Common use of Defence of Claims Clause in Contracts

Defence of Claims. In connection with any claim that may give rise to indemnity under Section 10.1 resulting from or arising out of any claim or Proceeding against an Indemnitee by a Person that is not a party hereto, the Indemnifying Party may (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice to the relevant Indemnitee, assume the defence of any such claim or Proceeding if all Indemnifying Parties with respect to such claim or Proceeding jointly acknowledge to the Indemnitee the Indemnitee’s right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provide assurances, satisfactory to such Indemnitee, that the Indemnifying Parties will be financially able to satisfy such claim in full if such claim or Proceeding is decided adversely. If the Indemnifying Parties assume the defence of any such claim or Proceeding, the Indemnifying Parties shall select counsel reasonably acceptable to such Indemnitee to conduct the defence of such claim or Proceeding, shall take all steps necessary in the defence or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Parties shall have assumed the defence of any claim or Proceeding in accordance with this Section 10.4, the Indemnifying Parties shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, without the prior written consent of such Indemnitee; provided, however, that the Indemnifying Parties shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof, that the Indemnifying Parties shall not be authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that would apply to any Indemnitee or to its conduct of business; and provided, further, that a condition to any such settlement shall be a complete release of such Indemnitee and its Affiliates, officers, employees, consultants and agents with respect to such claim. Such Indemnitee shall be entitled to participate in (but not control) the defence of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, Associates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Parties in the defence of any claim or Proceeding being defended by the Indemnifying Parties pursuant to this Section 10.4. If the Indemnifying Parties do not assume the defence of any claim or Proceeding resulting therefrom in accordance with the terms of this Section 10.4, such Indemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or Proceeding after giving notice of the same to the Indemnifying Parties, on such terms as such Indemnitee may deem appropriate. If any Indemnifying Party seeks to question the manner in which such Indemnitee defended such claim or proceeding or the amount of or nature of any such settlement, such Indemnifying Party shall have the burden to prove by a preponderance of the evidence that such Indemnitee did not defend such claim or Proceeding in a reasonably prudent manner. The final determination of any such claim pursuant to this Section 10.4, including all related costs and expenses, shall be binding and conclusive upon the parties as to the validity or invalidity, as the case may be, of such claim against the Indemnifying Party.

Defence of Claims. In connection with any claim that may give rise The Company shall be entitled to indemnity under Section 10.1 resulting from or arising out of any claim or Proceeding against an Indemnitee by a Person that is not a party hereto, the Indemnifying Party may (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice to the relevant Indemnitee, assume participate in the defence of any such claim Indemnifiable Claim or Proceeding if all Indemnifying Parties to assume the defence thereof, with respect to such claim or Proceeding jointly acknowledge counsel reasonably satisfactory to the Indemnitee; provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the Indemnitee’s right use of counsel chosen by the Company to indemnity pursuant hereto represent Indemnitee would present such counsel with an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee shall conclude that there may be one or more legal defences available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee shall be entitled to retain separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the entirety of such claim (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provide assurances, satisfactory Company’s expense. The Company shall not be liable to such Indemnitee, that the Indemnifying Parties will be financially able to satisfy such claim Indemnitee under this Agreement for any amounts paid in full if such claim or Proceeding is decided adversely. If the Indemnifying Parties assume the defence settlement of any such claim threatened or Proceeding, pending Indemnifiable Claim effected without the Indemnifying Parties Company’s prior written consent. The Company shall select counsel reasonably acceptable to such Indemnitee to conduct the defence of such claim or Proceeding, shall take all steps necessary in the defence or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Parties shall have assumed the defence of any claim or Proceeding in accordance with this Section 10.4, the Indemnifying Parties shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceedingnot, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which the Indemnitee is, or could have been, a party unless such Indemnitee; provided, however, settlement solely involves the payment of money and includes a complete and unconditional release of the Indemnitee from all liability on any claims that are the Indemnifying Parties shall pay or cause to be paid all amounts arising out subject matter of such settlement or judgment concurrently with Indemnifiable Claim. Neither the effectiveness thereof, that the Indemnifying Parties Company nor Indemnitee shall not be authorized to encumber any of the assets of any Indemnitee or to agree unreasonably withhold its consent to any restriction proposed settlement; provided that would apply Indemnitee may withhold consent to any Indemnitee or to its conduct of business; and provided, further, settlement that a condition to any such settlement shall be does not provide a complete and unconditional release of such Indemnitee and its Affiliates, officers, employees, consultants and agents with respect to such claim. Such Indemnitee shall be entitled to participate in (but not control) the defence of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, Associates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Parties in the defence of any claim or Proceeding being defended by the Indemnifying Parties pursuant to this Section 10.4. If the Indemnifying Parties do not assume the defence of any claim or Proceeding resulting therefrom in accordance with the terms of this Section 10.4, such Indemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or Proceeding after giving notice of the same to the Indemnifying Parties, on such terms as such Indemnitee may deem appropriate. If any Indemnifying Party seeks to question the manner in which such Indemnitee defended such claim or proceeding or the amount of or nature of any such settlement, such Indemnifying Party shall have the burden to prove by a preponderance of the evidence that such Indemnitee did not defend such claim or Proceeding in a reasonably prudent manner. The final determination of any such claim pursuant to this Section 10.4, including all related costs and expenses, shall be binding and conclusive upon the parties as to the validity or invalidity, as the case may be, of such claim against the Indemnifying PartyIndemnitee.

