any notice, demand, letter or other document concerning any claim for which it appears that the CoT is, or may become entitled to, indemnification under this Agreement, the CoT shall give notice in writing (together with a copy of such notice, demand, letter or other document) to the Private Party as soon as reasonably practicable and in any event within twenty ten (2010) Business Days after becoming aware of circumstances giving rise or likely receipt of the same; subject to give rise to any a claim made in respect of an indemnified matter under this § 21.6 ("Claim")Clauses 11.5.3, 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 Indemnity Claiming Party to enable it to understand the grounds upon which the Claim is likely to be based.
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) 11.5.4 and provided that the Indemnity Defaulting Party accepts that any liability resulting from any action or proceeding will be indemnified under § 21.6(a) (Indemnity) above11.5.5 below, on the giving of a notice by the Indemnity Claiming Party CoT pursuant to § 21.6(c)(i)Clause 11.5.1 above, where it appears that the Indemnity Defaulting Party shall, subject to providing the Indemnity Claiming Party with an indemnity against all costs and expenses that it CoT is or may incur by reason of such action or proceeding, be entitled to dispute indemnification from the Claim Private Party in respect of all liability arising out of the claim, the Private Party shall subject to the rights of the insurers under the Insurances be entitled, by giving notice to the CoT of its intention to do so, to dispute, the claim or to conduct all negotiations and court, tribunal or other proceedings in respect thereof, in the name of the Indemnified Person CoT at the Indemnity Defaulting Private Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the Claim claim and of any incidental negotiations. The Indemnity Claiming Party CoT shall give the Indemnity Defaulting Private Party all reasonable cooperationco-operation, access and assistance for the purposes of considering and resisting such Claim, subject to claim all of which shall be provided by the Indemnity Defaulting CoT at the cost of the Private Party paying the Indemnity Claiming Party's (such costs being reasonable costs and expenses.
(iii) With fair); with respect to any Claim claim conducted by the Indemnity Defaulting Private Party pursuant to § 21.6(c)(ii):
(I) Clause 11.5.2 above: the Indemnity Defaulting Private Party shall keep the Indemnity Claiming Party CoT fully informed and consult with it about material elements (including the making of any payment or settlement) of the conduct of the Claim;
(II) claim; the Indemnity Defaulting Private Party shall not bring the name of the Indemnity Claiming Party CoT into disrepute by reason of:
(a) disrepute; and the Indemnity Defaulting 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; 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 on behalf of, the Indemnity Claiming Party; and
(III) the Indemnity Defaulting Private Party shall not admit any liability in respect of a Claim pay or settle such claims without the prior consent of the Indemnity Claiming Party.
(iv) The Indemnity Claiming Party CoT, such consent not to be unreasonably withheld or delayed; the CoT 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 if:
(I) : the Indemnity Defaulting Private Party is not entitled to take conduct of the Claim claim in accordance with § 21.6(c)(ii);
(II) Clause 11.5.2 above; or the Indemnity Defaulting Private Party fails to notify the Indemnity Claiming Party CoT of its intention to take conduct of the relevant Claim claim within twenty (20) Business Days of the notice from the Indemnity Claiming Party CoT under § 21.6(c)(i) Clause 11.5.1 above or notifies the Indemnity Claiming Party CoT that it does not intend to take conduct of the Claimclaim; and
(III) or the Indemnity Defaulting Private Party fails to comply in any material respect with the provisions of Clause 11.5.2 above; Should the CoT settle, admit, or compromise any provision claim by a third party, other than under circumstances referred to in Clause 11.5.4, in respect of which it seeks to be indemnified under this § 21.6(c) which materially:
(a) increases Agreement without the liability or exposure prior consent of the Indemnity Claiming Party Private Party, then the Private Party's obligation to indemnify the CoT shall be limited to the relevant Claim; or
extent to which the third party claimant would have in law been able to recover such claim from the CoT but for the admission, settlement or compromise thereof. Should the Private Party receiving notice referred to in Clause 11.5.1 not respond within twenty (b20) prejudices Business Days to the Indemnity Claiming Party's position CoT regarding any proposed admission, settlement or compromise of any claim that has been notified to it in defending terms of 11.5.1 then the relevant Claim.
(v) The Indemnity Claiming Private Party shall be free at any time deemed to give notice have given its consent to the Indemnity Defaulting Party that it is retaining proposed terms of admission, settlement or taking over (as the case may be) the conduct compromise of any defence, dispute, compromise or appeal of any Claim (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such a claim.
(vi) If the 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 communicated to it. if 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 Private Party pays to the Indemnity Claiming Party CoT an amount in respect of an indemnity under this Agreement and the Indemnity Claiming Party separately CoT 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 claim under the indemnity, the Indemnity Claiming Party CoT shall as soon as reasonably practicable forthwith repay to the Indemnity Defaulting Private Party whichever is the lesser of:
(I) : 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 properly incurred by the Indemnity Claiming Party CoT in recovering the same; and
(II) and the amount paid to the Indemnity Claiming Party CoT by the Indemnity Defaulting Private Party in respect of the claim under the relevant indemnity.indemnity, provided that there shall be no obligation on the CoT to pursue such recovery, and provided that the Private Party is repaid only to the extent that the amount of such recovery, aggregated with any sum recovered from the Private Party exceeds any loss sustained by the CoT (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 Private Party); and any person taking any of the steps contemplated by Clauses 11.5.1 to 11.5.5 shall 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. Where the Private Party is indemnified by either the Construction Subcontractor or the Operations Subcontractor for a claim in respect of which it has given an indemnity under this Clause 11, the Private Party shall be entitled to permit the Construction Subcontractor or the Operations Subcontractor, as the case may be, to conduct the claim on its behalf, provided that the Private Party shall procure that the claim is conducted in accordance with this Clause 11 and the Private Party shall remain solely liable to the CoT for compliance with all of the Private Party's obligations under this Clause 11. 12LIMITS ON LIABILITY Save for: the CoT’s right to claim at any time the amount of any direct losses incurred by it as a result of rectifying or mitigating the effects of any Private Party Event of Default; and any other express right of the CoT under this Agreement to be indemnified against any third party claim, (and subject to Clause 42.1.3 [CoT’s Options] the sole remedy of the CoT in respect of any failure in the delivery of the Services shall be the operation of the Deductions in accordance with the Payment Mechanism provided for in Schedule 13 Part 1 [Performance Standards and Payment Mechanism] Nothing in Clause 12.1 shall prevent or restrict the right of the CoT to seek any interdict or similar relief, any decree of specific performance or any other discretionary remedies of a court or dispute resolution body or other tribunal. If the Private Party is expressly entitled to any indemnification under this Agreement for any losses incurred by it whether because of the conduct of the CoT or any other cause, then the Private Party’s sole remedy in respect of such losses shall be its indemnity and, accordingly, it shall not be entitled to any other remedy for such losses whether pursuant to Clause 39 or otherwise provided that this shall not detract from the Private Party’s rights pursuant to Clause 43 [CoT Events of Default]. A Party who is entitled to any indemnification or other compensation under this Agreement for any losses incurred by it, whether because of the conduct of the other Party or for any other cause, shall, in respect of such losses, not be entitled to: any claim for damages based on breach of contract, or delict or on any other basis in respect of such conduct or cause; or any claim for its own or that of subcontractors loss of profit, loss of use, loss of production, loss of business, loss of business opportunity, indirect, special or consequential loss as a result of such conduct or cause other than where such loss is specifically provided for as part of a compensation in terms of this Agreement. Save as otherwise provided in Clause 11.4 and 35.1.10 and to the extent the act or omission is or ought to be covered by the Insurances set out in Schedule 14 [Insurances], the CoT shall not be liable whether in contract, in delict or as a result of an indemnification in terms of this Agreement, or otherwise, to the Private Party in respect of any negligent act or omission of the CoT, its employees, officials, representatives or guests, which is or ought to be insured against pursuant to the Insurances. The Private Party has agreed to this on the basis that it shall mitigate the risks of any such negligent acts or omissions on the part of the CoT by obtaining and maintaining Insurances.
Appears in 1 contract
Samples: Public Private Partnership Agreement
Conduct of Claims. (i) As soon as reasonably practicable and in Each Indemnified Person shall, promptly after the receipt of notice of any event within twenty (20) Business Days after becoming aware of circumstances giving rise or likely to give rise to any a claim made Claim against such Indemnified Person in respect of an 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 Indemnity Claiming Party to enable it to understand the grounds upon which the Claim is likely to indemnification may be based.
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the 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 sought pursuant to § 21.6(c)(i)this Section 14.01, notify the Indemnity Defaulting other Party shall, subject from who it seeks indemnity (“Indemnifying Party”) of any such Claim. The Indemnifying Party shall not be obligated to providing the Indemnity Claiming Party with an indemnity against all costs and expenses that it may incur by reason of indemnify such action or proceeding, be entitled to dispute the Claim in the name of the Indemnified Person at the Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With with respect to any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the 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 Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the 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 if 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 on behalf of, the Indemnity Claiming Party; and
(III) the Indemnity Defaulting Party shall not admit any liability in respect of a Claim without the prior consent of the Indemnity Claiming Party.
(iv) The Indemnity Claiming Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 21.6(c)(ii);
(II) the Indemnity Defaulting Party Indemnified Person fails to notify the Indemnity Claiming Indemnifying Party of its intention to take conduct of thereof in accordance with 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 provisions of this § 21.6(cSection 14.01(b) which materially:
(a) increases in sufficient time to permit the liability or exposure of the Indemnity Claiming Indemnifying Party to the relevant Claim; or
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at defend against any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim and to the Indemnity Claiming Partymake a timely response thereto, and shall provide including any responsive motion or answer to the Indemnity Claiming Party all reasonable cooperationa complaint, access and assistance for the purposes of considering and resisting such claim.