Defence of Claims. In connection with any claim that may give rise to indemnity under Section 10.1 resulting from or arising out (a) Promptly after receipt by a Counterparty Indemnitee of any claim or Proceeding against an Indemnitee notice of the commencement of any action, administrative or legal proceeding, or investigation by a Person that is not other than a party heretoCounterparty Indemnitee as to which indemnity provided for in Sections 2.9(b) or 13.3 may apply, and promptly after receipt by a Generator Indemnitee of any claim or notice of the commencement of any action, administrative or legal proceeding, or investigation by a Person other than a Generator Indemnitee as to which an indemnity provided for in Section 2.6 may apply, the Counterparty, in the case of a Counterparty Indemnitee, or the applicable Generator, in the case of a Generator Indemnitee, shall notify the Party (the “Indemnifying Party may (unless such Indemnitee elects not to seek Party”) that has provided an indemnity hereunder for such claim), upon written notice to the relevant Indemnitee, assume the defence of any such claim or Proceeding if all Indemnifying Parties with respect to such claim or Proceeding jointly acknowledge to the Indemnitee the Indemnitee’s right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provide assurances, satisfactory to such Indemnitee, that the Indemnifying Parties will be financially able to satisfy such claim in full if such claim or Proceeding is decided adversely. If the Indemnifying Parties assume the defence of any such claim or Proceeding, the Indemnifying Parties shall select counsel reasonably acceptable to such Indemnitee to conduct the defence in writing of such fact, but in any event such notice shall not be given later than twenty days (20) after such Indemnitee’s receipt of such claim or Proceeding, shall take all steps necessary in the defence or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Parties shall have assumed notice unless provision of such notice later after such twenty (20) days does not prejudice the defence of any claim the claim. Such notice shall describe the nature of the action, proceeding or Proceeding investigation in accordance reasonable detail and shall indicate the amount or, if the amount is not then determinable, an appropriate and reasonable estimate of the potential amount of the Indemnifiable Loss that has been or may be sustained by the Indemnitees. The Indemnifying Party shall assume the defence thereof with this Section 10.4, counsel designated by the Indemnifying Parties shall be authorized Party and satisfactory to consent to a settlement ofthe affected Indemnitees, or the entry of any judgment arising from, any such claim or Proceeding, without the prior written consent of such Indemniteeacting reasonably; provided, however, that if the defendants (including any added third or impleaded party) in any such action include both the Indemnitees (or any of them) and the Indemnifying Parties Party and the Indemnitees shall pay have reasonably concluded that there may be legal defences available to them which are different from or cause additional to, or inconsistent with, those available to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof, that the Indemnifying Parties Party, the Indemnitees shall not be authorized have the right to encumber any of select separate counsel satisfactory to the assets of any Indemnitee or to agree to any restriction that would apply to any Indemnitee or to its conduct of business; and providedIndemnifying Party, furtheracting reasonably, that a condition to any such settlement shall be a complete release of such Indemnitee and its Affiliates, officers, employees, consultants and agents with respect to such claim. Such Indemnitee shall be entitled to participate in (but not control) the defence of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, Associates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Parties in the defence of any claim or Proceeding being defended by such action on behalf of the Indemnitees and the Indemnifying Parties pursuant Party shall be liable to this Section 10.4pay the reasonable fees and disbursements of such separate counsel. If not represented by separate counsel, the Indemnitees shall cooperate in good faith with the Indemnifying Parties do not assume the Party in defence of any claim or Proceeding resulting therefrom in accordance with the terms of this Section 10.4action, such Indemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or Proceeding after giving notice of the same to the Indemnifying Parties, on such terms as such Indemnitee may deem appropriate. If any Indemnifying Party seeks to question the manner in which such Indemnitee defended such claim or proceeding or investigation at the amount expense of or nature of any such settlement, such Indemnifying Party shall have the burden to prove by a preponderance of the evidence that such Indemnitee did not defend such claim or Proceeding in a reasonably prudent manner. The final determination of any such claim pursuant to this Section 10.4, including all related costs and expenses, shall be binding and conclusive upon the parties as to the validity or invalidity, as the case may be, of such claim against the Indemnifying Party, but without charging the Indemnifying Party for the time incurred by such Indemnitees attributable to such cooperation.