(vi) If the Indemnity Claiming Party gives petition, notice or other legal, equitable or administrative process relating to 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:
but only insofar as such failure to notify the Indemnifying Party has actually resulted in material prejudice or damage to the Indemnifying Party. In case any Claim shall be made or brought against an Indemnified Person, the Indemnifying Party may, or if so requested by such Indemnified Person shall, assume the defense thereof with competent counsel of its selection to defend such Indemnified Person. In such circumstances, such Indemnified Person shall (Ii) at no cost or expense to such Indemnified Person, cooperate with the Indemnity Defaulting Indemnifying Party paying and provide the costs or expenses of Indemnifying Party with such information and assistance as the Indemnity Claiming Party, which were incurred by the Indemnity Claiming Indemnifying Party shall reasonably request 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 and (ii) at its own cost and expense have the right to participate and be represented by counsel of its own choice with respect to any agreed such Claim; provided, however, that if a Claim creates or determined amount may reasonably be expected to create a conflict between the extent Parties or exposes or may reasonably be expected to expose the Indemnified Party to criminal liability, the Indemnified Party shall (A) not be required to cooperate or provide such information and assistance that it has been materially increased by reason of the Indemnity Claiming Party's conduct of Indemnifying Party requests in connection with such Claim being below the standard that would have been pursued by a prudent defendant and (B) be entitled to such Claim advised by skilled and experienced counsel.
(vii) If the Indemnity Defaulting Party pays to the Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) an amount equal to the sum recovered (or the value of the saving or benefit obtained) less any indemnification for reasonable out-of-pocket costs and expenses properly incurred in connection with such Indemnified Party’s participation and representation by the Indemnity Claiming Party in recovering the same; and
(II) the amount paid counsel of its own choice with respect to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.such Claim.
Appears in 1 contract
Samples: Joint Ownership Agreement (Ormat Technologies, Inc.)
Conduct of Claims. (i) As soon as reasonably practicable and in Each Indemnified Person shall, promptly after the receipt of notice of any event within twenty (20) Business Days after becoming aware of circumstances giving rise or likely to give rise to any a claim made Claim against such Indemnified Person in respect of an 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 Indemnity Claiming Party to enable it to understand the grounds upon which the Claim is likely to indemnification may be based.
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the 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 sought pursuant to § 21.6(c)(i)this Section 12.01, the Indemnity Defaulting notify any other Party shall, subject from whom it seeks indemnity (“Indemnifying Party”) of any such Claim. No Indemnifying Party shall be obligated to providing the Indemnity Claiming Party with an indemnity against all costs and expenses that it may incur by reason of indemnify such action or proceeding, be entitled to dispute the Claim in the name of the Indemnified Person at the Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With with respect to any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the 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 Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the 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 if 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 on behalf of, the Indemnity Claiming Party; and
(III) the Indemnity Defaulting Party shall not admit any liability in respect of a Claim without the prior consent of the Indemnity Claiming Party.
(iv) The Indemnity Claiming Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 21.6(c)(ii);
(II) the Indemnity Defaulting Party Indemnified Person fails to notify the Indemnity Claiming Indemnifying Party of its intention to take conduct of thereof in accordance with 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 provisions of this § 21.6(cSection 12.01(b) which materially:
(a) increases in sufficient time to permit the liability or exposure of the Indemnity Claiming Indemnifying Party to the relevant Claim; or
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at defend against any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim and to the Indemnity Claiming Partymake a timely response thereto, and shall provide including any responsive motion or answer to the Indemnity Claiming Party all reasonable cooperationa complaint, access and assistance for the purposes of considering and resisting such claim.
(vi) If the Indemnity Claiming Party gives petition, notice or other legal, equitable or administrative process relating to 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:
but only insofar as such failure to notify the Indemnifying Party has actually resulted in material prejudice or damage to the Indemnifying Party. In case any Claim shall be made or brought against an Indemnified Person, the Indemnifying Party may, or if so requested by such Indemnified Person shall, assume the defense thereof with competent counsel of its selection to defend such Indemnified Person. In such circumstances, such Indemnified Person shall (Ii) at no cost or expense to such Indemnified Person, cooperate with the Indemnity Defaulting Indemnifying Party paying and provide the costs or expenses of Indemnifying Party with such information and assistance as the Indemnity Claiming Party, which were incurred by the Indemnity Claiming Indemnifying Party shall reasonably request in connection with any such Claim and (ii) at its own cost and expense (unless a conflict would exist if the Claim prior same counsel represented both the Indemnifying Party and the Indemnified Party or the Indemnified Party is or may be reasonably expected to be exposed to criminal liability, in which case the date on which Indemnifying Party shall pay the Indemnity Claiming Party gives any notice pursuant to § 21.6(c)(v); and
(II) the Indemnity Defaulting Party remaining liable cost and expense of separate counsel for the finally agreed or determined amount Indemnified Party), have the right to participate and be represented by counsel of losses, costs, charges, expenses and other liabilities arising in relation its own choice with respect to any 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 counselClaim.
(vii) If the Indemnity Defaulting Party pays to the Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) the amount paid to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.
Appears in 1 contract
Samples: Transmission Use and Capacity Exchange Agreement (Nv Energy, Inc.)