Defence of Claims. In Without prejudice to the provisions of this Clause 14, the Sub-Lessee shall (subject to having first obtained the consent of the relevant insurers, if any, and complying in all respects with its obligations under this Sub-Lease and provided no Termination Event has occurred and is continuing) be entitled to take (at its own cost) such actions as the Sub-Lessee reasonably considers necessary to defend or avoid any liability arising in respect of a Liability including legal proceedings against any third party in respect of a Liability, but subject always to the Sub-Lessor first being indemnified to its satisfaction by the Sub-Lessee and/or the Guarantor against all potential losses, costs, damages and expenses which may be incurred or suffered by the Sub-Lessor in connection with any claim such action, provided always that may give rise the Sub-Lessee shall not be entitled to indemnity under Section 10.1 resulting from take any such action and shall cease taking such action and shall settle any Liability if the Sub-Lessor considers (in its reasonable opinion) that taking or arising out of continuing such action would be likely to (i) require the Sub-Lessor to disclose any claim information or Proceeding against an Indemnitee by documentation which the Sub-Lessor considers, in its reasonable opinion, to be confidential (ii) be harmful to the Sub-Lessor's reputation as a Person financial institution, (iii) involve it in any unlawful act or activity or any act or activity that is not a party heretocontrary to any law applicable to the Sub-Lessor or (iv) cause the Sub-Lessor to breach any other obligation to which it is subject whether under the Lease Documents or otherwise. Notwithstanding the foregoing provisions of this Clause 14.4, the Indemnifying Party may (unless such Indemnitee elects Sub-Lessee shall not be entitled to seek indemnity hereunder for such claim), upon written notice to take or continue any action in the relevant Indemnitee, assume the defence of any such claim or Proceeding if all Indemnifying Parties with respect to such claim or Proceeding jointly acknowledge to the Indemnitee the Indemnitee’s right to indemnity pursuant hereto in respect name of the entirety of such claim (as such claim Sub-Lessor which it may have been modified through written agreement of the parties or arbitration hereunder) and provide assurances, satisfactory otherwise be entitled to such Indemnitee, that the Indemnifying Parties will be financially able to satisfy such claim in full if such claim or Proceeding is decided adversely. If the Indemnifying Parties assume the defence of any such claim or Proceeding, the Indemnifying Parties shall select counsel reasonably acceptable to such Indemnitee to conduct the defence of such claim or Proceeding, shall take all steps necessary in the defence or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Parties shall have assumed the defence of any claim or Proceeding in accordance with under this Section 10.4, the Indemnifying Parties shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, Clause 14.4 without the prior written consent of the Sub-Lessor, such Indemnitee; providedconsent not to be unreasonably withheld or withdrawn, however, provided always that it shall be reasonable for the Sub-Lessor to withhold its consent or withdraw its consent once given if the Sub-Lessor determines that the Indemnifying Parties shall pay or cause use of its name in connection with such action would be likely to (a) be harmful to the Sub-Lessor Parent's reputation as a financial institution (such determination to be paid all amounts arising out of such settlement made in the Sub-Lessor's absolute discretion) or judgment concurrently with (b) (i) otherwise have a material adverse effect on the effectiveness thereof, that the Indemnifying Parties shall not be authorized to encumber any business of the assets of Sub-Lessor or (ii) involve the Sub-Lessor in any Indemnitee unlawful act or to agree activity or any act or activity that is contrary to any restriction that would apply law applicable to the Sub-Lessor or (iii) cause the Sub-Lessor to breach any Indemnitee other obligation to which it is subject whether under the Lease Documents or to its conduct of business; and provided, further, that a condition to otherwise (any such settlement shall determination to be a complete release of such Indemnitee and its Affiliates, officers, employees, consultants and agents with respect to such claim. Such Indemnitee shall be entitled to participate in (but not control) the defence of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, Associates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Parties made in the defence of any claim or Proceeding being defended by the Indemnifying Parties pursuant to this Section 10.4. If the Indemnifying Parties do not assume the defence of any claim or Proceeding resulting therefrom in accordance with the terms of this Section 10.4, such Indemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or Proceeding after giving notice reasonable opinion of the same to the Indemnifying Parties, on such terms as such Indemnitee may deem appropriate. If any Indemnifying Party seeks to question the manner in which such Indemnitee defended such claim or proceeding or the amount of or nature of any such settlement, such Indemnifying Party shall have the burden to prove by a preponderance of the evidence that such Indemnitee did not defend such claim or Proceeding in a reasonably prudent manner. The final determination of any such claim pursuant to this Section 10.4, including all related costs and expenses, shall be binding and conclusive upon the parties as to the validity or invalidity, as the case may be, of such claim against the Indemnifying PartySub-Lessor)).