Conduct of Claims. 6.1 If either party (iin each case the “Notifying Party“) As becomes aware of any matter that may give rise to a claim against the other party (the “Recipient“) under this Agreement including without limitation a claim from any third party which constitutes or may constitute a Shared Liability or in respect of which the Recipient is or may be liable to indemnify the Notifying Party under this Agreement, notice of that fact (together with all details of the matter in question as are reasonably available) shall be given by the Notifying Party to the Recipient as soon as is reasonably practicable and (but in any event within twenty such period as will afford the Recipient reasonable opportunity of requiring the Notifying Party to lodge a timely appeal or response). Any failure to give such notice shall not affect the rights of the Notifying Party except to the extent that the rights or interests of the Recipient are prejudiced by such failure.
6.2 Other than in respect of a Shared Liability (20) Business Days after becoming aware which shall be dealt with in accordance with the provisions of circumstances giving rise Clause 6.4), without prejudice to the validity of the claim or likely alleged claim in question, the Notifying Party shall allow, and shall procure that any member of its Group allows, the Recipient and its accountants and professional advisers to investigate the matter or circumstance alleged to give rise to such claim and whether and to what extent any a claim made amount is payable in respect of an indemnified such claim and for such purpose the Notifying Party shall, and shall procure that all members of its Group shall, at the expense of the Recipient, take all such action and give all such information, documentation and assistance, including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents, books and records, as the Recipient or its accountants or professional advisers may reasonably request for the purposes of investigating the matter under this § 21.6 or circumstance alleged to give rise to such claim provided that ("Claim"), i) the non-defaulting Notifying Party ("Indemnity Claiming Party") shall give written notice not be obliged to breach any confidentiality obligations to which a member of that fact to the defaulting Party ("Indemnity Defaulting Party") together with such particulars as are reasonably required by the Indemnity Claiming Party to enable it to understand the grounds upon which the Claim its Group is likely to be based.
a party and (ii) Notwithstanding § 21.6(c)(ivthe Notifying Party shall not be obliged to take any action which would prejudice any legal privilege of which it is aware and which attaches to any documents. For the avoidance of doubt, the above provisions will require the Notifying Party to show to the Recipient or its advisers or accountants a document to which legal privilege attaches, if it is so shown on such constitutions as to confidentiality or otherwise which [•] that privilege is retained in that document.
6.3 If the claim in question is a result of or in connection with a claim by or liability to a third party (other than in respect of a Shared Liability) then:
6.3.1 no admission of liability shall be made by or § 21.6(c)(von behalf of the Notifying Party or any member of its Group and the claim shall not be compromised, disposed of or settled without the prior written consent of the Recipient (such consent not to be unreasonably withheld or delayed);
6.3.2 subject to Clauses 6.4 and 6.5, the Recipient shall be entitled at its own expense 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 thereof (including, without limitation, making counterclaims or other claims against third parties) in the name of and on behalf of the Notifying Party or any member of its Group concerned and to have the conduct of any related proceedings, negotiations or appeals; and
6.3.3 the Notifying Party 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 right to examine and copy or photograph any assets, accounts, documents, books and records, for the purpose of avoiding, disputing, denying, defending, resisting, appealing, postponing, settling, compromising or contesting any such claim, liability or adjudication as the Recipient or its professional advisers reasonably request provided that the Indemnity Defaulting Recipient shall indemnify the Notifying 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 Indemnity Claiming Party with an indemnity against all third party costs and expenses that it or any member of its Group may reasonably and properly incur as a result of the Recipient taking the actions described in Clause 6.3.2 and this Clause 6.3.3 and, if so required by the Notifying Party, shall provide a reasonable estimate of the costs and expenses that the Notifying Party may incur by reason as a result of taking such action or proceeding, be entitled to dispute as is then requested by the Claim in the name of the Indemnified Person at the Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the Claim and of any incidental negotiationsRecipient. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject Recipient agrees to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With respect to any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the Indemnity Claiming Notifying Party fully informed and consult with it about material elements (including as to the making progress of any payment or settlement) of such claim and the conduct of the Claim;defence thereof.
(II) the Indemnity Defaulting Party shall not bring the name of the Indemnity Claiming Party into disrepute by reason of:
(a) the Indemnity Defaulting Party's conduct of such Claim being below the standard 6.4 The parties agree that would have been pursued by a prudent defendant to 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 on behalf of, the Indemnity Claiming Party; and
(III) the Indemnity Defaulting Party shall not admit any liability proceedings in respect of any Shared Liability shall be conducted by such entity against whom or in whose name such Liability arises unless the parties agree in writing that a Claim without the prior consent member of the Indemnity Claiming Party.
(iv) other party’s Group would be in a better position to deal with such proceedings. The Indemnity Claiming Party 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) parties will so agree where the Indemnity Defaulting Party is not entitled to take conduct chances of the Claim in accordance with § 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 successfully negotiating a solution to the relevant Claim; or
(b) prejudices issue are more likely with one party than the Indemnity Claiming Party's position in defending the relevant Claim.