Defence of Claims. In connection with The Indemnified Party shall have the right, but not the obligation, to contest, defend and litigate any claim that may give rise claim, action, suit or proceeding by any third party alleged or asserted against such party in respect of, resulting from, related to indemnity under Section 10.1 resulting from or arising out of any claim or Proceeding against an Indemnitee matter for which it is entitled to be indemnified hereunder and their reasonable costs and expenses shall be indemnified by a Person that is not a party heretothe Indemnifying Party. If the Indemnifying Party acknowledges in writing its obligation to indemnify the person indemnified in respect of loss to the full extent provided by this Clause 35, the Indemnifying Party may (unless such Indemnitee elects not shall be entitled, at its option, to seek indemnity hereunder for such claim), upon written notice to the relevant Indemnitee, assume the defence of any such claim or Proceeding if all Indemnifying Parties with respect to such claim or Proceeding jointly acknowledge to the Indemnitee the Indemnitee’s right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provide assurances, satisfactory to such Indemnitee, that the Indemnifying Parties will be financially able to satisfy such claim in full if such claim or Proceeding is decided adversely. If the Indemnifying Parties assume the defence of any such claim or Proceeding, the Indemnifying Parties shall select counsel reasonably acceptable to such Indemnitee to conduct control the defence of such claim claim, action, suit or Proceedingproceeding liabilities, shall take all steps necessary in payments and obligations at its expense and through counsel of its choice provided it gives prompt notice of its intention to do so to the defence or settlement thereof Indemnified Party and shall at all times diligently reimburses the Indemnified Party for the reasonable cost and promptly pursue expenses, if any, incurred by the resolution thereof. If Indemnified Party prior to the assumption by the Indemnifying Parties Party of such defence. The Indemnifying Party shall have assumed the defence of not be entitled to settle or compromise any claim claim, action, suit or Proceeding in accordance with this Section 10.4, the Indemnifying Parties shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, proceeding without the prior written consent of such Indemnitee; provided, however, that the Indemnified Party unless the Indemnifying Parties Party provides such security to the Indemnified Party as shall pay or cause be reasonably required by the Indemnified Party to secure the loss to be paid all amounts arising out of such settlement indemnified hereunder to the extent so compromised or judgment concurrently with the effectiveness thereof, that the Indemnifying Parties shall not be authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that would apply to any Indemnitee or to its conduct of business; and provided, further, that a condition to any such settlement shall be a complete release of such Indemnitee and its Affiliates, officers, employees, consultants and agents with respect to such claim. Such Indemnitee shall be entitled to participate in (but not control) the defence of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, Associates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Parties in the defence of any claim or Proceeding being defended by the Indemnifying Parties pursuant to this Section 10.4settled. If the Indemnifying Parties do Party has exercised its rights under Clause 35.3, the Indemnified Party shall not assume be entitled to settle or compromise any claim, action, suit or proceeding without the defence prior written consent of any claim the Indemnifying Party (which consent shall not be unreasonably withheld or Proceeding resulting therefrom in accordance with delayed). If the terms of this Section 10.4Indemnifying Party exercises its rights under Clause 35.3, the Indemnified Party shall nevertheless have the right to employ its own counsel, and such Indemnitee counsel may defend against such claim or Proceeding participate in such manner as it may deem appropriateaction, including settling but the fees and expenses of such claim or Proceeding after giving notice counsel shall be at the expense of the same to the Indemnifying PartiesIndemnified Party, on such terms when and as such Indemnitee may deem appropriate. If any Indemnifying Party seeks to question the manner in which such Indemnitee defended such claim or proceeding or the amount of or nature of any such settlementincurred, such Indemnifying Party shall have the burden to prove by a preponderance of the evidence that such Indemnitee did not defend such claim or Proceeding in a reasonably prudent manner. The final determination of any such claim pursuant to this Section 10.4, including all related costs and expenses, shall be binding and conclusive upon the parties as to the validity or invalidity, as the case may be, of such claim against the Indemnifying Party.unless:

Defence of Claims. In connection with The Indemnified Party covenants and agrees that, upon becoming aware of any claim that facts or circumstances which may give rise to indemnity under Section 10.1 resulting from or arising out any potential liability for which TransAlta would be required to indemnify the Indemnified Party pursuant to the provisions of any claim or Proceeding against an Indemnitee by this Agreement (a Person that is not a party hereto"Claim"), the Indemnifying Indemnified Party may (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon shall immediately deliver written notice to TransAlta setting out in reasonable detail the relevant Indemnitee, assume nature of the defence of any such claim or Proceeding if all Indemnifying Parties with respect facts relating to such claim Claim. If any Claim is made or Proceeding jointly acknowledge brought against the Indemnified Party in connection with any of the matters against which the Indemnified Party would be indemnified pursuant to this Agreement, upon receipt of the Indemnitee notice of the Indemnitee’s right to indemnity pursuant hereto Claim, and subject in respect of an action referred to in Section 3(b), the entirety approval of the relevant Court, TransAlta shall, at its expense and in a timely manner, contest and defend against any such Claim and take all such steps as may be necessary or proper to prevent the resolution thereof in a manner adverse to the Indemnified Party. The Indemnified Party shall fully cooperate with TransAlta in taking all such steps, and hereby consents to the taking of such claim (as such claim may have been modified through written agreement steps by TransAlta. If TransAlta does not in a timely manner undertake the contestation or defence of the parties Claim, the Indemnified Party may do so and, subject to, in respect of an action referred to in Section 3(b), the approval of the relevant Court, such contestation or arbitration hereunder) defence shall be at the expense and provide assurancesrisk of TransAlta provided that if the outcome of any civil, satisfactory to such Indemniteecriminal, administrative, investigative or other proceeding establishes that the Indemnifying Parties will be financially able Indemnified Party was not entitled to satisfy such claim in full if such claim contest or Proceeding is decided adversely. If defend the Indemnifying Parties assume Claim at the defence risk and expense of any such claim or Proceeding, TransAlta the Indemnifying Parties shall select counsel reasonably acceptable to such Indemnitee to conduct the defence of such claim or Proceeding, shall take all steps necessary in the defence or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Parties shall have assumed the defence of any claim or Proceeding in accordance with this Section 10.4, the Indemnifying Parties Indemnified Party shall be authorized liable to consent repay to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, without the prior written consent of such Indemnitee; provided, however, that the Indemnifying Parties shall pay or cause to be paid TransAlta all amounts arising out of paid by TransAlta in connection with such settlement contestation or judgment concurrently with the effectiveness thereof, that the Indemnifying Parties shall not be authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that would apply to any Indemnitee or to its conduct of business; and provided, further, that a condition to any such settlement shall be a complete release of such Indemnitee and its Affiliates, officers, employees, consultants and agents with respect to such claim. Such Indemnitee shall be entitled to participate in (but not control) the defence of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, Associates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Parties in the defence of any claim or Proceeding being defended by the Indemnifying Parties pursuant to this Section 10.4. If the Indemnifying Parties do not assume the defence of any claim or Proceeding resulting therefrom in accordance with the terms of this 9 and Section 10.4, such Indemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or Proceeding after giving notice of the same to the Indemnifying Parties, on such terms as such Indemnitee may deem appropriate. If any Indemnifying Party seeks to question the manner in which such Indemnitee defended such claim or proceeding or the amount of or nature of any such settlement, such Indemnifying Party shall have the burden to prove by a preponderance of the evidence that such Indemnitee did not defend such claim or Proceeding in a reasonably prudent manner. The final determination of any such claim pursuant to this Section 10.4, including all related costs and expenses, shall be binding and conclusive upon the parties as to the validity or invalidity, as the case may be, of such claim against the Indemnifying Party3(e).