(v) other. The Indemnity Claiming Party provisions of Schedule 3 shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vi) If the 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 apply in respect of any such Claim, subject to:
(I) proceedings. If the Indemnity Defaulting Party paying the costs provisions of Clauses 4.1.1 or expenses of the Indemnity Claiming Party, which were incurred by the Indemnity Claiming Party in connection with the Claim prior 4.1.2 cease to apply due to the date on which the Indemnity Claiming Party gives any notice pursuant provisions of paragraph 1.1 of Schedule 2, this Clause 6 shall cease 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) the amount paid to the Indemnity Claiming Party by the Indemnity Defaulting Party apply in respect of the claim under relevant Liabilities.
6.5 The parties acknowledge that the relevant indemnity.M and B Group shall have conduct of (i) the Beer Tie Litigation; (ii) any claims in respect of the Beer Supply Indemnity; (iii) any claims in respect of the Brewers Leases; (iv) claims in respect of the Xxxx and Busters Leases; and (v) any Pensions Part-timers Claims. Clauses 6.3.2 and 6.3.3 shall apply to such matters.
Appears in 1 contract
Conduct of Claims. (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 a claim made in respect of an 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 Indemnity Claiming Party to enable it to understand the grounds upon which the Claim is likely to be based.
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the 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 Indemnity Claiming Party with an indemnity against all costs and expenses that it may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name of the Indemnified Person at the Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With respect to any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the 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 Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the 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 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 on behalf of, the Indemnity Claiming Party; and
(III) the Indemnity Defaulting Party shall not admit any liability in respect of a Claim without the prior consent of the Indemnity Claiming Party.
(iv) The Indemnity Claiming Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 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
(b) prejudices the Indemnity Claiming Party's Party position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vi) If the 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) the amount paid to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.indemnity.
Appears in 1 contract
Samples: Individual Power Purchase Agreement
Conduct of Claims. 22.1 If the Council or the CCG (ithe “Indemnified Party”) As becomes aware of any matter that may give rise to a claim under Clause 21 against the other (the “Indemnifying Party”), notice of that fact shall be given as soon as reasonably practicable possible to the Indemnifying Party.
22.2 The Indemnified Party shall give the Indemnifying Party the opportunity to have conduct of any relevant claim, and accordingly to defend or enact settlement of any such claim avoid, dispute, deny, defend, resist, appeal, compromise or contest any such claim or liability (including, without limitation, making counterclaims or other claims against third parties) in the name of and on behalf of the Indemnifying Party and to have the conduct of any related proceedings, negotiations or appeals, and in such circumstances it is agreed that no admission of liability shall be made by or on behalf of the Indemnified Party and any event within twenty (20) Business Days after becoming aware claim shall not be compromised, disposed of circumstances giving rise or likely settled without the consent of the Indemnifying Party. The Indemnifying Party may elect not to have conduct as aforesaid.
22.3 Without prejudice to the validity of the claim or alleged claim in question, and whether or not the Indemnifying Party has elected not to defend any such claim, each Partner shall allow the other and its professional advisors to investigate the matter or circumstance alleged to give rise to such claim and whether and to what extent any a claim made amount is payable in respect of an indemnified matter under this § 21.6 ("Claim")such claim, the non-defaulting Party ("Indemnity Claiming Party") and for such purpose shall give written notice of that fact to the defaulting Party ("Indemnity Defaulting Party") together with such particulars as are reasonably required by the Indemnity Claiming Party to enable it to understand the grounds upon which the Claim is likely to be based.
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the 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 shallgive, subject to providing the Indemnity Claiming Party with an indemnity against being paid all costs and expenses that it may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name of the Indemnified Person at the Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With respect , all such information and assistance, including access to premises and personnel, and the right to examine and copy or photograph any Claim conducted by assets, accounts, documents and records, as the Indemnity Defaulting Party pursuant other Partner or its professional advisors may reasonably request PROVIDED THAT nothing in this Clause 22.3 shall be construed as requiring either Partner to § 21.6(c)(ii):
(I) disclose any document or thing which is the Indemnity Defaulting Party shall keep the Indemnity Claiming Party fully informed and consult with it about material elements (including the making subject of any payment or settlement) of privilege. The Partner receiving the conduct of the Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the Indemnity Claiming Party into disrepute by reason of:
(a) the Indemnity Defaulting Party's conduct of same agrees to keep all such Claim being below the standard that would have been pursued by a prudent defendant information confidential and only to use it for 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 on behalf of, the Indemnity Claiming Party; and
(III) the Indemnity Defaulting Party shall not admit any liability in respect of a Claim without the prior consent of the Indemnity Claiming Partypurpose.
(iv) The Indemnity Claiming Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vi) If the 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) the amount paid to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.
Appears in 1 contract
Samples: Section 75 Agreement
Conduct of Claims. If the party with a right of indemnity under clause 26.15 or 26.16 (i“Indemnified Party”) As soon as reasonably practicable and in any event within twenty seeks, or may seek to be indemnified by the other party (20“Indemnifying Party”) Business Days after becoming aware of circumstances giving rise under clause 26.15 or likely to give rise to any a claim made 26.16 in respect of an indemnified matter under this § 21.6 a claim by any person of the kind described in sub-clause 26.15(a) or 26.16(a) as the case may be ("“Third Party Claim"”), the non-defaulting following will apply:
(a) The Indemnified Party ("Indemnity Claiming Party") shall will give written notice of that fact the Third Party Claim (including reasonable details) to the defaulting Indemnifying Party ("Indemnity Defaulting Party") together with such particulars as are reasonably required by and ensure that the Indemnity Claiming Indemnified Party to enable it to understand does not make any payment or admission of liability in respect of the grounds upon which the Claim is likely to be basedThird Party Claim.
(iib) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the Indemnity Defaulting The Indemnifying Party accepts that any liability resulting from any action or proceeding will be indemnified under § 21.6(a) (Indemnity) abovemay, on the giving of a notice by the Indemnity Claiming Party pursuant to § 21.6(c)(i)at its election, the Indemnity Defaulting Party shall, subject to providing the Indemnity Claiming Party with an indemnity against all costs and expenses that it may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name of the Indemnified Person at Party, but subject to prior consultation with the Indemnity Defaulting Party's own expense Indemnified Party and take conduct of any defence, dispute, compromise, or appeal so that the reputation of the Indemnified Party is not unfairly harmed, conduct all negotiations and defend any proceedings relating to the Third Party Claim. For this purpose, the Indemnified Party will make available to the Indemnifying Party all such information, books and records, and give such other co-operation (including making available employees as witnesses), as the Indemnifying Party may reasonably require for the purpose.
(c) If and for so long as the Indemnifying Party does not assume the defence of the Third Party Claim, the Indemnified Party will:
(i) keep the Indemnifying Party fully informed of the Indemnified Party’s progress in defending the Indemnified Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With respect to any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the 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 Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the 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 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 on behalf of, the Indemnity Claiming Partyrelated proceedings; and
(IIIii) at the Indemnity Defaulting Indemnifying Party’s request, consult with, and take account of the reasonable views of, the Indemnifying Party shall not admit so far as reasonably possible in the relevant Indemnified Party’s defence of the Third Party Claim and any liability in respect of a Claim related proceedings.
(d) The Indemnified Party will not, without the prior written consent of the Indemnity Claiming Indemnifying Party.
(iv) The Indemnity Claiming , settle the Third Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vie) If the Indemnity Claiming Indemnified Party gives any notice pursuant to § 21.6(c)(v) above, then the Indemnity Defaulting Party shall be released recovers from any liability under third party any indemnity amount to which a payment made by the Indemnifying Party to the Indemnified Party under this Agreement in respect of such Claimagreement relates, subject to:
the Indemnified Party will procure that the amount so recovered by the Indemnified Party (I) the Indemnity Defaulting Party paying the costs or expenses net of the Indemnity Claiming Partycost of recovery, 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) not exceeding the amount paid by the Indemnifying Party) will be reimbursed without delay to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.Indemnifying Party.
Appears in 1 contract
Samples: Use of System Agreement
Conduct of Claims. 8.1 If a Party (i“Party A”) As soon becomes aware of any actual or threatened claim against it by any third party as reasonably practicable and a result of the acts or omissions of the other Party (“Party B”) in any event connection with this Agreement (“Third Party Claim”) it shall inform Party B within twenty (20) 5 Business Days after becoming aware from the day on which such Third Party Claim comes to the notice of circumstances giving rise or likely Party A.
8.2 Provided Party B is secured to give rise to any a claim made its reasonable satisfaction in respect of an indemnified any Charges incurred by it as a consequence of any actions taken at Party A’s request in accordance with this Clause 8.1:
8.2.1 Party B shall take such action and give such information and assistance as Party A may reasonably request in writing in responding to, and resolving, any Third Party Claim and to appeal against any judgment given in that respect;
8.2.2 where any legal proceedings of whatsoever nature (“Proceedings”) are initiated in respect of the Third Party Claim, Party A shall keep Party B fully and promptly informed of the Proceedings, shall consult Party B on any matter under this § 21.6 ("Claim")which is, 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 Indemnity Claiming Party to enable it to understand the grounds upon which the Claim or is likely to be based.
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) be, material in relation to any Proceedings and provided that the 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 shall take account of a notice by the Indemnity Claiming Party pursuant to § 21.6(c)(i), the Indemnity Defaulting Party shall, subject to providing the Indemnity Claiming Party with an indemnity against all costs and expenses that it may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name of the Indemnified Person at the Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of the Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes requirements of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With respect to any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the 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 Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the 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 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 on behalf of, the Indemnity Claiming Party; and
(III) the Indemnity Defaulting Party shall not admit any liability in respect of a Claim without the prior consent of the Indemnity Claiming Party.
(iv) The Indemnity Claiming Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vi) If the 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 B 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the sameProceedings; and
(II) the amount paid to the Indemnity Claiming 8.2.3 Party A shall not do anything in connection with a Third Party Claim and/or Proceedings that may prejudice Party B, without first consulting Party B and taking due account of Party B’s reasonable views.