Defence of Claims. In connection with any claim that may give rise to indemnity under Section 10.1 resulting from or arising out (a) Promptly after receipt by the Indemnitees of any claim Claim or Proceeding against an Indemnitee by a Person that is not a party heretonotice of the commencement of any action, administrative or legal proceeding, or investigation as to which the indemnity provided for in Section 14.3 may apply, the Indemnifying Party may (unless Buyer shall notify the Supplier in writing of such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice to the relevant Indemnitee, fact. The Supplier shall assume the defence of any such claim or Proceeding if all Indemnifying Parties thereof with respect to such claim or Proceeding jointly acknowledge counsel designated by the Supplier and satisfactory to the Indemnitee the Indemnitee’s right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provide assurancesaffected Indemnitees, satisfactory to such Indemnitee, that the Indemnifying Parties will be financially able to satisfy such claim in full if such claim or Proceeding is decided adversely. If the Indemnifying Parties assume the defence of any such claim or Proceeding, the Indemnifying Parties shall select counsel reasonably acceptable to such Indemnitee to conduct the defence of such claim or Proceeding, shall take all steps necessary in the defence or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Parties shall have assumed the defence of any claim or Proceeding in accordance with this Section 10.4, the Indemnifying Parties shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, without the prior written consent of such Indemniteeacting reasonably; provided, however, that if the Indemnifying Parties shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof, that the Indemnifying Parties shall not be authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that would apply to any Indemnitee or to its conduct of business; and provided, further, that a condition to defendants in any such settlement action include both the Indemnitees and the Supplier and the Indemnitees shall have reasonably concluded that there may be a complete release of such Indemnitee and its Affiliateslegal defences available to them which are different from or additional to, officersor inconsistent with, employeesthose available to the Supplier, consultants and agents with respect the Indemnitees shall have the right to such claim. Such Indemnitee shall be entitled select separate counsel satisfactory to the Supplier acting reasonably (at no additional cost to the Indemnitees) to participate in (but not control) the defence of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, Associates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Parties in the defence of such action on behalf of the Indemnitees. The Supplier shall promptly confirm that it is assuming the defence of the Indemnitees by providing written notice to the Indemnitees. Such notice shall be provided no later than five (5) days prior to the deadline for responding to any claim or Proceeding being defended Claim relating to any Indemnifiable Loss.‌‌‌ (b) Should any of the Indemnitees be entitled to indemnification under Section 14.3 as a result of a Claim by a third party, and the Indemnifying Parties pursuant Supplier fails to this Section 10.4. If the Indemnifying Parties do not assume the defence of any claim or Proceeding resulting therefrom in accordance such Claim (which failure shall be assumed if the Supplier fails to provide the notice prescribed by Section 14.4(a)), the Indemnitees shall, at the expense of the Supplier, contest (or, with the terms prior written consent of this the Supplier, settle) such Claim, provided that no such contest need be made and settlement or full payment of any such Claim may be made without consent of the Supplier (with the Supplier remaining obligated to indemnify the Indemnitees under Section 10.414.3), if, in the written opinion of an independent third party counsel chosen by the Company Representatives, such Indemnitee may defend against such claim or Proceeding in such manner as it may deem appropriateClaim is meritorious. If the Supplier is obligated to indemnify any Indemnitees under Section 14.3, including settling such claim or Proceeding after giving notice of the same amount owing to the Indemnifying Parties, on such terms as such Indemnitee may deem appropriate. If any Indemnifying Party seeks to question the manner in which such Indemnitee defended such claim or proceeding or Indemnitees will be the amount of or nature such Indemnitees’ actual out-of-pocket loss net of any such settlement, such Indemnifying Party shall have the burden to prove by a preponderance of the evidence that such Indemnitee did not defend such claim insurance proceeds received or Proceeding in a reasonably prudent manner. The final determination of any such claim pursuant to this Section 10.4, including all related costs and expenses, shall be binding and conclusive upon the parties as to the validity or invalidity, as the case may be, of such claim against the Indemnifying Partyother recovery.