8.3 If Party A becomes aware of any other claim by the Indemnity Defaulting Party in respect a third party which is not as a result of the claim under the relevant indemnity.acts or omissions of Party B, it shall notify Party B and provide such information to Party B as would be reasonably necessary for Party B to assess its exposure in relation to that claim.
Appears in 1 contract
Samples: Framework Agreement for Procurement of Legal Services
Conduct of Claims. If the party with a right of indemnity under clause 26.16 or 26.17 (i“Indemnified Party”) As soon as reasonably practicable and in any event within twenty seeks, or may seek to be indemnified by the other party (20“Indemnifying Party”) Business Days after becoming aware of circumstances giving rise under clause 26.16 or likely to give rise to any a claim made 26.17 in respect of an indemnified matter under this § 21.6 a claim by any person of the kind described in sub-clause ("a) of such clauses (“Third Party Claim"”), the non-defaulting following will apply:
(a) The Indemnified Party ("Indemnity Claiming Party") shall will give written notice of that fact the Third Party Claim (including reasonable details) to the defaulting Indemnifying Party ("Indemnity Defaulting Party") together with such particulars as are reasonably required by and ensure that the Indemnity Claiming Indemnified Party to enable it to understand does not make any payment or admission of liability in respect of the grounds upon which the Claim is likely to be basedThird Party Claim.
(iib) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the Indemnity Defaulting The Indemnifying Party accepts that any liability resulting from any action or proceeding will be indemnified under § 21.6(a) (Indemnity) abovemay, on the giving of a notice by the Indemnity Claiming Party pursuant to § 21.6(c)(i)at its election, the Indemnity Defaulting Party shall, subject to providing the Indemnity Claiming Party with an indemnity against all costs and expenses that it may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name of the Indemnified Person at Party, but subject to prior consultation with the Indemnity Defaulting Party's own expense Indemnified Party and take conduct of any defence, dispute, compromise, or appeal so that the reputation of the Indemnified Party is not unfairly harmed, conduct all negotiations and defend any proceedings relating to the Third Party Claim. For this purpose, the Indemnified Party will make available to the Indemnifying Party all such information, books and records, and give such other co-operation (including making available employees as witnesses), as the Indemnifying Party may reasonably require for the purpose.
(c) If and for so long as the Indemnifying Party does not assume the defence of the Third Party Claim, the Indemnified Party will:
(i) keep the Indemnifying Party fully informed of the Indemnified Party’s progress in defending the Indemnified Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With respect to any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the 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 Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the 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 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 on behalf of, the Indemnity Claiming Partyrelated proceedings; and
(IIIii) at the Indemnity Defaulting Indemnifying Party’s request, consult with, and take account of the reasonable views of, the Indemnifying Party shall not admit so far as reasonably possible in the relevant Indemnified Party’s defence of the Third Party Claim and any liability in respect of a Claim related proceedings.
(d) The Indemnified Party will not, without the prior written consent of the Indemnity Claiming Indemnifying Party.
(iv) The Indemnity Claiming , settle the Third Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vie) If the Indemnity Claiming Indemnified Party gives any notice pursuant to § 21.6(c)(v) above, then the Indemnity Defaulting Party shall be released recovers from any liability under third party any indemnity amount to which a payment made by the Indemnifying Party to the Indemnified Party under this Agreement in respect of such Claimagreement relates, subject to:
the Indemnified Party will procure that the amount so recovered by the Indemnified Party (I) the Indemnity Defaulting Party paying the costs or expenses net of the Indemnity Claiming Partycost of recovery, 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) not exceeding the amount paid by the Indemnifying Party) will be reimbursed without delay to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.Indemnifying Party.
Appears in 1 contract
Samples: Use of System Agreement
Conduct of Claims. (i1) 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 Whenever a claim made in respect of an indemnified matter for indemnification shall arise under this § 21.6 Section 17, the party seeking indemnification (the "ClaimIndemnified Party"), shall notify the non-defaulting Party party from whom such indemnification is sought (the "Indemnity Claiming Indemnifying 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 Indemnity Claiming Party to enable it to understand the grounds upon which the Claim is likely to be based.
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the 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 Indemnity Claiming Party with an indemnity against all costs and expenses that it may incur by reason of such action or proceeding, be entitled to dispute the Claim in the name writing of the Indemnified Person at Proceeding and the Indemnity Defaulting Party's own expense and take conduct of any defence, dispute, compromise, or appeal of facts constituting the Claim and of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all basis for such claim in reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expenses.
(iii) With respect to any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the 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 Claimdetail;
(II2) Upon delivery of such notice, such Indemnified Party shall have a duty to take all reasonable steps to mitigate any losses, liabilities, costs, charges and expenses relating to any such Proceeding;
(3) Such Indemnifying Party shall have the Indemnity Defaulting 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 Indemnity Claiming Party into disrepute by reason of:
(arelevant Indemnified Party) the Indemnity Defaulting Party's conduct of such Claim being below the standard that would have been pursued by a prudent defendant also be counsel to such Claim advised by skilled Indemnified Party. In no event shall the Indemnifying Party be liable for fees and experienced expenses of more than one counsel (in addition to any local counsel; or
(b) statements made by separate from its own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the Indemnity Defaulting Party regarding (other than to same jurisdiction arising out of the extent that any such statements regarding the Buyer are established as a matter of fact), same general allegations or on behalf of, the Indemnity Claiming Partycircumstances; and
(III4) No Indemnifying Party shall, without the Indemnity Defaulting Party prior written consent of the Indemnified Parties (which consent shall not admit be unreasonably withheld), settle or compromise or consent to the entry of any liability judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of a Claim without the prior consent of the Indemnity Claiming Party.