Defence of Claims. In connection with The Indemnified Party covenants and agrees that, upon becoming aware of any claim that facts or circumstances which may give rise to indemnity under Section 10.1 resulting from or arising out any potential liability for which the Corporation may be required to indemnify the Indemnified Party pursuant to the provisions of any claim or Proceeding against an Indemnitee by this Agreement (a Person that is not a party hereto“Claim”), the Indemnifying Indemnified Party may (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon shall immediately deliver written notice to the relevant IndemniteePresident of the Corporation setting out in reasonable detail the nature of the facts relating to such Claim. If any Claim is made or brought against the Indemnified Party in connection with any of the matters against which the Indemnified Party would be indemnified pursuant to this Agreement, assume upon receipt of the defence notice of the Claim, subject to the provisions of the Act and to the board of directors of the Corporation determining that the Indemnified Party has satisfied the conditions specified in Sections 1(a)(i) and (ii), the Corporation shall, at its expense and in a timely manner, contest and defend against any such claim Claim and take all such steps as may be necessary or Proceeding if all Indemnifying Parties with respect proper to such claim or Proceeding jointly acknowledge prevent the resolution thereof in a manner adverse to the Indemnitee Indemnified Party. The Indemnified Party shall fully cooperate with the Indemnitee’s right Corporation in taking all such steps, and hereby consents to indemnity pursuant hereto in respect the taking of such steps by or on behalf of the entirety of such claim (as such claim may have been modified through written agreement of Corporation and the parties or arbitration hereunder) and provide assurances, satisfactory to such Indemnitee, that the Indemnifying Parties will be financially able to satisfy such claim in full if such claim or Proceeding is decided adverselyIndemnified Party. If the Indemnifying Parties assume Corporation does not in a timely manner undertake the contestation or defence of any such claim or Proceedingthe Claim, the Indemnifying Parties Indemnified Party may do so and, subject to the provisions of the Act and to the board of directors of the Corporation determining that the Indemnified Party has satisfied the conditions specified in Sections 1(a)(i) and (ii), such contestation or defence shall select counsel reasonably acceptable to such Indemnitee to conduct be at the defence expense and risk of such claim or Proceeding, shall take all steps necessary in the defence or settlement thereof and shall at all times diligently and promptly pursue the resolution thereofCorporation. If the Indemnifying Parties shall have assumed the defence outcome of any claim litigation or Proceeding in accordance with this Section 10.4proceeding establishes that the Indemnified Party was not entitled to have the Claim contested or defended at the risk and expense of the Corporation, the Indemnifying Parties Indemnified Party shall be authorized liable to consent repay to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, without the prior written consent of such Indemnitee; provided, however, that the Indemnifying Parties shall pay or cause to be paid Corporation all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof, that the Indemnifying Parties shall not be authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that would apply to any Indemnitee or to its conduct of business; and provided, further, that a condition to any such settlement shall be a complete release of such Indemnitee and its Affiliates, officers, employees, consultants and agents with respect to such claim. Such Indemnitee shall be entitled to participate in (but not control) the defence of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, Associates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Parties in the defence of any claim or Proceeding being defended paid by the Indemnifying Parties Corporation in connection with such contestation or defence pursuant to this Section 10.4. If the Indemnifying Parties do not assume the defence of any claim or Proceeding resulting therefrom in accordance with the terms of this Section 10.4, such Indemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or Proceeding after giving notice of the same to the Indemnifying Parties, on such terms as such Indemnitee may deem appropriate. If any Indemnifying Party seeks to question the manner in which such Indemnitee defended such claim or proceeding or the amount of or nature of any such settlement, such Indemnifying Party shall have the burden to prove by a preponderance of the evidence that such Indemnitee did not defend such claim or Proceeding in a reasonably prudent manner. The final determination of any such claim pursuant to this Section 10.4, including all related costs and expenses, shall be binding and conclusive upon the parties as to the validity or invalidity, as the case may be, of such claim against the Indemnifying Party5.