(iv) The Indemnity Claiming Party shall which indemnification could be free to pay or settle any Claim on such terms as it thinks fit and without prejudice to its rights and remedies sought under this Agreement if:
(I) the Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at any time to give notice to the Indemnity Defaulting Party that it is retaining or taking over (as the case may be) the conduct of any defence, disputeSection unless such settlement, compromise or appeal of any Claim consent (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vi) If the 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)(vA); 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) the amount paid to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.
Appears in 1 contract
Conduct of Claims. 12.11.1. When a person (i“Indemnified Person”) As has the benefit of an Indemnity in respect of any Claim pursuant to the Contract, the Indemnified Person must give written notice to the Party giving the Indemnity (“Indemnifying Party”) of the nature and, to the extent reasonably known at the time, quantum of the Claim as soon as reasonably practicable and in any event within twenty (20) Business Days after becoming aware the commencement of the circumstances giving rise or likely to give rise the Claim. Any such Claim is not to be settled without the approval of the Indemnifying Party. After it has been notified of any a claim made in respect of an indemnified matter under this § 21.6 ("such Claim"), the non-defaulting Indemnifying Party ("Indemnity Claiming Party") shall give written notice of that fact assume the defense thereof, at its sole expense.
12.11.2. The Indemnified Person must provide reasonable information and documentation relating to such Claim to the defaulting Indemnifying Party ("Indemnity Defaulting Party") together with such particulars as are reasonably required by the Indemnity Claiming Party to enable it to understand the grounds upon which the Claim is likely to be basedon a continuing basis.
(ii) Notwithstanding § 21.6(c)(iv) or § 21.6(c)(v) and provided that the 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 12.11.3. Upon service of a notice by the Indemnity Claiming Party pursuant to § 21.6(c)(i)Indemnified Person, the Indemnity Defaulting Indemnifying Party shall, subject to providing the Indemnity Claiming Party with an indemnity against all costs and expenses that it may incur by reason of such action or proceeding, be entitled to dispute the must defend any Claim in the name on behalf of the Indemnified Person and the Indemnified Person must, at the Indemnity Defaulting Indemnifying Party's ’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 and take conduct 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 defencesuch Claim, disputeis the subject of a bona fide dispute by the Indemnifying Party, compromisethe Indemnifying Party must pay the Indemnified Person in respect of the Claim within 30 days of a demand for payment of the Claim.
12.11.5. When a Claim by an Indemnified Person is the subject of a bona fide dispute by the Indemnifying Party, or appeal the Indemnifying Party must pay to the Indemnified Person the undisputed amount within 30 days of a demand for payment of the Claim and the remainder within 30 days of any incidental negotiations. The Indemnity Claiming Party shall give the Indemnity Defaulting Party all reasonable cooperation, access and assistance for resolution of the purposes of considering and resisting such Claim, subject to the Indemnity Defaulting Party paying the Indemnity Claiming Party's reasonable costs and expensesdispute.
(iii) With respect 12.11.6. An Indemnified Person must do all things reasonably necessary to mitigate any Claim conducted by the Indemnity Defaulting Party pursuant to § 21.6(c)(ii):
(I) the Indemnity Defaulting Party shall keep the 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 Claim;
(II) the Indemnity Defaulting Party shall not bring the name of the 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 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 on behalf of, the Indemnity Claiming Party; and
(III) the Indemnity Defaulting Party shall not admit any liability in respect of a Claim without the prior consent of the Indemnity Claiming Party.
(iv) The Indemnity Claiming Party 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 Indemnity Defaulting Party is not entitled to take conduct of the Claim in accordance with § 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
(b) prejudices the Indemnity Claiming Party's position in defending the relevant Claim.
(v) The Indemnity Claiming Party shall be free at any time to give notice to the 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 (or of any incidental negotiations) to which § 21.6(c)(ii) applies. On receipt of such notice the Indemnity Defaulting Party shall promptly take all steps necessary to transfer the conduct of such Claim to the Indemnity Claiming Party, and shall provide to the Indemnity Claiming Party all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(vi) If the 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 Indemnity Claiming Party an amount in respect of an indemnity under this Agreement and the 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 under the indemnity, the Indemnity Claiming Party shall as soon as reasonably practicable repay to the Indemnity Defaulting Party the lesser of:
(I) 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 properly incurred by the Indemnity Claiming Party in recovering the same; and
(II) the amount paid to the Indemnity Claiming Party by the Indemnity Defaulting Party in respect of the claim under the relevant indemnity.
Appears in 1 contract
Samples: Services Agreement